October 17, 1996

In re: Davy Jones/University of Kentucky

Open Records Decision

This matter comes to the Attorney General on appeal from the University of Kentucky's responses to Mr. Davy Jones's open records requests to inspect certain of the University's records. In the instant appeal, Mr. Jones raises only procedural issues. He states in his letter of appeal that “because of the unfinished activity between myself and the University on the substantive aspects they are not ripe for review. I thus do not raise in the present appeal any substantive aspects.”

By letters dated August 16, 1996 and August 22, 1996, Mr. Jones sought to inspect certain documents of the University. On each occasion, the University responded in writing that it did not have the requested records. However, because of prior misunderstandings between Mr. Jones and the University over the precise records requested, games of semantics or out of an abundance of caution, the University provided Mr. Jones with a copy of President Wethington's January 25, 1995 memorandum and a copy of a statute, at no cost, just in case it might be the records he was seeking, but had not precisely so identified in his request. A copy of these records were provided to Mr. Jones along with each of its letters of denial that it had the records requested.

Mr. Jones argues that the University has subverted the intent of the Open Records Act by sending him these gratuitous, unsolicited records. Moreover, he argues that the University further subverted the intent of the Act by not following the precise procedural directions set forth in his request. In each of his requests, Mr. Jones asked that the University provide him a time that he could personally inspect the requested

records during the Thanksgiving week and that a person, acting as his agent, would come by the University three days after receipt of the request to pick up its letter of response.

On each occasion, the University mailed to Mr. Jones its letter of response and the above referred-to memorandum. On each occasion, it also provided a copy of the same to Mr. Jones's agents when they came to the University's office to pick up the letter of response. (Note: Mr. Jones states, in a subsequent response to the University, that he did not receive the second mailing because he directed that when the mail came to him it would continue to stay in the mailing system unopened and be rerouted back to the University. In addition, there is some dispute as to when or what in fact the agent did or did not pick up at the University's office relating to Mr. Jones's August 22 request. However, consideration of these issues is unnecessary, in light of this office's resolution of the instant appeal.)

After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the University provided this office with a response to the issues raised on appeal. In his response, Mr. George J. DeBin, Vice President for Fiscal Affairs and Official Records Custodian for the University, states that in order to comply with its statutory duty to respond to an open records request within three working days, the University mailed its responses to Mr. Jones and also kept a copy of its responses at its office pursuant to Mr. Jones's statement that he would have his agents pick up the letters of response. Mr. DeBin also indicates that copies of the letters of response and attachments are still available for Mr. Jones's inspection in Room 11 of the Administration Building during Thanksgiving week.

Mr. Jones, in this appeal, protests as to the manner in which the University responded to his open records requests and asked this office to determine whether the responses subverted the intent of the Open Records Act. For the reasons which follow, we conclude that it did not.

KRS 61. 880(1) requires that a public agency respond to an open records request in writing within three business days after receipt of the request. The University did this by mailing its responses to Mr. Jones and also making a copy of its responses available at its office for Mr. Jones's agents to pick up. Moreover, if Mr. Jones prefers to inspect the University's responses personally during the Thanksgiving week, that option also remains available to him.

We conclude that the University, in attaching copies of the memoranda and the statute at no cost to Mr. Jones, did not subvert the intent of the Open Records Act. As explained by the University, these records, although not responsive to his literal request, were provided Mr. Jones in case they were what he was seeking but had not expressly so identified. This appears to be a good faith effort by the University to be responsive to Mr. Jones's open records requests and not an attempt to foist nonresponsive records upon him to subvert the intent of the Act.

In 93-ORD-15, this office stated:

In rendering a decision under the Open Records Act, the Attorney General is not concerned with “heroes and villains.” Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.

We conclude that the University complied with Mr. Jones's requests by informing him in writing that the records he requested did not exist. Alternatively, providing him responses by mail with copies of records at no cost which, although not responsive to his literal request, may or could have been the records he was seeking, or making the agency responses and attachments available for his agents to pick up at the University, or making them available for his personal inspection at the University during Thanksgiving week substantially satisfied Mr. Jones's requests and the Open Records Act.

Mr. Jones cites 95-ORD-52 in arguing that a requester is entitled not to be mailed copies of records prior to his right to on-site inspection. This may be so in the context of a requester being charged for copies of records prior to his inspection. However, in this case, Mr. Jones was not charged for the copies he received and his request and option to inspect the agency's letter of response and the attached records on-site is still available to him. Thus, the holding of 95-ORD-52 is inapposite to the factual context of this case.

Accordingly, it is the decision of this office that the University in its responses did not subvert the intent of the Open Records Act. Because the foregoing is dispositive of this appeal, we need not address other issues raised by Mr. Jones in his letter of appeal.

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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Davy Jones

c/o William Jacobs

173 N. Limestone Street

Lexington KY 40507

George J. DeBin

Vice President for Fiscal Affairs and

Official Records Custodian

11 Administration Building

University of Kentucky

Lexington KY 40506-0032