NOT TO BE PUBLISHED
August 14, 1995
In re: Glenn L. Burns/Jessamine County Schools
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal of the Jessamine County School Board's response to Mr. Glenn L. Burns's open records request to inspect records concerning all matters relating to the "New High School" to be built in Jessamine County.
In his open records request, addressed to Mr. Eugene S. Peel, Chairman, Jessamine County School Board, Mr. Burns requested to inspect the following records:
1. Any papers, correspondence, documents, plans, blueprints and contracts involving the "New High School" to be constructed in Jessamine County, and, any changes in square footage or structure since such "New High School" was approved in the Facility Plans for Jessamine County on July 7, 1994 by the State Board of Education.
2. Any notes and/or minutes of any meetings outside the regular Jessamine County School Board Meetings involving the "New High School" to be built in Jessamine County.
In his letter of appeal, Mr. Burns states that he is appealing the refusal without explanation of Mr. Peel to allow him to inspect the records in Mr. Peel's possession concerning all matters relating to the new high school to be built in Jessamine County.
Subsequent to receipt of Mr. Burns's letter of appeal and pursuant to 40 KAR 1:030, this office sent notice to the Jessamine County Schools that an open records appeal had been filed.
As authorized by 40 KAR 1:030, Mr. Lawrence W. Allen, Superintendent, Jessamine County Schools, provided this office with a written response to the issues raised in the letter of appeal. Mr. Allen's response indicates a copy was sent to Mr. Burns.
Superintendent Allen's response, in relevant part, states as follows:
When Mr. Burns presented his request to inspect the records of the Jessamine County Board of Education, he presented two letters, both enclosed. One was addressed to the superintendent and the second to the chairman. Please note that the letter addressed to the chairman contains two of the requests in the letter to the superintendent. The items are identical. At no place in the letter does Mr. Burns ask to inspect the records in the "possession" of Mr. Peel. Since the request in the chairman's letter was exactly the same as the request contained in two of the requests in the superintendent's letter, it was correctly assumed that the request addressed to the chairman was for the official records of the Board of Education.
Following Mr. Burns' March 6 request, he presented himself at the board office and spent approximately four hours inspecting records. From this it would appear that his request to inspect records was met.
For the reasons which follow, it is the decision of this office that the response of the Jessamine County Schools was in substantial compliance with the Open Records Act.
A review of Mr. Burns's open records requests simultaneously sent to Mr. Peel, as Chairman of the Jessamine County School Board, and to Mr. Allen, as Superintendent of the Jessamine County Schools, reveals that Mr. Burns requested to inspect the same records from the Superintendent that he requested from the Chairman.
In his response to Mr. Burns's letter of appeal, Superintendent Allen states that when Mr. Burns presented his requests to inspect the records of the Jessamine County Board of Education, he presented both the request of Chairman Peel and Superintendent Allen. Contrary to his statement in the letter of appeal, Mr. Burns did not ask to inspect the records in the "possession" of Mr. Peel in his open records request.
Superintendent Allen indicates he assumed that the request addressed to Mr. Peel, as chairman of the school board, was for the official records of the Board of Education. Superintendent Allen further states that following the March 6, 1995, request, Mr. Burns came to the office of the Board of Education and spent approximately four hours inspecting records and that the Board met Mr. Burns's open records request.
As to the substantive issue, it is the conclusion of this office that the Jessamine County Schools substantially complied with the Open Records Act.
From the facts presented, Mr. Burns was allowed to inspect the records he requested. If, in fact, Mr. Burns is seeking to inspect records which may or may not be in Chairman Peel's possession, he should renew his open records request and so state.
The response of the Jessamine County Schools was procedurally deficient to the extent that it failed to either respond to Mr. Burns's request to Chairman Peel or to notify him whether Chairman Peel had the requested records or that the request made to Chairman Peel was being forwarded to Superintendent Allen for response as the official custodian of the Jessamine County records.
The official custodian is further charged, pursuant to KRS 61.880(1), with the duty of issuing a written response within three business days, advising the requester whether the agency intends to comply with his or her request. If the agency intends to deny, in whole or in part, inspection of any record, the response shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
Moreover, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Thus, the Jessamine County Schools' response, on behalf of Chairman Peel, was procedurally deficient and inconsistent with the Open Records Act.
In the future, the Board should respond in writing to each open records request, as required by KRS 61.880(1), and, in addition, should notify the requester, if the person upon whom the request is made does not have custody or control of the requested documents, who has custody of the records and where they are located as required by KRS 61.872(4).
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.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Eugene S. Peel, Chairman
Jessamine County School Board
404 Linden Lane
Nicholasville, KY 40356
Lawrence W. Allen, Superintendent
Jessamine County Schools
501 East Maple Street
Nicholasville, KY 40356
Glenn L. Burns
149 Murphys Lane
Nicholasville, KY 40356