NOT TO BE PUBLISHED
96-ORD-47
February 27, 1996
In re: Lynn Olympia/University of Louisville
OPEN RECORDS DECISION
This appeal originated in a request to inspect and copy public records submitted by Lynn Olympia to the University of Louisville in late November, 1995. [1] Ms. Olympia, a former student at the University of Louisville who participated in the University's oral history program, requested access to various records relating to her oral history project. Those records are identified as the transcripts and edited transcripts of the interviews she conducted in 1984 and 1985 and the certificates of gift signed by Ms. Olympia and the individuals she interviewed.
On December 7, 1995, William J. Morison, Director of the University Archives and Records Center and custodian of records for purposes of the Open Records Act, responded to Ms. Olympia's request. He advised:
It is my understanding that under a grant from the Kentucky Oral History Commission the Beargrass-St. Matthews Historical Society recently made arrangements with U of L Personnel's Temporary Services to prepare transcripts of those tapes. I understand duplicate sets of the transcripts eventually will be reserved both at the Historical Society and at the University. When the transcripts have been produced and transmitted to the University Archives, you may certainly inspect them here.
With respect to the certificates of gift, you may inspect them here in the University Archives. Please contact me to arrange a convenient time. Or, upon receipt of your check for $15.00 (60 pages x. $0.25 per page) made out to the University of Louisville, I will mail photocopies to you.
In her letter of appeal to this office, Ms. Olympia raises several questions relative to the propriety of the University's decision to transcribe the tapes, including questions of copyright infringement, which are not cognizable under the Open Records Act. Our review is limited to the question of whether the University of Louisville violated provisions of the Act in responding to her request. For the reasons set forth below, we conclude that the University's response was largely consistent with the Open Records Act.
Ms. Olympia requested access to “transcripts and edited transcripts of [her] oral history taped interviews `History of St. Matthews,' conducted in 1984-5 for the Kentucky Oral History Commission . . . .” No such records currently exist. In a letter to Ms. Olympia dated December 7, 1995, Mary Margaret Bell, Associate Archivist and Co-Director of the Oral History Center, elaborated on Mr. Morison's response:
The University Archives at the University of Louisville does not yet have copies of the transcripts, in hard copy or electronic form, being produced by the current Kentucky Oral History Commission transcription grant for the St. Matthews-Beargrass Historical Society. According to the provisions of the grant, the Archives must receive these copies by the end of sixty days following the closure of the grant period. The period for this particular grant ends June 30, 1996. Thus, we may receive the copies no later than August 30, 1996.
Ms. Bell further advised that she would notify Ms. Olympia if the transcripts are available for inspection before August 30.
This office has long recognized that a public agency cannot furnish access to records which it does not have or which do not exist. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, the Act regulates access to existing public records. KRS 61.8715. Our decisions in an open records dispute are therefore generally 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. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 94-ORD-65. The University of Louisville properly advised Ms. Olympia that it does not yet have copies of the transcripts she requested. In the absence of evidence to the contrary, we must assume the truthfulness of the University's assertions.
With respect to Ms. Olympia's request for copies of the certificates of gift which she and the persons she interviewed signed, Mr. Morison properly advised her that she could inspect the records in the University Archives, or alternatively, receive copies through the mail upon payment of a $15.00 copying charge for 60 pages. [2] KRS 61.872(3)(a) and (b) provide:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The University's response to this portion of Ms. Olympia's request was entirely consistent with this provision. [3]
It should, however, be noted that the University failed to comply with the procedural requirements of the Open Records Act, codified at KRS 61.880(1). Although the University maintains that it did not receive Ms. Olympia's request, dated November 20, until November 29, it offers no explanation for its failure to respond within three business days of actual receipt. Approximately six business days elapsed between the day that the University asserts it received her request, and the day it responded. Coincidentally, or otherwise, the University's response followed closely upon the heels of this office's issuance of notification that an appeal had been filed in this matter. We urge the University of Louisville to review the cited provision to insure that future responses conform to the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/1544
Distributed to:
William J. Morison, Ph.D.
Director
University Archives and Records Center
University of Louisville
Louisville KY 40292
Lynn Olympia
6424 Regal Road
Louisville KY 40222
[1] Ms. Olympia's requests are dated November 20, 1995. The University maintains that they were not received until November 29, 1995. There is no known explanation for this discrepancy.
[2] The University apparently charges $0.25 per page for reproducing public records. Although Ms. Olympia does not raise this issue in her appeal, the Attorney General has recognized that, in general, $0.10 per page is a reasonable copying charge under the Open Records Act. KRS 61.874(3). In OAG 90-50, this office held that a $0.25 copying charge was excessive when the fee was not based on the agency's actual costs, exclusive of personnel costs. For an extensive discussion of reasonable copying charges, see 94-ORD-149.
[3] See also, KRS 61.874(1) relative to public agency's right to require a written request and advance payment of the prescribed copying fee.