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 Fleming County Board of Education violated the Open Records Act in the disposition of Laura Stone's requests for records relating to her presence on school board property. For the reasons that follow, we find that the Board failed to respond timely to two of her requests.
Ms. Stone's first request, dated October 28, 2014, was addressed to Superintendent Brian K. Creasman and asked for "access to and a copy of" the following:
All complaints, accusations, documentation, and records that relate to the banishment of Ms. Laura Stone from the Board of Education office, all school buildings and grounds, parking lots, roads, and walkways of the Fleming County School District, which upon entry would result in law enforcement being contacted and being subject to charges of criminal trespass or interference with the use of public property.
On November 5, 2014, Board attorney Thomas L. MacDonald responded:
This letter is in response to your open records request for information as to why you have been instructed not to make contact with any employees of the Fleming County Schools. Included are photographs sent by you via e-mail, and items dropped off, such as cakes. There are no records as to actual documentation , but plenty of witnesses of you charging past school personnel, and proceeding uninvited to an employee's office, on more than one occasion, when you have no legitimate business with any employee of the Fleming County Schools.
You will continue to be banned from coming onto school property with no legitimate business. As was stated in Mr. [Greg] Emmons' letter to you dated September 29, 2014, should you have actual legitimate business to conduct with the Fleming County Schools, you must make arrangements with him through his office ? in advance in order to enter school property.
(Emphasis added.) Thus, Mr. MacDonald asserted that there were no records responsive to her request.
On November 7, 2014, Ms. Stone made her second request, addressed to Mr. MacDonald and asking for "access to and a copy of all procedures and policies used by the Fleming County school district to ban individuals from their property." She further stated that "all copies of documentation from the previous open records request have not yet been provided, as I am aware of the original letter dated September 29, 2014 and my initial response dated October 2, 2014, which are related to the issue of my banning and should be on file." Ms. Stone additionally inquired:
[A]m I correct in my understanding that the Fleming County school district is threatening to take legal action against me if I email, write to, speak with, or otherwise engage in any type of communication with anyone employed by Fleming County Schools? If this is the case, I request a copy of all information related to the broadening of the ban from Fleming County School's property to include contact with any Fleming County district employee.
No timely response to this letter was made pursuant to KRS 61.880(1), which requires a written disposition of open records requests within three days, exclusive of weekends and holidays.
Ms. Stone's final request, dated November 24, 2014, and addressed to Mr. MacDonald, was a follow-up to the previous requests. Evidently no timely response was issued to this letter either.
Ms. Stone has submitted into the record some further communications from the school district which she believes relevant. On February 25, 2015, Superintendent Creasman e-mailed Ms. Stone, apparently in response to a request for a meeting:
As I stated to you, you are not to be in any school, including the district office, or on any school campus. You fail to understand the gravity of your decisions not to properly sign-in as a visitor and your continued efforts to send unsolicited cards, gifts and personal emails to staff members of Fleming County Schools.
You have no reason to be on any campus at this point. As Superintendent of Fleming County Schools, I am the only one who can give you permission to be on school campus. Your request to come on any school campus in Fleming County or come to the Fleming County Schools' district office is denied. You have no legitimate reason to make this request. All board policies and Kentucky General [ sic ] Statutes can be found online.
Later that same day, presumably in response to further communication from Ms. Stone, Mr. Creasman e-mailed the following:
Ms. Stone, you are prohibited from being on any Fleming County school campus. I am not in the district, in fact not even in Kentucky, therefore, I will not be meeting with you. If you look closely, the Superintendent has the final authority on determining who is permitted to be on school campuses. There are no public records to view , therefore, you have no need to be on any school campus.
I, along with the district staff, will no longer be communicating with you directly. You may contact our board attorney with questions or comments.
(Emphasis added.)
Ms. Stone appealed to the Attorney General on March 18, 2015. On March 27, 2015, Mr. MacDonald responded as follows:
Mrs. Stone's first open records request dated October 28, 2014 was responded to by me on November 5, 2014. There were no policies and procedures that addressed this particular matter so there was nothing to provide her in those forms of Policies and Procedures . ? [S]he is not barred from school properties when having actual and legitimate business with the Fleming County Schools. ? As stated in the November 5th letter, she simply needs to make arrangements in advance to enter a school property, have actual school business, and leave her gifts to school employees at home.
(Emphasis added.) Ms. Stone submitted a reply on March 30, 2015. She reiterates her argument that, in response to her first request, she should have received a copy of an initial letter banning her from school property without legitimate business. She also states:
Superintendent Creasman ? directed me to online policies. Therefore, I am aware that policies concerning visitors to the school and civility exist, which are related to the policies requested in the open records request dated November 7, 2014.
Evidently a factual issue exists regarding whether the Board has any policies or procedures that would have been responsive to Ms. Stone's second request. Since no specific policies or procedures of the Board have been brought to our attention, however, we are unable to address the question of their relevance. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. If, however, as Ms. Stone argues, any relevant policies or procedures did exist, then those should have been provided. 1
A similar issue exists as to the existence of documents responsive to Ms. Stone's original request. She maintains that she was banned from school premises by means of a letter dated September 29, 2014, and that she responded in writing on October 2, 2014. The Board, however, continues to state that no records existed. If that correspondence did exist, it was responsive to Ms. Stone's October 28 request for "records that relate" to that incident or situation and should have been provided. Again, the record is insufficient for us to resolve this factual issue.
In conclusion, the Board failed to make a timely disposition of Ms. Stone's second and third requests under KRS 61.880(1). The correspondence alleged by Ms. Stone should have been provided in response to her first request, if it in fact existed. Likewise, if any relevant policies or procedures existed, as Ms. Stone alleges, they should have been provided in response to her second request. On the other hand, if such records did not exist, or were not responsive to the request, then the Board discharged its obligation under the Open Records Act by so stating.
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 proceedings.
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