TO BE PUBLISHED

94-ORD-8

January 12, 1994

IN RE: Robert Flashman/University of Kentucky

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. Robert Flashman, Professor of Extension at the University of Kentucky, to Mr. Donald Clapp, Vice President for Administration and Official Records Custodian at the University. On September 14, 1993, Mr. Flashman requested a copy of:

[T]he contract and job description of the University administrative officer or employee who is responsible for enforcing proper recordskeeping practices within the University.

Mr. Flashman clarified his request by noting that he was not asking "for the contract and job description of the individual who is responsible for issuing University responses to requests for access to those records which have been kept of University activities." On September 17, Mr. Clapp responded to Mr. Flashman's request advising him that "[t]here is no single UK employee who is '. . . responsible for enforcing proper recordskeeping practices . . .' at the University. We expect that all faculty, administrators and other employees will keep appropriate records."

Apparently dissatisfied with this response, Mr. Flashman submitted an appeal, through the Department for Libraries and Archives, asking that the Department "exercise the provisions of KRS 171.530 to 'initiate' action with the Attorney General, in connection with the present Archives and Records law violation by the University of Kentucky." His appeal was forwarded to this Office by Mr. Richard Belding, Director of the Public Records Division of the Department of Libraries and Archives.

In his letter of appeal, Mr. Flashman objects to the University's position that "no one is responsible for admini- strative oversight over University recordskeeping . . . ." He maintains that this position violates KRS 61.870(4) and KRS 171.640 through KRS 171.680. Mr. Flashman observes:

These statutes clearly state the either the agency head, or an official delegate, is 'the' (one) individual charged with such administrative oversight. KRS 61.870(4) further identifies that the responsible individual is titled 'Official Custodian.' Therefore, I should have received as the correct response a copy of the contract and job description of Donald Clapp. However, I was not given that record, and was instead given a legally incorrect statement by the 'Official Custodian' that no 'one' is responsible for administrative oversight or enforcement.

It is Mr. Flashman's position "[t]hat there is a tangible 'actual' or 'impending' breakdown in UK records management due to the failure of UK to identify the 'Official Custodian' as 'the' individual with oversight responsibility . . . ."

Mr. Flashman asks that this Office afford him relief in two forms. First, he requests a decision holding that the University "failed to correctly identify Donald Clapp, the Official Custodian, as the individual responsible under KRS 61.870(4) with enforcing proper records 'keeping' practices within the University, such recordskeeping practices being a part of the records management program controlled by KRS 171.640/680." As a corollary of this request, he asks that we direct the University to release a copy of Mr. Clapp's contract and job description to him.

Mr. Flashman also requests that this Office issue a decision declaring that the University has violated the "Archives and Records statutes KRS 171.640 and KRS 171.680 . . . [by] . . . refus[ing] to submit to the statutory requirements that a single, identifiable individual has ultimate oversight responsibility for University recordskeeping." Elaborating on this request, he observes:

[T]o the extent that an Open Records statute is penetrated and overlapped by an Archives and Records statute, KRS 61.880(1)(4) [sic] create a cause for legal action by which citizens or the State Archivist, through the Attorney General's decision, can compel compliance of public agencies with Archives and Records statutes controlling the creation, maintenance and disposal of public records.

(Emphasis in original.) In his view, KRS 61.870(4), which defines the term "official custodian," is "an actionable subsection" which identifies the official custodian as the individual who is responsible for insuring that the University "is 'keeping' a record(s) of its activities (and then is 'maintaining' those created records)," as required by Chapter 171 "and other various Kentucky Revised Statutes."

Pursuant to KRS 61.880(2), the Attorney General is required to review a public agency's denial of a request to inspect a public record, if a complaining party wishes him to do so, and to issue a written decision stating whether the agency violated the Open Records Act. Although generally an appeal to the Attorney General is precipitated by an agency's denial of a records request, an appeal may come to him in a different posture. For example, a public agency may refuse to comply with the procedural requirements of the Act or otherwise subvert the intent of the Act short of denial of inspection. KRS 61.880(4). In these instances, the Attorney General is also empowered to issue a decision which, if not appealed to the circuit court within thirty days of issuance, has the force and effect of law. There are, however, limitations on the Attorney General's authority relative to the Open Records Act. More importantly, there are limitations on the scope of the Open Records Act itself.

This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management. OAG 91-220; 92-ORD-1274; 93-ORD-10; 93-ORD-23; 93-ORD-51; 93-ORD-55; 93-ORD-71; 93-ORD-75; 93-ORD-95. Our decisions are, in general, limited to two questions: Whether the public agency has in its possession the document requested, and if it does, whether the document is subject to public inspection. Mr. Flashman requested a copy of "the contract and job description of the University administrative officer or employee who is responsible for enforcing proper recordskeeping practices within the University." Mr. Clapp responded that there is no single employee at the University of Kentucky who is exclusively charged with this responsibility. Accordingly, he did not provide Mr. Flashman with any documents which satisfy his request. This response was sufficient and proper under the Open Records Act. If Mr. Flashman wishes to inspect the contract and job description of the official custodian of records for the University of Kentucky, he should resubmit his request using clear and unambiguous language.

KRS 61.870(3) defines the term "Official Custodian" as "the chief administrative officer or any other officer or employer of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether such records are in his actual personal custody and control." (Emphasis added.) The Official Custodian's role under the Open Records Act is not coextensive with the role of the "head of each state and local agency," under KRS 171.640, to make and preserve records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency. In his role as Official Custodian under the Open Records Act, he cannot direct the creation of records, but must insure their maintenance, care and keeping. In addition, he must process requests for public records, pursuant to KRS 61.872 and KRS 61.880(2). Should he fail in these duties, this Office will declare the agency to be in violation of the Open Records Act. In our role as dispute mediator under the Act, we cannot, and will not, otherwise be drawn into the fray.

Mr. Flashman may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(2) and KRS 61.882. Although the Attorney General should be notified of any action filed against the University of Kentucky in circuit court, he should not be named in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

par/1468

Distributed to:

Hon. Donald Clapp

Vice President for Administration

and Official Records Custodian

104 Administration Building

University of Kentucky

Lexington, KY 40506-0032

Mr. Robert Flashman

Professor of Extension

3220 Blenheim Way

Lexington, KY 40503

Mr. Richard N. Belding, Director

Public Records Division

Kentucky Department of Libraries & Archives

300 Coffee Tree Road

P. O. Box 537

Frankfort, KY 40602-0537