September 28, 1994
IN RE: David L. Turner/Floyd County Schools
OPEN RECORDS DECISION
Mr. David L. Turner challenges the actions of the Floyd County Board of Education relative to his May 9, 1994, request for access to public records. Those records relate, in general, to the expenditure of public funds, and the use of public employees, in the renovation of privately owned property which is leased by the Floyd County Schools as office space for its employees. Mr. Turner is an employee of the school system, and a resident of Floyd County.
On behalf of the school system, Superintendent Stephen W. Towler responded to Mr. Turner's request on May 11, 1994. The Superintendent agreed to make the records requested by Mr. Turner available to him for inspection during regular business hours. He sent Mr. Turner copies of the leases which Mr. Turner requested.
Because Mr. Turner is an employee of the school system, he was reluctant to exercise his right of inspection during his regular work hours, which, needless to say, correspond with the system's regular hours. He therefore asked Ms. Jackie Newman, an individual who resides outside Floyd County, to submit a request for the same documents, excluding
the leases which he had received. On June 10, Superintendent Towler responded to Ms. Newman's request. For purposes of resolving this appeal, we reproduce that response in its entirety:
The only information we have that is readily available regarding your request is the total material cost of $2,956.06 and labor costs of $6,527.08. Other information you have requested will require a large amount of research in going through hundred of purchase orders, work orders and pay records. Due to our heavy work schedule and shortage of employees, we are unable to complete this research in the prescribed time. In our opinion, your request places an unreasonable burden on this office in accordance with KRS 61.872(6). It is possible that this request may be in violation of cited statute in that it appears to be intended to harass and disrupt the functions of this office. It also appears that this request is being made merely to allow an in-county resident to avoid the requirement of reviewing the records at their usual repository.
However, we are not denying your request. We will comply with the spirit of the open records law and provide information or records that are properly requested. KRS 61.872(3)(b) specifies that requests must be "precisely described." You should specify in your request work order and purchase order numbers as well as vendor names and invoice numbers.
You are advised that all of the records you have requested are available at their respective storage areas for your inspection on any business day from 8:00 a.m. to 4:00 p.m. If you request copies to be mailed to you, you will be required to pay postage and a nominal charge per copy payable in advance by cashier check. Personal checks will not
be accepted. We estimate that copies of board orders and accompanying bills and attachments may total several hundred pages. If you so desire, you may forward us a cashier check for $100.00 made payable to Floyd County Board of Education,and we will return any excess to you after copies are made.
We are asked to determine if the Floyd County Schools violated the Open Records Act in responding to Mr. Turner's request, and the request which was subsequently submitted by Ms. Newman. For the reasons set forth below, we conclude that the school system did not violate the Act in responding to Mr. Turner's request. Because Mr. Turner cannot properly initiate an appeal on behalf of another party whose request has been denied, we respectfully decline to render a decision on that portion of the appeal pertaining to the school system's denial of Ms. Newman's request. This does not preclude Ms. Newman from filing an appeal on her own behalf.
KRS 61.872(3) provides:
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.
Mr. Turner acknowledges that because he resides in Floyd County, the school system is not obligated to send him copies of the records he requested. This much is not in dispute.
Unfortunately, this means that he is effectively foreclosed from access to the records, unless he can arrange for inspection during nonworking hours, such as his lunch hour. Nevertheless, the school system's response to Mr. Turner's request did not violate the Open Records Act.
KRS 61.880(2)(a) provides:
(a) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
It is the opinion of the Attorney General that this language precludes a third party from filing an appeal on behalf of the party aggrieved by the public agency's denial of his or her request. Only the aggrieved party has standing to assert a claim of wrongful nondisclosure. The Kentucky Supreme Court recently confirmed this view. In Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), the court observed:
In the event the request for access is denied, the agency must state the specific exemption which authorizes withholding the record and a party denied access may seek review by the Attorney General . . . .
(Emphasis added.) The court reiterated the prevailing standard for determining standing as "a judicially recognizable interest in the subject matter" which is not "remote and speculative"
. . . ." Beckham, supra, at 579, citing City of Louisville v. Stockyards Bank & Trust Co., Ky., 843 S.W.2d 327 (1992). Because he is not the party aggrieved by the school system's actions, Mr. Turner is not the proper party to bring this appeal.
Our decision is in no way intended to discourage Ms. Newman from initiating an appeal on her own behalf. The questions raised by the school system's response to her request are different from the issues treated here.
The Floyd County Schools and Mr. Turner may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Superintendent Stephen W. Towler
Floyd County Schools
69 North Arnold Avenue
Prestonsburg, KY 41653-1124
Mr. David L. Turner
P. O. Box 57
Drift, KY 41619