NOT TO BE PUBLISHED
February 28, 1995
In Re: Robert Flashman/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in requests and complaints submitted by Professor Robert Flashman to the University of Kentucky. While we do not have copies of Professor Flashman's letters to the University, which were apparently dated June 8, 1994 and June 28, 1994, Mr. Donald B. Clapp, who at that time was the University's Official Records Custodian, responded to Professor Flashman in letters dated June 13, 1994 and July 1, 1994.
In his letter of appeal to the Attorney General, received July 6, 1994, Professor Flashman presented three issues. One of those issues concerned the alleged failures of the University to post regulations in or near Rooms 104, 110 and 2 of the Administrative Building relative to the process involved in obtaining access to and copies of public records. Professor Flashman maintains that the University is in violation of KRS 61.876.
KRS 61.876 requires each public agency, including, of course, the University to adopt rules and regulations concerning access to public records, the protection of public records, and the procedures to be followed to obtain access to and copies of public records.
In 93-ORD-83 and 94-ORD-4 this office rendered decisions involving the University's obligations under KRS 61.876. At pages two and three of 94-ORD-4 we stated that the Attorney General is not empowered to enforce its decision by the imposition of penalties. Our function, in regard to appeals under the Open Records Act, is to render a written decision stating whether the agency violated the provisions of that Act. KRS 61.880(2). We have fulfilled that function relative to the University's obligations under KRS 61.876. As pointed out in the prior decisions, KRS 61.880(5)(b) creates a mechanism by which a prevailing party may enforce an Attorney General's decision from which a timely appeal has not been perfected.
This office has previously issued decisions relative to the University's duties and obligations under KRS 61.876 and if the University has not implemented those decisions the enforcement remedy is in the appropriate circuit court rather than with this office. See 95-ORD-19 involving Davy Jones and the University of Kentucky.
Another issue presented by Professor Flashman is what he describes as the University's failure to "thoroughly school" its employees in the underlying principles and mechanics of the Open Records Act.
Professor Flashman is referring to a phrase which appeared in 94-ORD-73, at page five, which needs to be considered within the context in which it was presented:
As custodian [of the records], he is directly responsible for maintaining public records as well as responding to records requests. In discharging these duties, he should make every effort to insure that University personnel are thoroughly schooled in the underlying principles, as well as the mechanics of, the Open Records Law. We urge the University and Mr. Clapp to bear these observations in mind.
As previously noted, the basic function of this office in handling appeals under the Open Records Act is to render a written decision stating whether the public agency violated the Act. While the "observation" expressed in 94-ORD-73 relative to the wisdom of public agency employees being "thoroughly schooled" in the principles and mechanics of the Open Records Act is, in our opinion, still sound advice from the standpoint of legal, business, and other considerations, there is no statutory requirement that a public agency institute any particular type of training program in regard to the Open Records Act.
If Professor Flashman desires to pursue the issue of the University's alleged continuing failure to adopt and post rules and regulations pursuant to KRS 61.876, that matter must be directed to the appropriate circuit court for consideration and enforcement. Neither that issue nor the matter of the alleged deficiencies in or the lack of a training program present subjects which this office can address in an appeal under the Open Records Act.
The third issue presented by Professor Flashman concerns the University's failure to state on the posted notice required by KRS 61.876 the specific address of the University's Official Custodian of Records.
KRS 61.876, as previously stated, requires every public agency to adopt rules and regulations concerning access to public records, the protection of public records, and the procedures to be followed to obtain access to and copies of public records. Every public agency is required to display a copy of those rules and regulations.
The items of information that must be included in those posted rules and regulation are, as set forth in KRS 61.876(1):
(a) The principal office of the public agency and its regular officer hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
The statute clearly indicates that the public agency's posted notice of rules and regulations must include, in part, the address of the custodian of the public agency's records. Evidently some kind of posted notice existed in June of 1994 and while this office has not seen a copy of that document, the public agency would be in violation of KRS 61.876(1) if it did not set forth the specific address of the public agency's custodian of records in the posted document.
Either Mr. Flashman or the University or both of them may challenge this decision by initiating action in the appropriate circuit court. Pursuant to 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.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision have been mailed to:
Professor Robert Flashman
3220 Blenheim Way
Lexington, KY 40503
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032