NOT TO BE PUBLISHED
March 24, 1993
93-ORD-38
IN RE: Stephen A. Elzey/University of Louisville
OPEN RECORD DECISION
This matter comes to the Attorney General on appeal from the actions of the University of Louisville relative to Mr. Stephen Elzey's request to inspect the minutes of the University School of Law's February 8, 1993, faculty meeting. Mr. Elzey submitted his original request to Ms. Judy Bristow, who is employed in the Office of the Dean, on February 25, 1993. He resubmitted the request on March 2, and requested in addition a copy of the School of Law's "bylaws or organizational rules," and "all other documents that are relevant to determine the policy of the School of Law in respect to the transfer of all grades and credit-hours from a foreign school."
On March 3, Mr. Elzey submitted a third request. This request was directed to Dr. William J. Morison, the University's Official Custodian of Records, and was aimed at securing access to any and all current rules, guidelines, standards and procedures governing the activities of the School of Law's Admissions Committee, as well as rules, guidelines, standards and procedures for specifically identified periods from 1975 to 1987. Mr. Elzey incorporated his prior requests by reference.
In a letter dated March 8, 1993, Dr. Morison responded to Mr. Elzey's request. He advised Mr. Elzey that he was
"in the process of identifying the records requested and should be able to respond further in the next week or ten days." Dr. Morison did not offer any additional explanation for the delay. It is Mr. Elzey's position that the University is deliberately circumventing the Open Records Law.
We are asked to determine if the University of Louisville violated the Open Records Law in its response to Mr. Elzey's requests. For the reasons set forth below, we conclude that the University failed to comply with KRS 61.872(4) and (5) in responding to these requests.
KRS 61.872(1) provides that all public records must be open for inspection by any person, except as otherwise provided by law. This mandatory disclosure provision is qualified at KRS 61.872(4) and (5), which state:
(4) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
(5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
The University of Louisville violated the Open Record Law to the extent that Ms. Bristow failed to advise Mr. Elzey that she did not have custody or control of the minutes, and furnish him with Dr. Morison's name and location. Dr. Morison erred in failing to offer a detailed explanation for the delay in affording Mr. Elzey access to the records, and advising him of the place, time, and earliest date they would be available for inspection.
In OAG 92-35, this office addressed the issue of timely access to public records. There, we concluded that "a determination of what is a 'reasonable time' for inspection
turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of separating exempt and nonexempt materials." OAG 92-35. Dr. Morison has not attempted to demonstrate that the task of gathering the documents and separating any exempt information necessitates a delay of one week to ten days.
We believe OAG 92-35, a copy of which is attached, is dispositive of this appeal. The University is directed to promptly issue a written response to Mr. Elzey, advising him whether it intends to honor his request, and, if so, the earliest possible date the records will be available for inspection. If the University denies all or any portion of his request, it must cite the exception to mandatory disclosure authorizing its position, and briefly explain how the exception applies to the records withheld.
The University of Louisville may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
ABM:jgh
Enclosure
Distributed to:
Dr. William J. Morison
University Archives and Records Center
Ekstrom Library
University of Louisville
Louisville, KY 40292
Mr. Stephen A. Elzey
128 Crestmore Avenue
Louisville, KY 40206