NOT PUBLISHED 

94-ORD-34

March 10, 1994

IN RE: Donald W. Thompson/Pulaski County School System

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Mr. Donald W. Thompson, Vice President of the Pulaski County Education Association, to the Pulaski County School System on August 31, 1993. Those records are identified as:

On behalf of the School System, Finance Director Ron Moubray apparently denied his request. Mr. Thompson indicates that Mr. Moubray provided him with "a copy of the Commonwealth Journal of the same date showing the annual statement of cash receipts and disbursements." This did not, in Mr. Thompson's view, satisfy his request. In response to a followup request, dated November 3, 1993, Mr. Moubray apparently advised "that he would not copy the information because it was to [sic] voluminous." Mr. Thompson did not attach a copy of either of Mr. Moubray's responses.

Accordingly, on January 5, 1994, this Office contacted Mr. Thompson by letter, advising him that to facilitate our review of the School System's actions relative to his request, we would need a copy of Mr. Moubray's written response. Citing KRS 61.880(2), we explained that we would be forced to process his appeal on the basis of documents provided if he were unable to produce the response. On February 12, 1994, Mr. Thompson notified this Office the he had been "unable to locate Mr. Moubray's written response denying [his] request . . .," and asked that we proceed to an adjudication of his appeal.

We are asked to determine if the Pulaski County School System violated the Open Records Act in responding to Mr. Thompson's requests. For the reasons set forth below, we conclude that there is insufficient evidence to support a finding that the School System violated the Act.

KRS 61.880(2) provides, in part:

(Emphasis added.) Thus, to perfect an appeal under the Open Records Act, a complaining party must provide the Attorney General with a copy of the written request and the written denial, if available. While this Office recognizes that the rules of procedure governing an open records appeal should be relaxed to permit the greatest possible access to this forum, and that a rule of substantial compliance should generally be applied, we are unable to determine, on the basis of the documents presented, that the Pulaski County School System violated the Open Records Act.

KRS 61.872(6) provides:

This Office has traditionally held public agencies to a high standard of proof relative to their invocation of this provision. See, e.g. OAG 84-278 (holding that the denial of a request for approximately 10,000 documents was improper since the requests were not repetitions and the requestor was willing to inspect a few at a time). Where, however, an agency establishes "by clear and convincing evidence" that the request places an unreasonable burden on it, we have sustained agency

action. Thus, in OAG 89-88 we upheld the Department of Insurance's denial of KRS 61.872(6) of a records request, noting that the Department "explained the volume involved . . . and the difficulty associated with separating confidential from non-confidential material."

Because Mr. Thompson cannot produce the Pulaski County School System's response to his request, we are unable to determine if the School System satisfied its burden of proof. It may well be that Mr. Moubray's response contained an explanation regarding the School System's claim of undue burden which was supported by the facts recited. We are therefore unwilling to declare the School System's actions a violation of the Open Records Act.

Nothing in the statutes precludes Mr. Thompson from submitting a renewed request to the Pulaski County School System. If that request is again denied, he may again appeal to this Office. We urge him, however, to carefully review KRS 61.880(2) in advance of filing that appeal to insure that he submits adequate documentation to this Office.

Mr. Thompson 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 in circuit court, but 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

par/1803

Distributed to:

Mr. Ron Moubray

Pulaski County Board of Education

P. O. Box P

Somerset, Kentucky 42502

Mr. Donald W. Thompson

Vice President

Pulaski County Education Association

80 Sunset Drive

Bronston, Kentucky 42518