NOT TO BE PUBLISHED 

93-ORD-93

August 5, 1993

IN RE: Bob Schmitt/Jefferson County Board of Education

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Jefferson County Board of Education, through its Chairperson, Ms. Carol Ann Haddad, in responding to Mr. Bob Schmitt's July 19, 1993, request for copies of the completed input forms submitted by persons involved in the selection and recruitment of the new superintendent of the Jefferson County Public Schools. Mr. Schmitt, who is a member of the Board of Education, requested that the copies be delivered to his office by noon on July 26. His request was made under the Open Records Act.

On July 19, Ms. Haddad responded in writing to Mr. Schmitt's request, advising him that she would deliver the forms to his office on Thursday morning, but would wait while he reviewed them. Mr. Schmitt indicates that Ms. Haddad verbally informed him that the input forms "were confidential information for her only," and that copies would not be made available to him.

In his letter of appeal to this Office, Mr. Schmitt maintains that the input forms should be made available to him and the other members of the Jefferson County Board of Education. He urges this Office to issue a decision consistent with this view.

We are asked to determine if the Jefferson County Board of Education, through Ms. Haddad, violated the Open Records Act by refusing to make copies of the requested records available to Mr. Schmitt. For the reasons set forth below, and

assuming the facts to have been fairly and accurately presented by Mr. Schmitt, we find that Ms. Haddad's actions violate the Act.

Kentucky's Open Records Act provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided" in the Act. "Public records" consist of "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). This all encompassing definition clearly includes the input forms which were returned to Ms. Haddad as Chairperson of the Jefferson County Board of Education. Contrary to Ms. Haddad's apparent belief, and the promise of confidentiality contained on the input forms, the forms are subject to public scrutiny, and scrutiny by other members of the Board, if they are also nonexempt "open records."

KRS 61.880(1) provides, in part:

Upon receipt of an application to inspect public records, a public agency, through its official custodian of records, is charged with the duty of notifying the applicant in writing of its decision either to comply with the request or to deny the request. On those occasions when the agency denies access to the records, the written notification must include a statement of the exception authorizing nondisclosure and a brief explanation of how the exception applies to the records withheld.

If Ms. Haddad is not the official custodian of records for the Jefferson County Board of Education, as defined at KRS 61.870(3), she is obligated to so notify the applicant and furnish him or her with the name and location of the custodian, if such facts are known to her. KRS 61.872(4). If she is the official custodian, her response must be treated as final agency action. KRS 61.880(1). Inasmuch as Mr. Schmitt's request was clearly identified as an open records request, and Ms. Haddad responded on official Jefferson County Public Schools letterhead, identifying herself as Chairman of the Board of Education, we must treat her response as final Board action.

In her July 19 response, Ms. Haddad advised Mr. Schmitt that he would be permitted to review the input forms. This response satisfied the notice requirement of KRS 61.880(1). Her statements to Mr. Schmitt, however, were somewhat at odds with this position. She expressed the view that the records were "confidential" and for her use only. Moreover, she apparently indicated that Mr. Schmitt would not be provided with copies of the records. These conflicting statements constitute a violation of the Open Records Act.

KRS 61.872(3) provides:

(Emphasis added.) Additionally, KRS 61.874(1) guarantees the applicant "the right to make abstracts of all written public records and memoranda thereof, and to obtain copies of all written public records." (Emphasis added.) While we do not believe that Ms. Haddad or the Board were required to send the records to Mr. Schmitt's office, since he resides in the county where the records are located, we believe that if the records are nonexempt "open records" Mr. Schmitt must be permitted to both inspect and obtain copies of them.

We do not mean to suggest that there are no exceptions to the Open Records Act authorizing nondisclosure of these records. However, Ms. Haddad did not cite any of the exceptions codified at KRS 61.878(1)(a) through (k) in her response to Mr. Schmitt's request. Although she verbally expressed the view that the records are "confidential" and for her use only, she nevertheless indicated that he could inspect them. Inasmuch as KRS 61.878(5) provides that none of the exceptions to the Open Records Act should be construed to "prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function," we need not resolve this issue. Mr. Schmitt, as a member of the Board, is entitled to review the input forms "in the performance of a legitimate government function," to wit, the selection of a school superintendent. KRS 160.290.

Ms. Haddad should promptly arrange for Mr. Schmitt to inspect and obtain copies of the input forms submitted by persons involved in the selection of the new superintendent of the Jefferson County Public Schools.

The Jefferson County Board of Education 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/1027

Distributed to:

Ms. Carol Ann Haddad, Chairman

Jefferson County Board of Education

VanHoose Education Center

P. O. Box 34070

Louisville, KY 40232-4020

Mr. Robert J. Schmitt

Emler Distributing Co.

P. O. Box 1867

Louisville, KY 40201