TO BE PUBLISHED
April 6, 1995
In Re: Robert Flashman/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request submitted by Professor Robert Flashman to the University of Kentucky. While we do not have a copy of Professor Flashman's letter to the University, which was apparently dated October 29, 1993, it contained in part the following request:
I request a copy of each notification sent to the Attorney General by the University of Kentucky describing that a court action had been filed against the University on the matter of access to University records under the Open Records law, from 1976-present. I point out that the Open Records Law requires that such notification be sent to the Attorney General, making such notification thus a statutorily-required record.
Mr. Donald B. Clapp, who at the time was the University's Official Records Custodian, responded to Professor Flashman in a memorandum, dated November 3, 1993, and advised in regard to the request quoted above as follows:
In most cases the person filing suit against the University, or any other state agency, is required to serve the Summons and Complaint on the Attorney General. Thus the notification provided by KRS 61.880 would have been satisfied without action by the University. If additional notices have been provided, copies cannot be located in the files.
In his letter of appeal to the Attorney General, received May 3, 1994, Professor Flashman submitted four questions for "review," but only one of those dealt with an issue previously submitted to the University's Official Records Custodian. The only one of the four questions that will be considered in this decision is, "Was it a violation for the University to fail to prepare and submit to your office the notifications specified in KRS 61.880(3)?"
Not only were the other three matters not presented initially to the records custodian, making them inappropriate for a decision by this office on an appeal, but those other matters involve the creation of records and records management pursuant to KRS 171.410 to KRS 171.740. While a legislative enactment, codified as KRS 61.8715 and effective July 15, 1994, established "an essential relationship" between the Open Records Act and KRS 171.410 to KRS 171.740, that statutorily created relationship did not exist when the request involved here was presented to the custodian of records and will not be considered in this appeal.
KRS 61.880(3), as it appeared prior to July 15, 1994, provided in its entirety as follows:
Each agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding the enforcement of KRS 61.870 to 61.884.
Thus, the University was statutorily mandated to notify the Attorney General of any actions filed against the University in Circuit Court regarding enforcement of the Open Records Act. The University cannot look to or depend upon someone else to fulfill that duty. Although KRS 61.880(3) was amended, effective July 15, 1994, to specifically provide that the Attorney General shall not be named as a party in Circuit Court actions regarding enforcement of the Open Records Act, precluding the Attorney General from receiving a summons and complaint from one of the other parties, this office has always maintained that it was not a necessary and proper party to such an appeal. The notice, therefore, is unlikely to come from one of the other parties and, in any event, the duty to notify the Attorney General has been placed on the public agency.
If the University has prepared written notices to the Attorney General relative to cases involving the Open Records Act filed against the University in Circuit Court, those written notices would, of course, constitute a "public record" as that term is defined in KRS 61.870(2). As public records they would be subject to public inspection and copying.
The record before us does not definitely establish whether the required notices were sent to the Attorney General. However, Mr. Clapp's letter may be reasonably construed as an admission that the University did not send the notices. We therefore find that the notices were not sent.
It is the decision of this office, relative to the one issue which has been properly presented to this office as an appeal under the Open Records Act, that the University violated the Open Records Act to the extent that it failed to notify the Attorney General pursuant to KRS 61.880(3) that actions relative to the enforcement of the Open Records Act had been filed against the University in Circuit Court.
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 the 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