March 10, 1995

In re: Anthea Mary Boarman/Morehead State University


This matter comes to the Attorney General on appeal from Morehead State University's response to Ms. Anthea Mary Boarman's request to inspect the Sex Harassment Investigation Manual described in the University's Personnel Policy PG-6.

On December 2, 1994, Ms. Boarman requested from the Director of Human Resources, Morehead State University, a full copy of PG-6, Morehead State University's policy regarding sexual harassment complaints. Ms. Boarman indicated she had a partial copy, which refers to a Sex Harassment Investigation Handbook, which she did not have. She requested to see a full copy of the handbook.

On December 13, 1994, Ms. Boarman wrote a follow-up letter to Dr. Ronald Eaglin, President, Morehead State University, stating, in part, that despite her request, under the Open Records Act, to see the Sex Harassment Investigation Manual described in PG-6, she was given only PG-6, with no manual. Ms. Boarman further stated in her letter that the letter constituted a second request to see the manual.

In her December 28, 1994, appeal letter to this office, Ms. Boarman states that she received a copy of Personnel Policy PG-6 with no manual attached. There was no accompanying letter from the University.

On January 12, 1995, Mr. John G. Irvin, Jr., counsel for the University in this matter, responded to this office, by letter, stating that Michael Seelig, Affirmative Action Officer, Morehead State University, had responded to Ms. Boarman's open records request to inspect the University's Sex Harassment Investigation Manual by letter dated January 5, 1995. A copy of Mr. Seelig's response was attached to Mr. Irvin's letter. Mr. Seelig, in his letter, stated that the University could not provide a copy of the manual because it did not exist. He explained that although the creation of such a manual was envisioned when the Board of Regents approved the policy (PG-6), the University Affirmative Action Committee has not yet taken on the task of devising a document that addresses the varied situation contexts in which sexual harassment investigations occur.

It is the decision of this office that the University was procedurally deficient and in violation of the Open Records Act in failing to timely respond in writing, setting forth the reason for not granting Ms. Boarman's request to inspect a copy of the manual.

KRS 61.880(1) provides:

If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record 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.

The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

In the future, the University should take steps to insure the compliance with KRS 61.880(1).

It is further the decision of this office that the University's failure to comply with the procedural requirements is mitigated by its response to Ms. Boarman on January 5, 1995, in which it explained that it could not provide her a copy of the manual as it did not exist and further explained the mention of the manual in PG-6.

Ms. Boarman and Morehead State University may chal- lenge this decision 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.






Distributed to:

Michael Seelig

Affirmative Action Officer

Morehead State University

201 Howell-McDowell Ad. Bldg.

Morehead, KY 40351-1689

John G. Irvin, Jr.

McBrayer, McGinnis, Leslie & Kirkland

163 West Short Street

Suite 300

Lexington, KY 40507-1361

Anthea Mary Boarman

P.O. Box 236

Morehead, KY 40351