Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Scott County Public Schools ("SCPS") violated the Open Records Act in not providing emails and texts relating to school business that it stated did not exist. We find the record is insufficient to support a finding that SCPS violated the Open Records Act in not providing emails and texts relating to school business which it stated did not exist.
Geary submitted an open records request to SCPS on May 13, 2015. Geary requested:
copies of all emails between all board members of Scott County Kentucky School District from Jan 1, 2013 up to and including any and all emails sent and received until my request is filled and delivered. I am requesting all emails sent/received on school emails and personal emails pertaining to school business.
I am requesting electronic copies of all files.
Geary submitted a second open records request to SCPS on May 28, 2015. Geary requested "any and all text messages between and among all board members of Scott County School District, from Jan. 1, 2013 until May 29, 2015, in which they are conducting board business."
SCPS responded to Geary's May 13, 2015 request on June 11, 2015. 1 SCPS stated that "two files are included on the provided USB key (FlashDrive) for Robert Haley Conway and Jennifer Holbert. The provided files pertain to the district email system. The district and personal email addresses referenced for the board members are listed below," and provided a list of each board member's email addresses. SCPS responded to Geary's May 28, 2015 open records request on June 11, 2015 as well. 2 SCPS stated:
One file is included on the provided USB key (FlashDrive) for Jo Anna Fryman. The personal telephone numbers referenced for the board members are listed below. . . .
Please note that Mrs. Fryman submitted additional items which have been included in the file named below.
SCPS also attached statements from board members Stephanie Powers and Haley Conway indicating that they did not have any text messages to submit, and stated that board members Ward and Sams did not have any text messages for board business.
Geary initiated this appeal on June 15, 2015. Geary summarized his requests and stated:
I have received the above requested files of emails from the Scott County School District. I have yet to receive requested files of emails from personal email accounts which used personal cell phone, tablet, ipad or laptop or computers at board members residences or business or from privately owned tablets, ipads, laptops, or computers belonging to employers outside of Scott County Kentucky School District. . . .
I have yet to receive all of the requested text messages requested and have in fact, received a copy of an email . . . . 3
During my initial investigation into the above emails I have found instances of Open Meetings violations between board members and possible ethics violations between board members and contractors. There are also instances of board members using their cell phones to either text or email members of the audience and/or other board members during school Board meetings. The individual board member who stated she has no texts available has threads of texted responses to other board members. Please find attached. 4
I hereby formally request that the Attorney General investigate the denial of inspection of my Open Records Request and enforce K.R.S. 61.870 to K.R.S. 61.884, to include board members attempting to subvert the intent of K.R.S. 61.870 to K.R.S. 61.884 by casually stating that there are no "records" to forward to the "Custodian of Records" . . . .
SCPS responded to Geary's appeal on June 23, 2014. SCPS stated:
This office disclosed to Mr. Geary all documents forwarded to us that had been identified as responsive to Mr. Geary's request. After receiving the appeal notice on June 22, 2015, I notified all board members of the appeal and, again requested any additional documents to be submitted . . . .
Additional electronic documents have been provided and are being forwarded to the Attorney General's office . . . and to Mr. Jim Geary.
SCPS also attached statements from each of the board members regarding their text messages. Becky Sams, Stephanie Powers, and Haley Conway stated that they did not have any responsive texts. Jennifer Holbert stated that she had already provided all responsive records. Another email indicated that Jo Anna Fryman had provided a USB drive containing 169 screenshots which were combined into a PDF file. This office received a flash drive containing 169 pages of screenshots of texts from SCPS board member Jo Anna Fryman's phone. Approximately one-third of the texts were between Fryman and SCPS board member Jennifer Holbert, and discussed both school and personal matters. There were also texts between Fryman and other board members, and among all board members, although those texts focused more on school matters and informational updates.
"A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 14-ORD-188. Here, SPCS has stated that it has provided all responsive records that exist. In our limited role as reviewer of denials of open records requests as provided by KRS 61.880(2)(a), we are unable to resolve the factual dispute between Geary and SCPS as to whether all responsive records have been provided:
In the "final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his[/her] request, and from the official custodian in providing the records which satisfy the request." Further, this office has consistently recognized that "it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact." . . . Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided."
12-ORD-065 (citations omitted). "Although the record on appeal once again 'strongly suggests' that additional records may, or even should have been created, ultimately the Attorney General has no basis to depart from that position . . . ." 12-ORD-165. Accordingly, the record on appeal is insufficient to support a finding that SCPS violated the Open Records Act in responding to Geary's requests for emails and texts pertaining to school business.
Geary also alleges violations of the Open Meetings Act, KRS 61.800-850. These violations are not properly before us in an open records appeal, and accordingly we do not address them.
In summary, the record is insufficient to support a finding that SCPS violated the Open Records Act in not providing emails and text messages pertaining to school business which it stated did not exist.
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.
Footnotes
Footnotes
1 KRS 61.880(1) provides that "each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days . . . 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." However, Geary does not raise this issue in his appeal, and accordingly we do not address it.
2 See generally supra note 1.
3 Geary quoted the email from Powers to Fryman, supra note 3.
4 Geary attached two pages of screenshots of text messages, one between Stephanie Powers and Kevin Kidwell, and another between Stephanie Powers and an unidentified person.