NOT TO BE PUBLISHED
96-ORD-146
June 24, 1996
In re: Kathleen Flesch/Beechwood Independent Schools
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Beechwood Independent Schools' responses to a series of requests for records submitted by Kathleen Flesch from April 24, 1996, to the present. Our review of the records submitted by Ms. Flesch indicates that on April 24, she requested copies of team sports rosters for the 1994/95 and 1995/96 school years, and copies of “all athletic expenditures” for these years “listed out by team.” Superintendent Gary V. Branson responded to Ms. Flesch's request on April 26, advising her that he had forwarded her request to the Beechwood High School Site Based Decision Making Council, since his office does not maintain athletic records.
On May 1, Ms. Flesch resubmitted her request to Carl Hicks, principal and chairman of the site-based decision making council. Shortly thereafter, she received a packet of materials which included the 1995/96 and 1994/95 athletic budgets, as well as the 1995/96 and 1994/95 “Kentucky High School Athletic Association Annual Interscholastic Athletics Participation List.”
Dissatisfied with this response, which she characterized as “nonresponsive,” on May 3 Ms. Flesch again requested 1994/95 and 1995/96 team rosters, and “all athletic expenditures” for the same school years. Three days later, she received another packet of materials, some duplicative in nature. The packet contained the Beechwood girls and boys basketball, and boys football, rosters for junior varsity and varsity teams, and monthly budget statements showing receipts and disbursements with the relevant sections highlighted. Assistant Principal Bob Burnett explained that the school does not maintain rosters on all sports. He therefore provided Ms. Flesch with the more extensive state participation listing in response to her May 1 request, and again in this packet of materials.
On February 7, Ms. Flesch received a supplemental packet of materials containing handwritten rosters for the boys tennis, girls tennis, girls softball, girls volleyball, boys and girls swimming, girls basketball, boys football, boys basketball, boys and girls golf, and boys baseball teams. The lists did not contain designations by year.
Ms. Flesch submitted a fourth request on May 9, 1996. On that date, she asked for “a list of all special supplemental employee contracts for the `94-'95 and `95-'96 school years,” including who the contract is with, how much they are paid, and what services they perform. In response, Superintendent Branson provided her with copies of the 1994/95 and 1995/96 ECA [1] Assignments lists, reflecting the employee's identity and his or her assignment, and the ECA schedules for 1995-96 and 1993-94, reflecting amounts paid on a step scale.
Still dissatisfied, Ms. Flesch initiated this open records appeal, arguing that the school system has not adequately responded to her requests. She notes that although she received undated rosters for what appears to be the 1995/96 school year, she did not receive rosters for the 1994/95 school year. Moreover, she maintains that the documents released in response to her May 9 request for supplemental employee contracts do not contain the information she requested. [2]
In a letter to this office dated May 31, 1996, Superintendent Branson advised that the high school and the central office had furnished Ms. Flesch with the records believed to be responsive to her request, attaching copies of those records to facilitate our review. He noted that many of her inquiries were couched in terms of requests for information, which the school system is not required to honor. Further, he expressed the view that the school system is “not required to edit, research, prepare reports, condense or compile information” to satisfy her requests. In summary, Superintendent Branson argued that Ms. Flesch's “appeal appears to be based on the fact that . . . [she] doesn't like the information in our records or the way data is displayed.”
Responding to Superintendent Branson's letter, Ms. Flesch again contacted this office on June 7, furnishing us with copies of all documents she received from the school system. [3] Reasserting her view that the school system has not acted in good faith, she complains that if, in fact, it is the school system's position that it is not obligated to compile records containing the information she requests, she should be so notified, and afforded an opportunity to conduct an on-site inspection.
We are asked to determine if the Beechwood Independent Schools violated provisions of the Open Records Act in responding to Ms. Flesch's requests. For the reasons set forth below, we conclude that the school system's responses were in substantial compliance with 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. Alternatively, the agency may make the records available for immediate on-site inspection or provide the requester with copies of the requested records. Hence, the custodian need only advise the requester that his or her request will be honored, and either append the records or notify the requester that they are available for immediate inspection per KRS 61.872(3)(a) and (b). That statute provides:
(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.
The Beechwood Independent Schools complied with the provisions of the Open Records Act by furnishing Ms. Flesch with copies of records which contained the information she requested, to the extent that such records existed. The Open Records Act does not require more.
This office has long recognized that “[t]he purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law.” OAG 79-547. Elaborating on this view, the Attorney General has observed:
The Open Records statutes provide the inspection of public records not excepted from inspection in accordance with those statutes. Those statutes do not provide that records offered for inspection must show information that perhaps should be shown upon such records. . . .
OAG 89-66, p. 3.
Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See (OAG) 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. The public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information. Ms. Flesch should bear these principles in mind in formulating her open records request.
Nevertheless, it is the opinion of this office that the school system erred in failing to advise Ms. Flesch that certain records she requested, such as records reflecting athletic expenditures “listed out by team,” do not exist. In OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In OAG 90-26, at page 4, we categorically stated, “If a record of which inspection is sought does not exist, the agency should specifically so indicate.”
This Office has recognized that an agency obviously cannot furnish records which it does not have in its possession. OAG 83-111; OG 87-54; OAG 88-5. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. OAG 86-35. However, we are unable to discharge our duty under the open records statutes, i.e., to review an agency denial and issue a written opinion stating whether the agency acted properly, if the agency does not provide an adequate response to the request. Compare, 94-ORD-15. If there are documents identified in Ms. Flesch's request with which she has not been provided, the school system is legally obligated to locate those documents so that they may be made immediately available to her.
We urge the Beechwood Independent Schools to consider these observations in future responses to open records requests.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
aps/627
Distributed to:
Gary V. Branson
Superintendent
Beechwood Independent Schools
50 Beechwood Road
Ft. Mitchell KY 41017
Kathleen Flesch
96 Burdsall Avenue
Ft. Mitchell KY 41017
[1] We assume that this is an abbreviation for “Extra-Curricular Activities.”
[2] Ms. Flesch also raises various questions about the gender equity issues which prompted her requests. Inasmuch as these questions cannot be resolved in an open records appeal, we do not address them.
[3] Ms. Flesch expresses concern that she has not received copies of all records which Superintendent Branson sent to this office. Having reviewed both sets of records, we conclude that she received all of the records, and that the discrepancy in the total number sent resulted from the use of faxed one sided copies versus xeroxed two sided copies.