Request By:
Anthony William Riviello, Jr.
Richard Butler
David Wilson
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Breckinridge County School District violated the Open Records Act in the disposition of Anthony W. Riviello, Jr.'s, March 17, 2008, request 1 for "a real and true copy of the ESS Student Goal Report for [his] daughter . . . for Summer 2006, with a current 2008 date." In particular, Mr. Riviello requested that the "report have a run date of 2008 and include a notarized letter (with a signature) stating that the report is a real and true copy maintained in a regular business-like manner." For the reasons that follow we find that the District, having provided Mr. Riviello with what it maintains is the only extant copy of the requested report, discharged its statutory duty under the Open Records Act. Mr. Riviello's requests for additional verification of the record, and that it reflect a particular date, exceeds the mandate of the Act.
In his March 12 request, Mr. Riviello objected to the District's disposition of earlier requests for the same record, complaining that he had received "the same copy of the report with . . . handwritten notes on it and a stamp from the Breckinridge County [Board of Education]." Continuing, he observed:
[The District] should know how to access this record if indeed it exists, as [the District] has faxed a copy of an ESS record dated Oct. 2006. I have made this same request . . . twice and not received a notarized copy. Upon advice of counsel we need an updated copy with no handwritten notes for our personal records and possibly a court proceeding, necessitating the notarization . . . If this record from ESS Summer 2006 does not exist, please send a letter stating such.
In a belated response apparently faxed to Mr. Riviello on April 18, 2008, the Board released "a true copy of the ESS Student Goal Report notarized and signed to date for [his daughter] , summer 2006," but explained that the Board only maintains "a paper copy from the 2006 ESS term and cannot fulfill [his] request that it have a run date of 2008."
In supplemental correspondence directed to this office following commencement of Mr. Riviello's appeal, Assistant Superintendent Richard Butler reaffirmed that the "two year old program report will not print with a 2008 date." Mr. Butler indicated that "[t]he same information was sent plus reports on the child's progress information in reading and math in February."
Shortly thereafter Mr. Riviello refuted the District's position, acknowledging receipt of the reports but complaining that the reports "have handwriting on them and have dates of Oct 2, 2006." On this basis, he questioned the authenticity of the reports, observing:
I believe that Mr. Butler's statement that it is not possible to print an ESS record from Summer 2006 with a current date is erroneous. The entire state of Kentucky used a 9.0.00 version of STI software in school year 2006-07 to record the date for the ESS program. Each school system was required to send a collective data report to KDE and keep a copy of the data at the district level. My wife and I consulted the STI coordinator at Shelby County Schools, and she was able to print a report for an elementary student who attended ESS Summer 2006 on January 25, 2008. If Shelby County Schools STI coordinators are able to print a report from 2006, why can't Breckinridge County?
Noting certain discrepancies in the reports previously produced, Mr. Riviello again requested "a clean copy of the record with no handwriting and a current print date."
It is the decision of this office that although the Breckinridge County School District erred in failing to respond in writing, and within three business days, to Mr. Riviello's March 17 request per KRS 61.880(1), the District ultimately discharged its duty under the Open Records Act by providing him with a copy of the only existing record in its possession that was responsive to his request, and it has no statutory duty over and above this. Pursuant to KRS 61.872(3)(b), the District complied with Mr. Riviello's request for a copy of his daughter's ESS student goal report by faxing him a copy of the report which it currently maintains dated October 2006 and containing handwritten notes. The Open Records Act requires nothing more.
On several occasions this office has recognized that, in general, "[w]hat the public gets is what [the agency] has and in the format in which [the agency] has it." OAG 91-12, p. 5; 2 see also, 95-ORD-9; 99-ORD-68; 01-ORD-225; 03-ORD-122. The District discharged its statutory duty by releasing a copy of the report dated October 2006 and containing handwritten notes. Moreover, we have recognized that it is not incumbent on an agency "to certif[y] the appropriate records in such manner that the same may be introduced as evidence in a court of law," opining that "[s]uch a requirement does not exist in the Open Records Act. " 3 03-ORD-207, p. 4; 03-ORD-226; 07-ORD-109; 07-ORD-133. The District discharged its statutory duty by releasing an unnotarized copy of the report. 4
This office has been advised by the District that its standard practice relative to retention of the requested reports is to maintain them both electronically and in hard copy. The District candidly acknowledges that the automated version of the report no longer exists. Having repeatedly furnished Mr. Riviello with copies of the hard copy report dated October 2006, which it does maintain, and acknowledged the loss or destruction of the electronic copy, we see no reason to question the District's veracity.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Mr. Riviello's request was dated March 12 but was sent via certified mail on March 17.
2 In this case, the public does not enjoy a right of access to the records identified in Mr. Riviello's request due to confidentiality requirements codified at 20 USC § 1232g, the Family Educational Rights and Privacy Act, and its state counterpart, KRS 160.700.
3 Conversely, a requester cannot be required to pay the higher fee associated with a certified copy, as authorized, for example, under the county clerks fee schedule found at KRS 64.012, when he or she does not request a certified copy. See, e.g., 96-ORD-3 (county clerk improperly charged requester $ 5.00 for a copy of a certified deed when she expressly requested an uncertified copy).
4 Although not statutorily required to do so, the District has now provided Mr. Riviello with a notarized copy of the report.