Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Knox County Board of Education ("Board") violated the Open Records Act in its disposition of D. Randall Jewell's November 20, 2008, request for records relating to the Knox Central High School parking lot. For the reasons that follow, we find that the Board violated KRS 61.880(1), and failed to meet its statutorily assigned burden of proof, in denying Mr. Jewell's request.
In his November 20 request, by way of a letter addressed to Board attorney Timothy Crawford, Mr. Jewell informed the Board that he represented the estate of Joshua Bair, who was killed in a collision outside the Knox Central High School. His letter stated in part:
I would request copies of any agreements between the School Board and either the Sheriff's office or the Barbourville City Police regarding traffic control to be supplied or that is being delivered to the school system. If there is no written agreement, I would like to know what the policy is and what the agreement was. Further, I would request copies of the plans for the parking lot as it exists and entrances and exits. Further, all minutes of any meetings wherein discussions were had regarding the design of the exits, entrances and parking lots and the considerations of any safety factors regarding same.
? Further, I would request copies of any agreements between the School Board and the architects [responsible for] the parking lot design[.]
The first response to Mr. Jewell's letter was not sent until December 10, 2008, and came from Brian Ross of the Hanover Insurance Group:
We are currently conducting an investigation regarding this loss and in anticipation of litigation we are unable to voluntarily provide the documents requested in your letter. We will continue to review and consider all requests as the investigation proceeds.
On December 11, 2008, Mr. Jewell sent Timothy Crawford a substantially identical letter to the original November 20 request, except that it bore the prominent heading " OPEN RECORDS REQUEST. " Mr. Crawford replied on December 15:
I received your Open Records request today, December 15, 2008 and have provided a copy to Superintendent Walter T. Hulett, Custodian of Records.
Your request asks for a large amount of information and we will begin reviewing this and responding as soon as possible.
On December 18, 2008, Mr. Jewell sent a follow-up letter to Mr. Crawford, asking: "If at anyway possible, could you send me copies of the site plans on a disc regarding Knox Central High School as soon as possible." After this point, it appears that no further written communications occurred.
In this appeal initiated on April 13, 2009, Mr. Jewell describes the final disposition of his request:
It is my understanding that information was being accumulated for compliance. I received a phone call from Brian Ross, the adjuster for the Hanover Insurance Group on Thursday, April 2, 2009 at approximately noon. I was informed that there were no documents to be forthcoming regarding my open records requests.
The response to this appeal was submitted by Board attorney Charley Greene Dixon, Jr., on April 22, 2009, and states as follows:
Attached hereto, 1 please see Exhibit "B", a letter from Brian Ross, Liability adjustor to Jewell Law Office, PLLC dated December 10, 2008, in response to the open records request at issue. This correspondence explains that an investigation regarding the loss in question is ongoing and in anticipation of litigation and that we are unable to voluntarily provide the documents requested.
We find that the Board violated the Open Records Act in several respects.
KRS 61.880(1) establishes guidelines for a public agency's response to an open records request. That statute provides, in relevant part:
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.
(Emphasis added.) In addition, KRS 61.880(2)(c) expressly provides that "[t]he burden of proof in sustaining the action shall rest with the agency." Read together, these provisions mandate an agency response that contains "particular and detailed information" and not a "limited and perfunctory response . . . ." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Not only was the letter from Mr. Ross limited and perfunctory, but it failed to state the exemption relied upon and moreover, without explanation, was dated nearly three weeks after Mr. Jewell's November 20 request. All of these deficiencies were in violation of the Open Records Act.
Furthermore, Mr. Crawford's response to the December 11, 2008, follow-up request was procedurally deficient. KRS 61.872(5) requires any delay in the release of a public record in excess of three business days to be accompanied by "a detailed explanation of the cause ? for further delay and the place, time, and earliest date on which the public record will be available for inspection. " Merely stating that the request asks for a "large amount of information" is not a sufficiently "detailed explanation" under KRS 61.872(5). 95-ORD-27, p. 6. Since Mr. Crawford's December 15 response contained neither a detailed explanation for the delay nor a statement of when and where the public records would be made available, the Board violated this procedural requirement of the Open Records Act.
Finally, the April 2 telephone call from Mr. Ross did not comply with KRS 61.880(1)'s requirement of a written disposition. The information given to Mr. Jewell, if correctly reported by him, was also ambiguous. A representation that "there were no documents to be forthcoming" could mean either that no responsive documents existed, or that the Board was refusing to disclose the documents for no stated reason. In light of the December 10 letter from Mr. Ross, which states that "we are unable to voluntarily provide the documents requested, " this office must infer that the latter is the case and some responsive documents exist.
Because the Board is statutorily assigned the burden of proof, it must not only cite the relevant exemption or exemptions authorizing nondisclosure, but also must explain the application of the exemption or exemptions to the records withheld. 95-ORD-3. Moreover, "the basis for denial must ? be articulated in terms of the requirement of the statute." Id. (citing OAG 89-20). Since Mr. Dixon's response to this appeal consists entirely of a reference back to the December 10 letter, which in turn cites no exemption from disclosure under KRS 61.878, we must conclude that the Board has not met its statutory burden of proof to sustain its denial. Accordingly, the Board must provide the documents requested by Mr. Jewell.
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.
D. Randall Jewell, Esq.Charley Greene Dixon, Jr., Esq.Walter T. Hulett, SuperintendentBrian Ross, Liability Adjuster
Footnotes
Footnotes
1 The response included no attachments or exhibits.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -