NOT TO BE PUBLISHED

96-ORD-74

April 3, 1996

In re: Robert K. Landrum/Kentucky State University

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from Kentucky State University's actions to Mr. Robert K. Landrum's open records requests to review certain of the University's records.

In his letter of appeal to this office, Mr. Landrum states the University has not complied with a prior Open Records Decision of this office, involving him and the University, issued October 16, 1995. He further states that he has made additional open records requests since that date but has received no documents or inspection invitations. Along with his letter of appeal, Mr. Landrum enclosed copies of fifteen open records requests, dating from November 28, 1995 to February 10, 1995.

Along with his letter of appeal, Mr. Landrum enclosed two responses from Mr. Harold S. Greene, Jr., General Counsel, Kentucky State University. By letter dated January 12, 1996, Mr. Greene advised Mr. Landrum that if he had open record requests to which there have been no responses, to please inform him so that the University could expeditiously respond to them. By letter to Mr. Landrum, dated February 8, 1996, Mr. Greene states that despite on-going litigation between Mr. Landrum and the University, his open records request would not be affected unless there is a protective order. He further advises Mr. Landrum that he should receive a substantial amount of information in response to his Open Records Requests within the next few days. In his letter of appeal, dated February 25, 1996, he states he has not received any amount of information from the University.

On March 6, 1996, this office notified the University that Mr. Landrum had initiated an open records appeal in this matter. On that date, this office sent a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Landrum's letter of appeal. The Notification states in part: “Pursuant to 40 KAR 1:030, Section 2, you may respond to this appeal, but the Attorney General shall not agree to withhold action on the appeal beyond the time limit imposed by KRS 61.880(2).”

The University did not provide this office with a response to Mr. Landrum's letter of appeal or otherwise refute the facts therein. We therefore assume that the letter of appeal sets forth an accurate statement of the facts.

For the reasons which follow, it is the conclusion of this office that Kentucky State University's actions in regard to Mr. Landrum's open records requests were procedurally inconsistent with and in violation of the Open Records Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

To the extent that Kentucky State University failed to respond in writing, and within three business days, to each of Mr. Landrum's requests, its actions were procedurally deficient and in violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125. We urge the University to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

Accordingly, the University is directed to promptly respond to Mr. Landrum's requests in writing and promptly release the records or if the request is denied, in whole or in part, the response should 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).

The responses of the University, dated January 12, 1996 and February 8, 1996, appear to be an effort to comply with Mr. Landrum's many requests. In OAG 92-117, this office, in addressing what is a “reasonable time” for inspection, stated:

We believe that a determination of what is a “reasonable time” for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of retrieving those documents. Public agencies must work, in a spirit of cooperation, with the individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.

The parties should communicate with each other to make arrangements for the timely production of records which are open to inspection.

Regarding Mr. Landrum's statement that the University did not comply with the Open Records Decision of this office issued on October 16, 1995, it should be noted that this Office is not empowered to impose penalties or otherwise enforce its decisions. KRS 61.880(5)(b) creates a mechanism by which a prevailing party may enforce an Attorney General's decision after the thirty day time limit has expired. That statute provides:

If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.

If a public agency fails to file an appeal of a decision within thirty days, but refuses to comply with the terms of that decision, a prevailing party need only petition the circuit court for enforcement of the decision. These proceedings are not equivalent to the de novo appeal provided for at KRS 61.882. Since the unappealed decision has the force and effect of law, the issues raised are not relitigated. Instead, the court should enforce the decision as law. Mr. Landrum may wish to consider this alternative in view of this Office's limited role in enforcing its decisions.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/238

Distributed to:

Robert Landrum

317 Chippendale Circle

Lexington, Kentucky 40517

Harold S. Greene, Jr.

General Counsel

Kentucky State University

400 East Main Street

Frankfort, Kentucky 40601