NOT TO BE PUBLISHED

96-ORD-131

June 11, 1996

In re: Linda Um Bayemake/Kentucky State University

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Linda Um Bayemake to Karen McDaniel, the Director of Library Services for Kentucky State University, on April 30, 1996. Ms. Um Bayemake requested to review and copy her personnel file, which was in the possession of Ms. McDaniel. Ms. Um Bayemake did not receive a written response to her request to inspect the documents in her file; however, she was orally advised that she could inspect and copy her file on May 6, 1996. Ms. Um Bayemake was unable to keep her May 6, 1996, appointment and a subsequent appointment was made for May 24, 1996.

On May 28, 1996, this office received a memorandum from Mr. Harold Green, Jr., General Counsel for Kentucky State University. He stated that Ms. Um Bayemake reviewed and copied her file on May 24, 1996. He further indicated that upon reviewing her personnel file, Ms. Um Bayemake requested copies of her peer evaluations, which were not in the file.

We are asked to determine if Kentucky State University violated the provisions of the Open Records Act by failing to respond to Ms. Um Bayemake's request to inspect her file. For the reasons set forth below, we conclude that although Kentucky State University's response was procedurally deficient, the University ultimately complied with the Act by permitting Ms. Um Bayemake to inspect and copy her personnel file.

We begin by noting that Kentucky State University's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) 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.

Although a meeting was scheduled for Ms. Um Bayemake to review and copy her file, Kentucky State University failed to respond to her request in writing. As we have so often noted, the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request. See, e.g. 93-ORD-125. This appeal underscores the need for a written request and a written agency response. It is upon this written record that the Attorney General relies in adjudicating an open records dispute. We urge the University to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

Turning to the substantive issue in this appeal, we conclude that Kentucky State University fully complied with the Kentucky Open Records Act by allowing Ms. Um Bayemake to review and copy the records contained in her personnel file. KRS 61.878(3) provides:

No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The record shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.

As a public agency employee, Ms. Um Bayemake is clearly entitled to inspect and copy all records which relate to her.

The final issue in this appeal relates to the peer evaluations requested by Ms. Um Bayemake while she was reviewing her file. It is unclear whether this request was included in her original open records request. Inasmuch as it appears that Kentucky State University has not had an opportunity to formally respond to this request, we will not address the issue in this appeal. This matter is not ripe for review because Ms. Um Bayemake has apparently not submitted a formal written request, and that request has not been formally denied.

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

tg/572

Distributed to:

Linda Um Bayemake

113 West Third Street

Frankfort, Kentucky 40601

Harold Green

General Counsel

Kentucky State University

400 East Main Street

Frankfort, Kentucky 40601