TO BE PUBLISHED
94-ORD-15
February 7, 1994
IN RE: Robert Flashman/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in three requests for public records submitted by Mr. Robert Flashman, Professor and State Specialist in Family Resource Management at the University of Kentucky, to the University's Official Records Custodian, Mr. Donald B. Clapp, on September 14, 1993. Mr. Flashman requested copies of the minutes of two meetings of the University College of Agriculture in the fall of 1992, and a meeting of the Agriculture Faculty Council in the spring of 1993. Mr. Flashman narrowed his requests to the following:
[T]he record created under the mandate of KRS 61.835, that is, the record of minutes of the meeting that is required to be created by public agencies subject to the Open Meetings law. I am not requesting any notes or other record concerning the meeting that were created purely upon the intramural discretion of some University employee or group. Nor am I requesting any record of minutes created pursuant to an intramural University or College rule requiring the creating of a record of minutes. Nor am I requesting any notes or other record concerning the meeting that were created pursuant to the mandate of some statute other than KRS 61.835. Nor am I requesting any records that 'may be on the subject of this meeting.' Nor am I requesting record [sic] that you are not sure are responsive, and that you only 'believe are responsive.' Rather, I have described the desired record quite precisely so that there cannot be any confusion of the desired record with any other record, and so that there can be only one record (if it exists) that satisfies this request. I have cited a specific records-creation statute that applies to certain bodies of public officials ('public agencies') and I request the record specifically called for by that statute so as to comply with that statute if that statute applies to meetings of the College of Agriculture faculty. When I cite a specific records-creation statute, your office, as Official Records Custodian charged with overseeing the University recordskeeping practices, cannot claim that it is unsure of exactly which statutorily required record I have requested.
In three separate memoranda dated September 14, 1993, Mr. Clapp responded to Mr. Flashman's request. Mr. Clapp released copies of the available minutes, advising him:
A copy of the minutes of the referenced meeting is attached herewith. I should point out that as Records Custodian of the University, it is not my role to certify under what authority - statutory or otherwise - such records were created.
Dissatisfied with this response, Mr. Flashman initiated this appeal with the Attorney General.
In his letter of appeal, Mr. Flashman identifies three separate violations of the Open Records law. He argues that the custodian's failure "to state whether the described record exists, or whether the provided record is the record that [he] described that [he] wanted," constitutes a subversion of the law. Mr. Flashman explains:
The Open Records law refers to 'the record' described by the requester, which in this case is 'the record' called for by KRS 61.835. The Open Records law then states that the agency will determine whether or not to provide me with 'the record.' The Official Custodian has violated that provision of the law by failing to state whether 'the record' exists. It has long been established by series [sic] of Attorney General decisions over the years that the public agency must determine whether the requested record exists, and state whether it exists.
Citing OAG 91-101, he maintains that "[t]his is not the first time that the University of Kentucky Official Custodian has violated this specific requirement of the Open Records law."
Mr. Flashman next asserts that Mr. Clapp subverted the Open Records Law by failing to state "that the records called for under the mandate of KRS 61.835 do not exist." Continuing, he observes:
If they do exist, his response does not state that the record called for under the mandate of KRS 61.835 is the provided record. Therefore, if the record provided is actually the record called for by KRS 61.835, then the Official Custodian has functionally denied to me the record by refusing to identify the record. If it is not the record called for by KRS 61.835, but that record exists elsewhere within the University, then the record is being kept out of my reach without my receiving an explicit denial of access.
It is Mr. Flashman's position that because the University failed to state whether the records provided are the records requested, to wit the minutes required to be kept under the mandate of KRS 61.835, he cannot be sure that they reflect each decision made by the College of Agriculture and Agriculture Faculty Council. He asserts that "[t]he UK Official Custodian has devised a fiendish mechanism to 'deny functional access' of a citizen to a record even if citizen [sic] has actual [sic] been given the record."
In closing, Mr. Flashman objects to the Official Custodian's statement that "he is not responsible for knowing whether a given record is the record that the agency was legally obligated to create under a statutory mandate." He argues that this statement constitutes a violation of the records management provisions of KRS 171.640, et seq. In Mr. Flashman's view:
[I]t is the fundamental core of the Official Custodian's responsibilities to be exactly aware of the identity and file location within the University records management program for each and every University record that is statutorily required to be created, cared for and maintained. If the Official Custodian were not so aware then it would be impossible for him to perform his statutory duties described in KRS 61.870(4)/171.640.
Mr. Flashman urges this Office to issue a decision consistent with these views.
We are asked to declare that the University of Kentucky violated the Open Records Act by failing to specifically identify the records released to Mr. Flashman as the records created under the mandate of KRS 61.835. For the reasons set forth below, we conclude that the University's response was sufficient and proper under the Act.
KRS 61.872(2) delineates, in part, the duties of the official custodian in processing a request for public records under the Open Records Act. That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. . . .
The official custodian is further charged, pursuant to KRS 61.880(1), with the duty of issuing a written response within three business days, advising the requester whether the public agency intends to comply with his or her request. KRS 61.880(1). Although KRS 61.880(1) imposes specific duties on the custodian relative to the elements of a properly drafted denial, [1] it does not impose any duties on the custodian relative to a written release of requested records. Nor do we believe any such duties are implicit in the statute. The custodian need only advise the requester that his or her request will be honored, and either append the records or notify the requester that they are available for immediate inspection per KRS 61.872(3)(a) or (b).
Mr. Clapp released the minutes of the meetings conducted by the groups identified in Mr. Flashman's request on the dates identified in those requests. Accordingly, he complied with both the spirit and the letter of the Open Records Act. We are not persuaded that his failure to state "that the described record exists, or . . . [that] the provided record is the record that [Mr. Flashman] described . . ." constitutes a subversion or violation of the Act.
OAG 91-101, cited by Mr. Flashman in support of his position, is clearly distinguishable. In that opinion, a request was made for "the minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The custodian of records denied the request, advising the requestor as follows:
If minutes exist as described above, [the request] would be denied on the grounds such contain information which could be described as '[p]reliminary drafts, notes, . . . other than correspondence which is intended to give notice of final action of a public agency; and '[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended' (KRS 61.878(g)(h)) [sic].
Relying on OAG 86-38, p. 3, this Office held that "[i]f the documents exist and inspection is denied, [the custodian] should list each document which [he or she] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspect." Stated alternatively, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4.
Mr. Flashman's request was honored by the University of Kentucky. Inspection was not denied. Although in his letter of appeal he states that he "would welcome a decision that the College of Agriculture and Agriculture Faculty Council are public agencies under KRS 61.805 . . . ," he indicates that he has structured his appeal "so as to make it unnecessary for [this Office] to reach this issue." Nevertheless, it appears to us that this is precisely what he seeks: An admission by the University that the College of Agriculture and Agriculture Faculty Council are public agencies for purposes of the Open Meetings Act, or a declaration by this Office that this is the case. Simply stated, an open records appeal is not the appropriate forum for resolution of this issue.
KRS 61.846 requires a person seeking enforcement of the Open Meetings Act to first submit a written complaint to the presiding officer of the public agency suspected of violating the Act. If the alleged violation consists of the entity's having denied that it is subject to the Act, the complaint must state these circumstances, and further demand that the entity remedy the violation by acknowledging that it is a public agency.
The entity is then required to respond in writing within three business days after the receipt of the complaint, and notify the complainant of its decision. The entity must acknowledge that it is a public agency, or deny the complaint and demonstrate that it is not a public agency per KRS 61.805(2). In the latter case, the complainant may seek review of the entity's action by the Attorney General under KRS 61.846(2). It is only through this mechanism that Mr. Flashman can secure a legally binding decision that the College of Agriculture and Agriculture Faculty Council are public agencies which are subject to the Open Meetings Act.
Mr. Flashman received the records which satisfied his request. We assume a modicum of good faith from both parties to an open records appeal: From the requester in formulating his request, and from the official custodian in providing the records which satisfy the request. We concur with Mr. Clapp in his view that the Open Records Act does not require the custodian to state that the minutes of the meeting which were released to Mr. Flashman were created under the mandate of KRS 61.835.
With respect to Mr. Flashman's argument that the official custodian has disregarded duties purportedly imposed on him by operation of Chapter 171 of the Kentucky Revised Statutes, we refer him to 94-ORD-8, in which this Office soundly rejected a similar claim.
Mr. Flashman may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action filed against the University of Kentucky in circuit court, he should not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
jgh/1378
Distributed to:
Hon. Donald Clapp
Vice President for Administration
and Official Records Custodian
104 Administration Building
Lexington, KY 40506-0032
Mr. Robert Flashman
Professor of Extension
3220 Blenheim Way
Lexington, KY 40503
[1]"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." KRS 61.880(1).