Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Knott County Schools violated KRS 61.880(1) if it failed to respond to successfully transmitted open records requests for various records relating to board policies, salaries, postings, and employee records submitted by John Hicks. The Knott County Schools did not, however, violate the Act by notifying Mr. Hicks that the records identified in his request would be mailed to him upon prepayment of reproduction and postage fees in the amount of $ 1.52.
On appeal, Mr. Hicks stated that he submitted open records requests to the Knott County Schools on November 1, 2012, and December 31, 2012, 1 but received no response. Consequently, he advised, he transmitted an open records request by certified mail on March 28, 2013. Again, Mr. Hicks indicated, he received no response. Mr. Hicks stated that he subsequently confirmed, through a school employee, that the certified letter containing his open records request was not retrieved by Knott County School employees or officials but remained in the School's post office box. 2 In correspondence directed to this office after Mr. Hicks initiated his open records appeal, Knott County Schools provided this office with a copy of an April 22, 2013, letter to Mr. Hicks from Knott County Board of Education Secretary Greg Conn informing Mr. Hicks that records responsive to his March 22 request had been compiled and would be mailed to him upon receipt of $ 1.52 in reproduction and postage charges. The response may, therefore, have been untimely but was otherwise proper.
If the Knott County Schools failed to respond, in writing and within three business days, to successfully transmitted open records requests submitted by Mr. Hicks, its inaction constituted a violation of KRS 61.880(1). 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.
It is unclear whether Mr. Hicks' November and December 2012 requests reached the Knott County Schools. His March 28, 2013, request was transmitted by certified mail. If, in fact, that letter was mailed on or about that date but not retrieved until April 18, 2013, and not responded to until April 22, 2013, this delay constituted a violation of the Open Records Act.
The Knott County Schools did not, however, violate the Open Records Act by notifying Mr. Hicks that he must prepay for copies and postage before records responsive to his request would be mailed to him. Both KRS 61.872(3)(b) 3 and KRS 61.874(1) 4 authorize public agencies to require prepayment for copying costs and postage fees in advance of mailing copies where access to records is requested by receipt of copies through the mail. The Knott County Schools' actions in this regard were consistent with the requirements of the Open Records Act.
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.
Distributed to:
John HicksGreg ConnRonald G. Combs
Footnotes
Footnotes
1 Although the Knott County Schools did not dispute receipt of those requests in its May 2, 2013, response to this office's notification of receipt of Mr. Hicks' appeal, Mr. Hicks indicated in his letter of appeal that Superintendent Kim King denied receipt of the requests in a telephone conversation with Mr. Hicks.
2 Mr. Hicks provided this office with a copy of the certified mail receipt but no other documentary evidence to support his allegations relative to the failure of the Knott County Schools to retrieve the request from the Post Office. Knott County Schools does not, however, dispute this allegation. The certified mail receipt indicates that it was retrieved on April 18, 2013, but does not indicate when it was mailed.
3 KRS 61.872(3)(a) and (b) provide as follows:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(Emphasis added.)
4 KRS 61.874(1) provides as follows:
Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
(Emphasis added.)