September 28, 1994
IN RE: Jerri Cockrel/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Jerri Cockrel, Extension Public Policy Specialist at the University of Kentucky, to the University's Custodian of Records, Mr. Donald B. Clapp, on June 3, 1993. Ms. Cockrel requested access to the results of a survey circulated by the Agriculture Faculty Council among the College of Agriculture faculty relating to the University's open records policies. Mr. Clapp responded to Ms. Cockrel's request on June 8, advising her "that the results of the survey have been compiled but the compilation has not yet been distributed." He explained that only one copy existed, and that that copy was in the possession of Ms. Janice Schach. Although Ms. Schach would be out of the office until June 26, 1993, Mr. Clapp assured Ms. Cockrel that upon her return, he would obtain a copy of the compilation for her.
Ms. Cockrel did not receive a copy of the record on June 26, but was instead forced to send a reminder to Mr. Clapp on July 8. She was notified that the record would immediately be made available, but did not, in fact, receive it until July 14, 1993. The record which Ms. Cockrel received on this date was the formal tabulation of survey results which was distributed to all College of Agriculture faculty.
In her letter of appeal, Ms. Cockrel asserts "that certain College of Agriculture and University public employees are improperly stalling public access to records of the College . . . ." Moreover, she notes, to further frustrate access, the College has created an atmosphere of intimidation directed at
those who request records. As an example, Ms. Cockrel relates that a formal policy has been established whereby faculty members are notified of third party requests for information from their personal files, and are apprised of the identity of the requester. She asks this Office to declare the University's
response a violation of the Open Records Act, and its policy inconsistent with the Act. For the reasons set forth below, we conclude that the University violated the Act by failing to afford her timely access to the requested record.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. The only exceptions to this general rule are found at KRS 61.872(4) and (5). 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 agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
It is the opinion of this Office that the University of Kentucky failed to provide Ms. Cockrel timely access to the record identified in her request. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Ms. Cockrel's original open records request was submitted on June 3, 1993. She received the formal tabulation of survey results on July 14, 1993. Well over a month elapsed between the date of her original request and the date on which she received the record. We believe that a delay of this duration
is inconsistent with the Open Records Act. Had the University released the document on June 26, our conclusion might be different. If the document was not available until that date due to Ms. Schach's absence, the University's position was justified. However, any delay beyond the date of her return was, in our view, unjustified.
In 94-ORD-108, pp. 32, 33, this Office dealt with the second issue raised by Ms. Cockrel, to wit, the University's apparent attempt to frustrate access to public records. It is instructive to quote that decision at length:
This Office is not empowered to curb agency abuse of the Open Records Law, or the abuse of individuals who exercise their rights under that law, by the imposition of penalties. Our authority is defined by statute. As we noted at page 3 of 94-ORD-8:
Pursuant to KRS 61.880(2), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party wishes him to do so, and to issue a written decision stating whether the agency violated the Open Records Act. Although generally an appeal to the Attorney General is precipitated by an agency's denial of a records request, an appeal may come to him in a different posture. For example, a public agency may refuse to comply with the procedural requirements of the Act or otherwise subvert the intent of the Act short of denial of inspection. KRS 61.880(4). In these instances, the Attorney General is also empowered to issue a decision which, if not appealed to the circuit court within thirty days of issuance, has the force and effect of law. There are, however, limitations on the Attorney General's authority relative to the Open Records Act.
While this Office strongly discourages agency attempts to frustrate access to
public records, and finds that such conduct clearly contravenes the spirit and intent of the Open Records Law, we cannot afford Mr. Jones the relief he apparently seeks.
As we noted in that decision, Ms. Cockrel's remedy lies in the courts through enforcement of the various penalties contained in the Open Records Act. If evidence exists that the University, or any other public agency, has intentionally subverted the intent of the Open Records Act, that evidence should be brought to the attention of the appropriate authorities who may proceed to a determination of these matters.
Ms. Cockrel and the University may challenge this decision by initiating action in the appropriate circuit court. 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donald B. Clapp
Vice President for Administration
and Official Records Custodian
University of Kentucky
104 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Ms. Jerri Cockrel
Extension Public Policy Specialist
University of Kentucky
College of Agriculture
Lexington, KY 40506-0064