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 Graves County School District violated the Open Records Act in the disposition of Sharon and Tommy Morefield's December 10, 2008, request for records relating to their son, including disciplinary records, written statements of witnesses or bus monitors, video recordings from the bus ridden by their son, but only as those recordings relate to their son, from March 2005 to December 2008, and the policies and procedures governing bus drivers. For the reasons that follow, we find that the record on appeal contains insufficient evidence to conclusively establish a violation of KRS 61.880(1). Clearly, however, the District violated KRS 61.872(1) in failing to provide the Morefields with a copy of the policies and procedures they requested, referring them instead to the District's website.
In a letter submitted to this office after the Morefields initiated their appeal, Director of Pupil Personnel, Jennifer Smith, advised this office that she "responded" to their December 10 request on December 15 by "provid[ing] Tommy Morefield with the materials they had requested to the best of [her] understanding at that time[, . . .] includ[ing] all information in the student file of their son." Continuing, she noted that "[i]n one of [her] meetings with Tommy Morefield, [she] gave him a copy of the page in the student handbook concerning transportation. " Having apparently failed to address the Morefields' final request, Ms. Smith referred them to Chapter 6 of the District's policy and procedure manual "which is published for public view through the District's website at www.graves.kyschools.us." In closing, Ms. Smith offered to provide the Morefields with assistance in locating the manual on the District's website. While these actions suggest an attempt to accommodate the Morefields, they were not entirely consistent with the requirements of the Open Records Act.
Although Ms. Smith indicates that she "responded" to the Morefields' request, she does not indicate that her response was in writing. Nor does she provide this office with a copy of her written response. Although it is by no means clear, it appears that she met with Mr. Morefield after receiving the records request, and provided him with copies of his son's student file in the course of that meeting. She states that "in one of her meetings with Tommy Morefield, [she] also gave him the page in our student handbook concerning transportation. " While we commend her for her efforts in this regard, those efforts may have fallen short of the statutory requirements found at KRS 61.880(1).
KRS 61.880(1) establishes requirements for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The District's receipt of the Morefields' December 10, 2008, open records request, which was clearly identified as such, triggered these statutory requirements. It was thereafter incumbent on the District to notify the Morefields in writing, and within three business days, whether their request would be honored, in whole or in part, and, if any part of their request was denied, to provide a statement of the statutory exception authorizing the withholding and a brief explanation of how the exception applies to the records withheld. The record on appeal contains no proof that the District responded in writing. We are reluctant to assign error to the District for its apparent failure to respond in writing, in view of the fact that Ms. Smith promptly made arrangements to meet with Mr. Morefield, providing him with some of the records identified in the request at that meeting. Nevertheless, the Morefields were entitled to a written response and none appears in the record on appeal. Moreover, it is unclear whether, in addition to those portions of the policy and procedure manual relating to bus drivers, other records, such as videotapes from the bus and witness statements, were withheld. While there may have been a statutory basis for denying the Morefields' access to the latter records, none appears to have been articulated. In view of the lack of clear evidence proving or disproving a violation of KRS 61.880(1), we are unable to conclusively resolve this question. We do, however, encourage the Graves County School District to review that provision to ensure that it strictly complies with the requirements of the Act in responding to future open records requests. Accord, 09-ORD-023.
Assuming that all other existing records identified in the Morefields' request were released to him, we nevertheless find that the Graves County School District violated KRS 61.872(1) in referring the Morefields to its website for a copy of its policy and procedures manual, rather than providing them with a copy. In 05-ORD-050, this office:
question[ed] whether furnishing an open records requester with a website address where records responsive to his or her request can be located, in lieu of affording him or her an opportunity to inspect the records onsite or receive copies of the records by mail upon payment of a reasonable copying charge, satisfies that agency's obligations under the Open Records Act. We remind the [agency] that the Open Records Act generally contemplates records access by means of onsite inspection or receipt of copies through the mail. KRS 61.872(3). While a requester may wish to avoid the effort associated with conducting onsite inspection, or the expense associated with payment for copies, he or she may not have access to a computer or the necessary skills to obtain the records electronically.
05-ORD-050, p. 2, note 1. Shortly thereafter, we found that the Scott County Board of Education violated KRS 61.872(1) when it provided a requester with a website address as "a substitute for complying with the mandatory terms of KRS 61.872(1)-(3)." See also, 06-ORD-273. Here, as in the referenced decisions, the Morefields may prefer this mode of inspection. It is not one, however, that the Open Records Act specifically contemplates. If the District has not already done so, it should provide the Morefields with a copy of the referenced policy and any other nonexempt record identified in their request which it has not already provided to them.
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.
Sharon MorefieldTommy MorefieldJennifer SmithBrady M. Link, Jr.David Hargrove