NOT TO BE PUBLISHED
96-ORD-132
June 11, 1996
In re: Mary Rowe/Magoffin County High School Site-Based Decision Making Council
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Magoffin County High School's response to Mary Rowe's April 29, 1996, open records request. Ms. Rowe requested copies of Magoffin County High School Site-Based Decision Making Council policies, discipline policies, and policies “where school montiers [sic] hunt down parents.” On April 30, 1996, Kathy Patrick, a secretary at the high school, responded to Ms. Rowe's request, advising her as follows:
The information that you requested from the Magoffin County High School Site-Based Decision Making Council is not available at the present time. As soon as it is made available to me, I will be most gladly [sic] to forward it on to you when it comes available. It will be probably the first part of next week. I'm enclosing several copies that may help you until the other information comes available. These copies are district wide - Discipline and Classroom Management - this doesn't mean that the Magoffin County High School Site-Based Decision Making Council has adopted the same policy [sic].
P.S. I will give this my full attention, to see that you will receive the information that you have requested. Thank you for your cooperation.
It appears that there was no more written correspondence between the parties.
In an attempt to ascertain the status of Ms. Rowe's request, this office made two unsuccessful attempts to contact Ms. Patrick, who had assumed a new position in the school system. On our third attempt, we reached Ms. Patrick. She advised us that Principal Owen Lee Barnett had handled this matter for the council. Mr. Barnett also serves as chairman of the council. In the meantime, we had spoken with Mr. Barnett. He had advised us that Ms. Patrick handled this matter for the council, but that it was his understanding that she had released all existing records which satisfied Ms. Rowe's April 29 request to her. He stated that there was no policy authorizing school monitors to “hunt down” parents.
To confirm that Ms. Rowe had received these records, we contacted her on June 4, 1996. She advised us that she had received no records from the council other than Ms. Patrick's April 30 letter.
We are asked to determine if the Magoffin County High School Site-Based Decision Making Council violated provisions of the Open Records Act in its handling of Ms. Rowe's request. For the reasons set forth below, we conclude that the council's actions violated the Act.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
Nothing in the statute permits an agency to postpone or delay this statutory deadline. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
The Magoffin County High School Site-Based Decision Making Council erred in failing to provide “a detailed explanation” of the cause of the delay and arranging for inspection at the earliest possible date. “Timely access” to public records has been defined as “any time less than three days from agency receipt of the request.” OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 “in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request.” See also, OAG 91-200; OAG 92-35. Although Ms. Patrick offered assurances that the council had begun the process of identifying and compiling the requested records, she did not designate the place, time, and earliest date on which the records would be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. This matter having degenerated into a “swearing contest,” it is unclear when, if ever, Ms. Rowe received the requested records. In its limited role under the Open Records Act, this office cannot resolve such a contest.
In an early opinion, this office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, at p. 3. Nevertheless, we have also recognized:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-374, at p. 5. 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 accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
What appears to be lacking in the present appeal is that spirit of cooperation. Clearly, the council cannot make available records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 91-112; OAG 91-220; 93-ORD-95. If, however, there are documents identified in Ms. Rowe's request with which she has not been provided, the council is legally obligated to locate those documents so that they may be made immediately available to her. Moreover, we encourage the council, as well as the Magoffin County School System generally, to educate its employees on the importance of providing a timely response, as well as timely access, to records requested under the Kentucky Open Records Act. Only through such education can disputes, such as the present one, be avoided in the future.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court ursuant 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/573
Distributed to:
Mary Rowe
P. O. Box 667
Salyersville KY 41465
Kathy Patrick
Secretary
Magoffin County High School
201 Hornet Drive
Salyersville KY 41465
Owen Lee Barnett
Principal
Magoffin County High School
201 Hornet Drive
Salyersville KY 41465
F. C. Bryan
Counsel
Magoffin County School Board
P. O. Box 1425
Mt. Sterling KY 40353