June 19, 1996

In re: Marjorie Clark/Harlan County Public Schools


This matter comes to the Attorney General on appeal from the Harlan County Public Schools' response to various open records requests filed by a group of concerned parents whose children attend Holmes Mill Elementary School. On May 15, 1996, these parents, including Marjorie Clark, the complainant in this appeal, requested access to documents relating generally to Holmes Mill Elementary, and other schools in the district. Having received no written response to their requests within three business days, the parents, through Ms. Clark, initiated this open records appeal.

In the meantime, Superintendent Grace Ann Tolliver responded to the parents' requests. In a letter dated May 20, 1996, she advised:

I have received the twelve page request from various parents within the Holmes Mill School. As eleven requests came under one facsimile cover sheet, I think it may be one request.

Gathering this volume of varied information will require much time and effort. Therefore, I would ask that you come to this office and inspect these items to determine which ones you want or need.

Please be aware you have the right to inspect public records. Not only do you have that legal right, you are welcome to review these. Additionally, the staff here will assist you any way we can.

In a cover letter addressed to this office, to which her May 20 response was attached, Superintendent Tolliver explained that the Holmes Mill Elementary parents reviewed and copied the school system's records for three hours on May 27. The parents were encouraged to return “at their pleasure.” For this reasons she maintains that their requests were not denied, and were answered in a timely fashion.

In her letter of appeal, Ms. Clark questions the accuracy of records previously reviewed, and the propriety of the decision to close Holmes Mill Elementary based on these records. Although she states that she and the other parents had submitted earlier requests for records, and expresses dissatisfaction with the handling of those requests, she did not attach copies of those requests, or of the school system's responses to those requests. Accordingly, we confine our analysis to the records access issues arising under KRS 61.870 to 61.884, and in particular the Harlan County Public Schools handling of the May 15 requests, since this was the only open records appeal that was properly perfected. We do not address the questions she raises relative to the accuracy of the records, or the school's closure, since these issues cannot be resolved in an open records appeal. With respect to the issues arising under KRS 61.870 to 61.884, we find that the Harlan County Public Schools did not violate the Open Records Act in its handling of Ms. Clark's request and those of the other parents.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. The Harlan County Public Schools fully complied with this provision by responding within three days, excluding Saturdays and Sundays, to the parents' requests, and indicating that their requests were granted.

Moreoever, KRS 61.872(3)(a) and (b) provide:

(3) 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. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

The school system complied with this provision by affording the parents immediate access to the requested records. Pursuant to KRS 61.872(3)(b), requesters who reside in, or whose principal place of business is in, the county in which the public records are located may be required to personally inspect the records as a precondition to obtaining copies. Therefore, Superintendent Tolliver properly exercised her discretion in requiring the parents to review the records before obtaining copies. Her response was entirely consistent with the Open Records Act.

With respect to the other issues she raises, we remind Ms. Clark:

This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.

96-ORD-120, p. 3. The Attorney General is not empowered to resolve disputes concerning school closure, or audit a school system's records, in an open records appeal.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall benotified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Grace Ann Tolliver


Harlan County School Board

251 Park Road

Harlan KY 40831

Marjorie Clark

P. O. Box 4

Holmes Mill KY 40843