TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

93-ORD-46

 

April 19, 1993

 

 

 

 

IN RE: Eugene King/Phelps High School Site Based Decision

Making Council

 

 

OPEN RECORDS DECISION

 

 

This matter comes to the Attorney General on appeal from the actions of the Phelps High School Site Based Decision Making Council relative to Mr. Eugene King's February 26, 1993, request for copies of the minutes of the Council's meetings. The Council failed to respond to Mr. King's initial request. On March 10 he resubmitted his request, reminding the Council that the Open Records Law requires a public agency to determine within three business days whether it will comply with the request, and to notify in writing the person making the request of its decision.

 

In an undated letter, Mrs. Elizabeth Compton, Principal of Phelps High School, advised Mr. King that the Council would comply with his request. She enclosed a computer disk containing the minutes of the meetings, and directed him to send the school $5.00 "to cover expenses." She further advised him that the council does not accept checks "on the recommendation of [its] auditor."

 

In his letter of appeal to this Office, Mr. King explains that he does not own, and does not know how to use, a computer. It is his position that he has, in effect, been denied access to the requested records.

 

We are asked to determine if the Phelps High School Site Based Decision Making Council subverted the intent of the

Open Records Law short of denial of inspection by releasing the records to Mr. King in a format to which he has no means of gaining access. For the reasons set forth below, we conclude that the Council subverted the intent of the law, and should promptly arrange for inspection of the requested records by releasing them to him in paper form, or by providing suitable facilities for the inspection of the records, i.e., by arranging with Mr. King for scheduled use of the Council's computer, and instructions in its use, so that he is afforded reasonable access to the records.

 

We begin by noting that the Council's failure to respond, in writing, to Mr. King's initial request within three business days constituted a procedural violation of the Open Records Law. KRS 61.880(1) sets forth procedural guidelines for agency response to a request for records under the law. 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.

 

Mr. King's initial request was submitted on February 26, 1993. He received a copy of Mrs. Compton's undated response on April 1, 1993. Well over a month elapsed between the date of his request and the date of receipt of the Council's response. We urge Mrs. Compton and the Phelps High School Site Based Decision Making Council to review the cited provision to insure that future responses conform to the Open Records Law.

 

This appeal presents a novel question: Whether an agency may elect to release copies of records in any format it

chooses without regard to the requesting party's ability to access those records. We believe that an agency is prohibited from exercising such unfettered discretion by both the spirit and the letter of the Open Records Law. KRS 61.872(1) provides:

 

All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.

 

KRS 61.872(3)(a) and (b) provide that a person may inspect the public records during the regular office hours of the public agency or by receiving copies of the public records from the public agency through the mail. Moreover, KRS 61.876(1) provides that each public agency must "adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, . . . to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection." These rules of law are consistent with the spirit of the law, codified at KRS 61.871 "that free and open examination of public records is in the public interest . . . "

 

Although this Office has held that the Open Records Law does not "provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced," OAG 89-81, p. 5, we believe that production of records in a format which renders them inaccessible, at least as to the person requesting them, constitutes a subversion of the law. Mr. King requested "copies" of the minutes of the Council's meetings. He undoubtedly assumed that he would be provided with "hard copies" of the minutes; instead, he received a computer disk. Mrs. Compton provided no formatting instructions, nor did she offer to make available to Mr. King the Council's computer for use in reviewing the records contained on the disk.

 

In OAG 90-50, this Office held that the failure of an agency to permit a requester to use its reader-printer and cassette player to review 35 mm film containing the minutes of the agency's meetings, and cassette tapes of those meetings, constituted a violation of the Open Records Law, specifically KRS 61.872(1). We directed the agency to arrange for scheduled

use of its equipment so that the requester would be afforded reasonable access to the records.

 

In our view, OAG 90-50 is dispositive of the present appeal. The Phelps High School Site Based Decision Making Council must provide Mr. King with hard copies of the minutes of its meetings, or arrange with Mr. King to use its computer, and assist him in accessing the records contained on the disk.

 

It should also be noted that the Council's imposition of a $5.00 charge for reproduction of the requested records may constitute a violation of the reasonable fee provision of the Open Records Law. KRS 61.874(2). That statute provides:

 

The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required.

 

This provision has been interpreted to mean that the fee charged for copies must be based on the cost of maintaining copying equipment by purchase or rental, and the supplies involved. Unless the Council can demonstrate that its actual cost in reproducing the minutes on disk, excluding the cost of staff time expended, is $5.00, it must recalculate the charge to conform to KRS 61.874(2).

 

The Phelps High School Site Based Decision Making Council may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

 

jgh/524

 

Distributed to:

 

Mrs. Elizabeth Compton, Principal

Phelps High School

Post Office Box 131

Phelps, Kentucky 41553

 

Mr. Eugene King

Box 263

Phelps, Kentucky 41553