NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

93-ORD-76

 

June 14, 1993

 

 

 

 

 

IN RE: Joni M. Swift/Marshall County Public Schools

 

OPEN RECORDS DECISION

 

This matter comes to the Attorney General on appeal from the actions of the Marshall County Public Schools in responding to Ms. Joni M. Swift's requests to inspect certain records in its custody. In a letter addressed to Superintendent Kenneth Shadowen, dated February 15, 1993, Ms. Smith requested a copy of lists "of all committee members on the Marshall County Technology Committees, the Disciplinary Committees, and the Family Resource Committees for the two grants which are being written." In addition, Ms. Swift requested access to any lists containing the names of the members of other committees of which she was not aware. On the same date, Ms. Swift requested a copy of a document identified as "Program Advisory No. 93-PRIM-103" from Mr. Mitchell Thompson, Primary Supervisor for the Marshall County Public Schools. Ms. Swift is a representative of "Class Act Resource," a citizens group committed to enhancing Kentucky's educational system, and her request was made under the Open Records Act.

 

In her letter of appeal to this Office, Ms. Swift indicates that she received no response to her request for the "Program Advisory" bulletin from Mr. Thompson, and that Superintendent Shadowen only partially satisfied her request. Superintendent Shadowen provided her with copies of lists containing the names of advisory council members and conduct code committee members, but did not release lists containing the names of members of the Technology Committee, Prep Tech Committee, or Facilities Committee. Neither Superintendent Shadowen nor Mr. Thompson responded in writing to Ms. Swift's request.

 

We are asked to determine if the Marshall County Public Schools violated the Open Records Act by failing to respond in writing, and within three business days, to Ms. Swift's February 15 requests. For the reasons set forth below, we conclude that its actions constitute a procedural violation of the 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 action.

 

Ms. Swift submitted her open records requests on February 15, 1993. To date, the Marshall County Public Schools have failed to formally respond. Although two documents were released to Ms. Swift, neither Mr. Thompson nor Superintendent Shadowen notified her in writing why they would not release the remaining documents. Nor did they advise her what exception(s) they relied on in denying her request.

 

The Marshall County Public Schools violated the Open Records Act to the extent that Superintendent Shadowen and Mr. Thompson failed to advise Ms. Swift, in writing, and within three days of her request, whether they intended to honor her request. The Marshall County Public Schools should immediately issue a written response to Ms. Swift.

 

KRS 61.991(2)(a) establishes penalties for officials of public agencies who willfully conceal or destroy any record with the intent to violate the Open Records Act. Such conduct is punishable by the county attorney as a Class A misdemeanor.

If evidence exists that the requested records are being willfully concealed, it should be presented to the county attorney for prosecution.

 

The Marshall County Public Schools 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

 

 

jgh/817

 

 

Distributed to:

 

Superintendent Kenneth Shadowen

Marshall County Public Schools

Route 7, Box 102

Benton, KY 42025

 

Mr. Mitchell Thompson

Primary Supervisor

Marshall County Public Schools

Route 7, Box 102

Benton, KY 42025

 

Ms. Joni M. Swift

Route 3, Box 231

Benton, KY 42025