December 18, 1996

In re: Cecelia Mullins/Floyd County Board of Education

Open Records Decision

This matter comes to the Attorney General on appeal from the response of the Floyd County Board of Education to the open records request of Ms. Cecelia Mullins for certain records of the Floyd County School System.

By letter dated November 7, 1996, Ms. Mullins submitted an open records request for the following records:

1. Written documentation as to what Jeffery Mullins is classified as in the Floyd Co. School System. (Disability category)

2. Written documentation as to whether he is covered under IDEA or Section 504 or both.

3. A copy of all Federal money Floyd Co. received for the `95 - `96 school year.

4. A copy of all State money Floyd Co. received for the `95 - `96 school year.

In her letter of appeal, dated November 14, 1996, Ms. Mullins indicates she has yet to receive a response to her request. She asks this office to determine whether the action of the Floyd County School System is consistent with the Open Records Act.

On November 19, 1996, we sent a “Notification of Receipt of Open Records Appeal” to the Floyd County School System and enclosed a copy of Ms. Mullins's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Phillip D. Damron, Esq., on behalf of the school system, provided this office with a response to the issues raised in this appeal.

In his response, Mr. Damron states that Ms. Mullins was informed by telephone that none of the documents requested in Items 1 through 4 were maintained at the offices of the Floyd County Board of Education. He further states that the records requested relating to the classification of the student in Items 1 and 2 are maintained at the student's school and are available for Ms. Mullins's inspection and copying. In regard to Items 3 and 4, Mr. Damron indicates that the Board of Education does not maintain records in the format requested, but, in the alternative, provided her with a “recap sheet.” Mr. Damron enclosed with his response a copy of the school system's written response, dated November 25, 1996, to Ms. Mullins's request which substantiates the facts set forth in his response to this office.

For the reasons which follow, we conclude that the actions of the school system were consistent in part and inconsistent in part with the Open Records Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

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 agency action.

To the extent that the Floyd County School System failed to respond in writing within three business days to Ms. Mullins's request, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

Turning to the substantive issues, the school system acted consistent with the Open Records Act, as to Items 1 and 2, by informing Ms. Mullins that records relating to the student's classification were located at that student's school and making the records available for her inspection and copying.

The school system also acted consistent with the Act, as to Items 3 and 4, by informing Ms. Mullins that it did not maintain records in the format requested relating to federal and state money received during the fiscal year. A public agency is not required to create a document that does not already exist in order to satisfy a request. 96-ORD-92. To the extent the school system does not maintain records containing the information in the format Ms. Mullins requests, its response did not violate the Open Records Act.

As an alternative and in an attempt to make the requested information available to Ms. Mullins, the school system provided her with a recap sheet of the federal and state moneys received for the 1995-96 school year. Accordingly, since the records are not maintained in the format requested, we find that the school system substantially complied with the Open Records Act by providing her with a summary of the requested information.

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:

Cecelia Mullins

P. O. Box 511

Harold KY 41635

Phillip D. Damron

Attorney at Law

P. O. Box 107

Prestonsburg KY 41653