NOT TO BE PUBLISHED

95-ORD-25

February 22, 1995

In Re: Robert Flashman/University of Kentucky

OPEN RECORDS DECISION

This appeal originated in a request and complaint submitted by Professor Robert Flashman to the University of Kentucky. While we do not have a copy of Professor Flashman's letter to the University, which was apparently dated June 8, 1994, Mr. Donald B. Clapp, who at that time was the University's Official Records Custodian, responded to Professor Flashman in a letter dated June 13, 1994.

In his letter of appeal to the Attorney General, received July 11, 1994, Professor Flashman presented three issues. One of those issues concerned the alleged failure of the University to post regulations in or near the office of the Dean of the College of Agriculture relative to the process involved in obtaining access to and copies of public records. Professor Flashman maintains that the University is in violation of KRS 61.876.

KRS 61.876 requires each public agency, including, of course, the University to adopt rules and regulations concerning access to public records, the protection of public records and the procedures to be followed to obtain access to and copies of public records.

In 93-ORD-83 and 94-ORD-4 this office rendered decisions involving the University's obligations under KRS 61.876. At pages two and three of 94-ORD-4 we stated that the Attorney General is not empowered to enforce its decision by the imposition of penalties. Our function, in regard to appeals under the Open Records Act, is to render a written decision stating whether the agency violated the provisions of that Act. KRS 61.880(2). We have fulfilled that function relative to the University's obligations under KRS 61.876. As pointed out in the prior decisions, KRS 61.880(5)(b) creates a mechanism by which a prevailing party may enforce an Attorney General's decision from which a timely appeal has not been perfected.

This office has previously issued decisions relative to the University's duties and obligations under KRS 61.876 and if the University has not implemented those decisions the enforcement remedy is in the appropriate circuit court rather than with this office. See 95-ORD-19 involving Davy Jones and the University of Kentucky.

Another issue presented by Professor Flashman is what he describes as the University's failure to "thoroughly school" its employees in the underlying principles and mechanics of the Open Records Act.

Professor Flashman is referring to a phrase which appeared in 94-ORD-73, at page five, which needs to be considered within the context in which it was presented:

As custodian [of the records], he is directly responsible for maintaining public records as well as responding to records requests. In discharging these duties, he should make every effort to insure that University personnel are thoroughly schooled in the underlying principles, as well as the mechanics of, the Open Records Law. We urge the University and Mr. Clapp to bear these observations in mind.

As previously noted, the basic function of this office in handling appeals under the Open Records Act is to render a written decision stating whether the public agency violated the Act. While the "observation" expressed in 94-ORD-73 relative to the wisdom of public agency employees being "thoroughly schooled" in the principles and mechanics of the Open Records Act is, in our opinion, still sound advice from the standpoint of legal, business, and other considerations, there is no statutory requirement that a public agency institute any particular type of training program in regard to the Open Records Act.

If Professor Flashman desires to pursue the issue of the University's alleged continuing failure to adopt and post rules and regulations pursuant to KRS 61.876, that matter must be directed to the appropriate circuit court for consideration and enforcement. Neither that issue nor the matter of the alleged deficiencies in or the lack of a training program present subjects which this office can address in an appeal under the Open Records Act.

The third issue presented by Professor Flashman concerns the University's failure to either provide a copy of a particular document or to state that the document does not exist.

As best we can figure out, Professor Flashman requested a copy of the rules and regulations notice required by KRS 61.876 and posted in or near the "Agricultural Personnel Office." He apparently had been given copies of similar notices posted in other locations around the University. In response to this specific request the University's Official Records Custodian, on June 13, 1994, replied as follows:

See response to 1 a and b above. I wasn't in these areas on June 7, 1994, and I cannot personally attest to whether the notice was posted on that date at these locations. I have checked with these offices on this date and notices are posted.

KRS 61.880(1) sets forth the duties and obligations of a public agency regarding its receipt of a request for documents. The public agency is confronted with two basic questions which are whether the document exists or is in its possession and, if so, whether the document must be released or can be withheld under one of the statutorily recognized exceptions to public inspection.

For whatever the reason, Professor Flashman wanted a copy of a notice required by KRS 61.876 and located or posted in a specific area of the University. The University's response never indicated whether such a notice was posted in that place on that day but it implied that such a notice existed. The response did not indicate whether a copy of the specific notice in question would be made available although copies of similar notices from other locations had, apparently, been made available.

The University's response was, therefore, legally deficient and it should immediately advise Professor Flashman whether the specific notice document existed on the date it was requested and, if so, furnish him with a copy of that document. See OAG 91-101, copy enclosed.

Either Mr. Flashman or the University or both of them may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

res/873

Enclosure

Copies of this decision have been mailed to:

Professor Robert Flashman

3220 Blenheim Way

Lexington, KY 40503

Mr. George DeBin

Official Records Custodian

11 Administration Building

University of Kentucky

Lexington, KY 40506-0032