NOT TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

93-ORD-89

 

August 3, 1993

 

 

 

IN RE: Connie Branham/Clinton County Public School System

 

 

OPEN RECORDS DECISION

 

 

This matter comes to the Attorney General on appeal from the actions of the Clinton County Public School System, through its Superintendent, Dr. B.C. DeSpain, in responding to Ms. Connie Branham's May 4 and 5 open records request. On those dates, Ms. Branham requested access to the monthly expenditure reports for the Clinton County Public Schools for the 1992-1993 school year. Ms. Branham did not receive a written response to these requests.

 

On June 25, 1993, Ms. Branham submitted an appeal to the Attorney General in which she raised the issue of the School System's failure to respond. As a consequence, we contacted Dr. DeSpain on June 30, 1993, to ascertain the status of her requests. In a conversation with the undersigned Assistant Attorney General, Dr. DeSpain stated that it was his impression that the School System had agreed to make the records available to Ms. Branham at the time of her requests. He indicated that there had apparently been a breakdown in communication, but that his office would again make the records available to Ms. Branham. Dr. DeSpain asked that Ms. Branham contact his office in advance to arrange for her to inspect and copy the records. Because Dr. DeSpain agreed to release the requested records, this Office declined to render a decision in Ms. Branham's appeal.

 

On July 19, 1993, Ms. Branham again submitted an appeal to the Attorney General. She explained that on July 9, 1993, she went to Superintendent DeSpain's office to obtain copies of the records. He advised her that in his opinion the

monthly expenditure reports are not public records, and that if she wished to obtain copies she would have to secure them through the courts. Ms. Branham asserts that there has been no breakdown in communication. Superintendent DeSpain simply refuses to release the records.

 

We are asked to determine whether the Clinton County Public School System violated the Open Records Law by failing to respond in writing, and within three business days, to Ms. Branham's requests, and by denying her access to the School System's monthly expenditure report. For the reasons set forth below, and assuming the facts to have been fairly and accurately represented by Ms. Branham, we conclude that the School System's actions constitute both a procedural and substantive violation of the Law.

 

KRS 61.880(1) provides, in part:

 

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.

 

Superintendent DeSpain's conflicting verbal responses to Ms. Branham's requests represent a procedural violation of the Open Records Law. He did not notify her in writing, and within three business days, of the School System's decision relative to her requests. In ultimately denying those requests, he did not cite an exception authorizing nondisclosure, or otherwise briefly explain his refusal to release the records. Moreover, Superintendent DeSpain's inconsistent statements to this Office, his subsequent statements to Ms. Branham, and his pattern of conduct generally, suggest an improper disregard for both the spirit and the letter of the Open Records Law. We urge him to review the cited provision to insure that future responses conform to that Law.

 

It is the opinion of this Office that Dr. DeSpain's refusal to release the monthly expenditure reports also constitutes a substantive violation of the Open Records Law. This Office has consistently recognized that "[a]mounts paid from public coffers are perhaps uniquely of public concern." OAG 90-30, at p. 3. As we observed in that opinion:

 

[T]he public is entitled to inspect records documenting exact amounts paid from public moneys, to include amounts paid for items, or for salaries, etc. Specific sums paid in salary from public monies to a teacher in the public schools falls within such purview, and are, in our view, subject to inspection by the public . . . . Disclosure of such payments do not constitute an unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).

 

OAG 90-30, at p. 3. We believe that the cited opinion, a copy of which is attached, is dispositive of the substantive issue raised in this open records appeal.

 

KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Law. If there is proof that the disputed records are being willfully concealed, it should be presented to the local prosecutor who may proceed to a determination of this matter. The Attorney General is not, however, authorized to render a decision on this question in an open records appeal.

 

The Clinton County Public School System should promptly arrange for Ms. Branham to inspect and copy the monthly expenditure reports for the 1992-1993 school year.

 

The School System 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/1015

 

 

Distributed to:

 

Superintendent B. C. DeSpain

Clinton County Public School System

P. O. Box 416

Albany, KY 42602

 

Ms. Connie Branham

1013 N. Cross Street

Albany, KY 42602