23-ORD-233
September 5, 2023
In re: Denise Gillman/Oldham County Schools
Summary: Oldham County Schools (“the District”) violated the Open
Records Act (“the Act”) when it invoked KRS 61.872(5) to delay access to
records without notifying the requester of the earliest date on which the
records would be available. However, the District’s delay of ten days to
provide responsive records was reasonable. The District did not violate
the Act when it did not provide a record that does not exist.
Open Records Decision
On May 12, 2023, Denise Gillman (“Appellant”) submitted a request to the
District seeking 17 categories of records related to the District’s finances. In a timely
response on May 19, the District stated it was “working diligently to meet the
deadline” to respond to the request, but “[d]ue to the number of items” the Appellant
requested, the District asked for “an extension period to the supply the requested
records.” The Appellant asked the District when she could expect responsive records,
but the District responded that it would send the records when the total request was
“complete,” which it expected would be “the middle of next week.”
On May 26, 2023, the District provided some responsive records. However, in
response to the Appellant’s request for “the total compensation paid to classroom
teachers in 2022-2023,” it claimed no records exist because “payroll codes are
separated by funding source.” Because “[c]lassroom teachers are paid from multiple
funding sources,” the District did not possess a record reflecting the “total
compensation paid to teachers.” In response to the Appellant’s first six requests for
documents reflecting “the total amount of funds” required to support various raises
and expenditures for the 2023-2024 school year, the District claimed the responsivedocuments were “drafts” because they had not yet been approved by the Board. This
appeal followed.
Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] 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 five (5) day period, of its decision.” KRS 61.880(1). However, if a
requested record is “in active use, storage, or not otherwise available,” a public agency
may delay inspection if it states the earliest date on which the record will be available
and provides a detailed explanation for the cause of delay. KRS 61.872(5). Here, the
District did not state the earliest date on which the records would be available.
Accordingly, it did not comply with KRS 61.872(5). However, given the breadth of the
Appellant’s request, which sought records in 17 categories, the District’s delay of ten
business days to produce the responsive records in its possession was not
unreasonable.
On appeal, the District maintains it properly withheld records responsive to
the Appellant’s first six requests for records relating to funding for raises and other
expenditures because its final budget for the school year had not been adopted at the
time of the request. Nevertheless, the District has now provided the Appellant with
the draft versions of those budget proposals. Accordingly, any dispute regarding these
records is now moot. See 40 KAR 1:030 § 6.
Although the District claims the tentative draft budget it provided to the
Appellant contains several categories of information related to teacher compensation,
the District reiterates that it does not possess a record responsive to the Appellant’s
request for the “total compensation” of teachers during the 2022–23 school year. The
District states it would have to create a record to reflect the “total compensation” for
teachers. Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to present a prima facie case
that the requested records do or should exist in the agency’s custody or control. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the
requester establishes a prima facie case that records do or should exist in the agency’s
custody or control, “then the agency may also be called upon to prove that its search
was adequate.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3
(Ky. 2013) (citing Bowling, 172 S.W.3d at 341).
Here, to make a prima facie case, the Appellant claims all compensation
information is maintained in “Munis Self-Service (MSS),” which is the software usedby the District’s financial department. The District’s website describes this software
as allowing individual employees to check their “total compensation.”1 While the
District’s website informs teachers they are able to check their total compensation, it
does not state the software is capable of generating a report that reflects the total
compensation of all teachers in one record. The District claims it is unable to do so,
and no record reflecting the total compensation of all teachers exists. Although the
District could perhaps locate the total compensation of each teacher individually and
add them together, the Act does not require a public agency to gather information not
regularly kept as part of its records to satisfy a request. See Dep’t of Revenue v. Eifler,
436 S.W.3d 530, 534 (Ky. App. 2013). Accordingly, the Appellant has not made a
prima facie case that a record documenting the total compensation for all teachers
during the 2022–23 school year exists, and the District did not violate the Act when
it denied the Appellant’s request on that basis.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#270
Distributed to:
Denise Gillman
Eric Farris
Suzanne Hundley
Jason Radford
1 See
https://www.oldham.kyschools.us/departments/finance/munis-payroll-infor…
(last
accessed Sept. 5, 2023).