NOT TO BE PUBLISHED

96-ORD-190

September 11, 1996

In re: John S. Johnson/Leslie County Public Schools

Open Records Decision

This matter comes to the Attorney General on appeal from the response of the Leslie County Board of Education to Mr. John S. Johnson's open records request to inspect certain records pertaining to a Leslie County Vocational School Class Field Trip, made by Mrs. Agnes Melton's Business Law Class during March 19-20, 1992, to the Leslie County Courthouse to observe the jury trial of John S. Johnson.

Specifically, Mr. Johnson requested copies of the following records:

(1) Document or memorandum that reflects the school policy or agenda that sets-forth the prerequisites associated with such class field trips.

(2) Records or papers that reflect the lesson plan of the aforesaid class field trip and any follow-up report made there-in-after.

(3) Transportation request and order or any relative record thereof.

(4) Parental permission forms or slips.

In his letter of appeal, Mr. Johnson states that he mailed his open records request to the Superintendent's Office on July 25, 1996 and that as of August 14, 1996, he had received no response to his request.

After receipt of Mr. Johnson's letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Thomas J. Sizemore, Assistant Superintendent, Leslie County Schools, provided this office with a response to the issues raised in this appeal. Mr. Sizemore stated that the delay in responding to the open records request was due to the principal at the Leslie County Vocational School being on vacation and family illness. However, he indicated that a response to Mr. Johnson's request had been made on August 19, 1996, by providing him with copies of the documents he requested with the exception of permission slips, transportation slips, and lesson plans.

Mr. Sizemore, in his response to Mr. Johnson, enclosed a letter from Ms. Betty L. Huff, Principal, Leslie County Vocational Education Center, to Mr. Richard P. Bowling, Superintendent, Leslie County Board of Education, regarding the open records request. Ms. Huff explained that the school no longer had the permission slips, transportation records or lesson plans as such documents were retained for only one year after the student exits the class.

We are asked to determine if the Superintendent's Office acted in accordance with the Open Records Act. For the reasons which follow, we conclude that the actions of that office were in substantial compliance with the 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.

Because the Superintendent's Office failed to respond to Mr. Johnson's request, in writing, and within three business days, its actions constituted a procedural violation of the Open Records Act. However, this violation is mitigated by the fact that Mr. Johnson was provided the records he requested which were still in existence and informed others were not provided because the school no longer had the requested records as it retained those records for only one year after the student exits the school.

This office has consistently recognized that a public agency cannot furnish access to documents which it does not have or which do not exist. 96-ORD-163; 94-ORD-65. Accordingly, as to the substantive issue, it is the decision of this office that the response of the Superintendent's Office was consistent with the Open Records Act in providing him with copies of requested records which the agency still maintained and explaining to him that others could not be provided because they no longer existed.

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.

Sincerely,

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

969

Distributed to:

John S. Johnson #114593

Eastern Kentucky Correctional Complex

P. O. Box 636

West Liberty KY 41472

Thomas J. Sizemore

Assistant Superintendent

Leslie County Schools

P. O. Box 949

Hyden KY 41749