NOT TO BE PUBLISHED
April 4, 1997
In re: James Whitehead/Green County Board of Education
Open Records Decision
The question presented in this appeal is whether the Green County Board of Education violated the Open Records Law in responding to James Whitehead's January 20, 1997, request for records. We find that the Board's response was procedurally deficient, but correct in all other respects.
Mr. Whitehead requested copies of school related records pertaining to his daughter, Shaunna M. Whitehead. He also requested that each of his daughter's teachers prepare a letter summarizing her conduct, attitude, social interaction, and problems or difficulties that need to be addressed. The Green County Board of Education did not respond to his request. On March 6, 1997, Mr. Whitehead appealed to the Attorney General.
On behalf of the Green County Board of Education, Regina Abrams responded to Mr. Whitehead's appeal on March 14, 1997. She argued that the requested records are not subject to an open records request because they are excluded from public inspection by KRS 61.878(1)(k) and 20 USC § 1232g, the Family Educational Rights and Privacy Act. Nevertheless, she explained that because Mr. Whitehead is Shaunna Whitehead's father, and his parental rights have not been terminated, he is entitled to inspect her education records. Noting that the Family Educational Rights and Privacy Act establishes a forty-five day response time for education records requests, Ms. Abrams stated that Shaunna's records are being compiled and will be sent to Mr. Whitehead in five business days.
Ms. Abrams denied Mr. Whitehead's request for summaries prepared by Shaunna's teachers asserting that such records do not exist. She noted that neither the Open Records Law nor the Family Educational Rights and Privacy Act requires the Board of Education to create records which do not exist, and that the Board of Education is therefore not obligated to provide them.
The Green County Board of Education has agreed to release Shaunna Whitehead's education records to Mr. Whitehead. We therefore decline to render a decision on this part of his appeal. 40 KAR 1:030 Section 6. Two questions remain:
Did the Board violate the Open Records Act by failing to respond in writing, and within three business days, to Mr. Whitehead's request?
Did the Board properly deny Mr. Whitehead's request for summaries prepared by Shaunna's teachers on the grounds that no such records exist, and that it is not obligated to create records to satisfy his request?
It is our opinion that the Green County Board of Education violated KRS 61.880(1) by failing to comply with the procedural requirements of the Open Records Act, but that the Board did not violate the Act by failing to provide copies of nonexistent records.
KRS 61.880(1) establishes 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.
Although Mr. Whitehead requested copies of records whose disclosure is governed by federal law, his request was made under the Open Records Law. That law requires a written response within three business days. The Green County Board of Education did not respond to Mr. Whitehead's request until after this appeal had been filed. We believe that the Board should have notified him in writing, and within three business days, that that portion of his request relating to his daughter's education records would be honored, and that portion of his request relating to teacher summaries must be denied. The notification should have included a brief explanation of the reasons for the Board's partial denial of his request. The Board's failure to comply with the procedural requirements found at KRS 61.880(1) constitutes a violation of the Open Records Law.
We do not believe that the Board's denial of Mr. Whitehead's request for teacher summaries of his daughter's conduct, attitude, and social interaction constitutes a violation of the Open Records Law. Ms. Abrams states that neither state nor federal law mandates the creation of such records, and that the Board does not maintain such records. It is a fundamental principle of the Open Records Law that a public agency cannot furnish access to records which do not exist. 96-ORD-164; 96-ORD-101; OAG 91-220; OAG 86-38. Nor is an agency obligated to create records to satisfy a particular open records request. 96-ORD-139; 95-ORD-48. We therefore conclude that the Green County Board of Education properly denied this portion of Mr. Whitehead's request.
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
Amye L. Bensenhaver
Assistant Attorney General
James Whitehead #102667
Eastern Kentucky Correctional Complex
P. O. Box 636
West Liberty KY 41472
English, Lucas, Priest & Owsley
1101 College Street
P. O. Box 770
Bowling Green KY 42102-0770