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 Powell County School District violated the Open Records Act in the disposition of Karen Rose's July 20, 2009, requests for copies of:
. the agenda and minutes from each board meeting where a hand signature for activity accounts for each building PCHA, PCMS, SES, Bowen, and CCE was approved for the present signatures;
. [if not approved by the board,] the document that was utilized to affirm the people responsible for signing activity account checks; and
. the documentation for the activity account signers for PCMS in the year 2002-03 and 2004-05 . . . . [sic.]
The Powell County School District responded to Ms. Rose's request one day later, advising her that the District was "in the process of collecting the requested information" and that it would release the information once it was approved by the agency's attorney. Having received no further communication, Ms. Rose initiated this appeal on August 5, 2009. For the reasons that follow, we find that the District's response was procedurally deficient and substantively incorrect.
On August 10, 2009, attorney Donna R. Hale defended the District's failure to produce the requested record in a written response to this office's notification of appeal. She explained:
1. The new procedures for third person signature on activity account checks would not be finally approved until August 10, 2009.
2. The District was unsure whether documentation relating to these procedures exists inasmuch as "[i]n the past the signatures were provided to the bank via a memo. " Such memos constitute general correspondence which need only be retained for a two year period.
3. Documentation from 2002-2003 and 2004-2005 activity accounts for Powell County Middle School "are in storage and not readily available."
In closing, Ms. Hale stated that "[a]ll of these issues were made known to Ms. Rose at the time of her request."
By letter dated August 11, 2009, Superintendent Evelyn Neely notified Ms. Rose that the only records responsive to the first of her requests were "Board records . . . for the following dates, June 22, 2009, and August 10, 2009." Continuing, Superintendent Neely observed, "The agenda and minutes for June 22, 2009, are included [but o]nly the agenda is included for August 10, 2009, [since t]he minutes from this meeting will not be approved until the September 14, 2009, [meeting] . . . ." With reference to Ms. Rose's second and third requests, Superintendent Neely characterized the responsive documentation as interoffice memos, and indicated:
[A]ccording to the "Records Retention Schedule for State Archives [sic] and Records" general correspondence is only kept for a period of two years.
Because there "had been no changes since [she] took office in July 2008," Superintendent Neely concluded, "no such documentation existed."
The Powell County School District's response to Ms. Rose's request was procedurally deficient. As this office has so often noted, the Open Records Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." See, e.g., 09-ORD-139, p. 4; 09-ORD-007; 08-ORD-250; 06-ORD-180; 05-ORD-134; 04-ORD-138; 01-ORD-140. "The only exceptions to this general rule," we have further opined, "are found at KRS 61.872(4) and (5)." 03-ORD-134, p. 3, cited in 09-ORD-139, p. 6. Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the requested records must be made available within three business days. The District did not invoke either KRS 61.872(4) or 61.872(5) in its original response.
In 09-ORD-139, an open records decision issued by this office on August 25, 2009, the Attorney General determined that the failure of a public agency to afford a requester timely access to the records identified in her request, and to explain the cause for delay beyond three business days, as required by KRS 61.872(5), contravened the provisions of the Open Records Act. In the interest of brevity, a copy of that open records decision is attached hereto and incorporated by reference. We direct the District's attention to pages 4 through 7 of the decision. Unexplained delays in the production of public records are impermissible under the Open Records Act and constitute a violation thereof.
Having waited some seventeen business days for the records identified in her request, Ms. Rose was ultimately afforded access to only three documents, the agenda and minutes of the June 22 Board meeting and the agenda of the August 10 meeting. The District characterized all other responsive records as "general correspondence, " attributing the records' nonexistence to the lapse of the two year retention period for the corresponding record series found at L5304 of the Public School Districts' Retention Schedule. This is not, in our view, the applicable record series or the appropriate retention period.
Record Series L5341 specifically applies to the Student Activity Fund File, more properly denominated the School Activity Fund File, and is said to "document financial activities of the School Activity Fund." 1 Because it is "used for audit purposes and as a comparison from year to year," 2 the Student (School) Activity Fund File is assigned a three year agency retention period, and may only be destroyed after audit. Although some of the records to which Ms. Rose requested access are more than three years old, others may not be. Moreover, the record on appeal contains no reference to post-audit destruction. While no responsive records may still exist, and Ms. Rose may therefore be foreclosed from inspecting, or obtaining copies of them, we find that the District's handling of these records is indicative of possible records mismanagement. Accordingly, we have referred this matter to the Kentucky Department for Libraries and Archives for further inquiry as that agency deems warranted. 3
Ultimately, we cannot afford Ms. Rose the relief she seeks, namely access to documentation relating to the school activity fund. Nor can we declare the failure, or inability, to produce records that no longer exist a violation of the Open Records Act. Nevertheless, we urge the Powell County School District to review the referenced authorities to ensure the public's right of access through proper records management.
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.
Karen RoseEvelyn NeelyDonna R. HaleBarbara Teague
Footnotes
Footnotes
1 Among the records this series may contain are:
The central ledger, individual activity ledger, standard invoices, periodic reports, annual report, interfund transfer slips, treasurers receipts and other documentation.
Records Series L5341, Record Title and Description, Public School District Retention Schedule (enclosed) .
2 Records Series L5341, Record Description and Analysis (enclosed) .
3 See KRS 61.8715 relating to the essential relationship between records management and records access.