NOT TO BE PUBLISHED
96-ORD-91
April 19, 1996
In re: John Sammons/University of Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the University of Kentucky's denial of John Sammons's October 16, 1995, request for records in its custody. Those records are identified as:
[The r]ecords that have been issued by the Department for Libraries and Archives that are standards, rules, regulations, policies or procedures for records management by the University of Kentucky as a Kentucky public agency, or official explanations, descriptions, and clarifications thereof, that contain:
- the KDLA position on the intended outcome of effective University controls over the creation of records, including the KDLA official position on the kinds of entities, bodies or officers subject to the KDLA standards, rules, regulations, policies or procedures on creation of KRS 171.640-records, or
- the KDLA position on the intended outcome of effective University controls for whether records will be available at the right time or place (due to the records having been effectively controlled to be created), or
- the KDLA position on the intended outcome of effective University controls on the informational content of KRS 171.640-records created by the University.
In his request, Mr. Sammons emphasized that he was not requesting the University's Records Retention and Disposal Schedule since the schedule:
is the document referred to by KRS 171.420 [which] only controls the disposition of records that have come to be created, and it does not constitute a KRS 171.450(2)- or 171.520- or KRS 171.640- or KRS 171.680- standard, rule, regulation, policy or procedure controlling implementation of the requirement to create, or the information content of KRS 171.640 records.
Mr. Sammons is a professor at Prestonsburg Community College, and his request was made under the Open Records Act.
On October 24, 1995, George J. DeBin, official records custodian for the University of Kentucky, responded to Mr. Sammons's request. Noting that Mr. Sammons had clearly stated that he did not want to receive a copy of the Records Retention and Disposal Schedule, Mr. DeBin advised:
The only other record which may be responsive to your request is a “model schedule” received by the University of Kentucky from the State Archives and Records Commission.
In July, 1994, the State Archives and Records Commission transmitted to President Charles Wethington, the “initial components” of the State University Model Records Retention Schedule as approved by the State Archives and Records Commission. The University of Kentucky is currently reviewing the Model Schedule, and has submitted suggested changes to the Model Schedule, but it has not yet been completely approved for use at the University. As I am sure you can appreciate, each agency affected by the Archives and Records Law will have to adapt the schedule to fit its particular circumstances. If this model is the record you are seeking, we will be glad to provide you with a copy.
You requested the records that contain the Kentucky Department of Libraries and Archives' positions on “the intended outcome” of the above issues. I have enclosed a copy of a booklet issued by the Public Records Division of the Kentucky Department of Libraries and Archives in October 1994 which may be responsive to your request. I have also enclosed a copy of the Administrative Regulations issued by the Kentucky Department of Libraries and Archives, and a letter dated July 14, 1994 which states some information about records management. Other than the above information, as Official Records Custodian for the University, I don't know what the Commission's “intended outcomes” are.
In closing, Mr. DeBin referred Mr. Sammons to the Department for additional information or records.
In subsequent correspondence with James Nelson, Commissioner of the Department for Libraries and Archives, Mr. Sammons learned of additional documents which might be responsive to his request. In response to a similar request directed to the Department, Mr. Nelson provided Mr. Sammons with the 1985 KDLA publication entitled “State Government Records Management Procedures for the Commonwealth of Kentucky,” and an October 23, 1993, letter from Richard Belding, Director of Public Records for the Department for Libraries and Archives, to Davy Jones, a professor at the University. It is the failure of the University to produce these records, along with its failure to definitively state that it has fully complied with his request by producing all responsive records, despite the precision with which his request is drawn, that Mr. Sammons challenges in this appeal. [1]
The question presented in this open records appeal is whether the University of Kentucky violated provisions of the Open Records Act in its October 24, 1995, response to Mr. Sammons's request. For the reasons set forth below, and upon the authorities cited, we conclude that the University did not violate the Act. We decline Mr. Sammons's invitation to render a decision which “will set in place the final part of the structure linking the open records law to the agency records management activities established in KRS 171.680(2)(a) . . . [by declaring that t]he records management activities of public agencies must include effective controls over the creation, maintenance and use of public records.” Our review is confined to the well-worn issue articulated above.
Mr. Sammons is wrong in his belief that the issue presented is one of first impression. The issue presented in this appeal is by no means novel. This office has long recognized that:
The purpose and intent of the Open Records Act is to permit the “free and open examination of public records.” KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
94-ORD-12, p. 3.
Mr. Sammons identified the records he wishes to inspect using “the same descriptors of records as the legislature used in the records management statutes themselves.” This, in his view, precluded the University from asserting “less than reasonable certainty as to the identity of records that are responsive [or] less than reasonable certainty as to records that are not responsive.” The University responded by releasing a number of records it believed satisified Mr. Sammons's request, and offering to make others available upon request, if they too satisfied his request. Apparently, two records which Mr. Sammons believed to be responsive to his request, a 1985 KDLA publication and a 1993 letter from Richard Belding to Davy Jones, were not produced. If this omission was in fact a willful one, Mr. Sammons's only recourse lies in the courts. [2] If, on the other hand, and as we suspect, the omission was unintentional, Mr. Sammons can ask no more than that the University now produce those two records.
With all due respect to Mr. Sammons, we find that much of this dispute centers on the fact that the request, as well as the appeal are ambiguous and “far from . . . model[s] of clarity.” 94-ORD-12, p. 3. Mr. Sammons should identify with clarity the records requested so that the University can then appropriately respond. Given the history of these appeals, we must reiterate that our role in resolving these disputes is a limited one, and is confined to the question articulated above: Did the agency violate the provisions of KRS 61.870 to 61.884? KRS 61.880(2)(a). As noted, our decisions are premised on the assumption that the parties are acting in good faith, and the perhaps sanguine hope that they will work in the spirit of cooperation in resolving their disputes. Failing this, the parties' only recourse rests in the courts.
In summary, we find that the University of Kentucky did not violate the provisions of KRS 61.870 to 61.884 in responding to Mr. Sammons's open records request. The University honored the request to the extent that its translation of it permitted. If additional documents exist which satisfy the request, Mr. Sammons may resubmit it to the University, which will, in turn, be obligated to produce those records.
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 L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
aps/118
Distributed to:
George J. DeBin
Custodian of Records
University of Kentucky
111 Administration Building
Lexington KY 40506-0032
John Sammons
Prestonsburg Community College
One Bert T. Combs Drive
Prestonsburg KY 41653
[1] As we have come to expect in an appeal from the University of Kentucky's denial of an open records request, Mr. Sammons raises numerous arguments in support of his position, and identifies several peripheral issues. While, as in the past, we do not mean to casually dismiss these arguments, or ignore these issues, we believe that they are largely superfluous to the Open Records Act.
[2] KRS 61.991(2)(a) establishes penalties for officials of public agencies who willfully conceal or destroy records with intent to violate the Open Records Law. That offense is punishable as a Class A misdemeanor, and must be prosecuted in the same manner as other misdemeanors. As we noted in 95-ORD-19, at page 2, “We trust that the prosecutorial authorities are competent to make this determination if sufficient evidence exists.”