Kentucky Attorney General: JCPS violated open records law - WDRB 41 Louisville News

Kentucky Attorney General: JCPS violated open records law

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LOUISVILLE, Ky. (WDRB) -- Jefferson County Public Schools "violated or subverted" the intent of Kentucky's Open Records Act when it denied a Fern Creek High School parent access to documents he requested, according to decision issued Friday by the state attorney general's office. 

Philip Setters sent JCPS a letter on Oct. 5 requesting records relating to complaints made about or against his children, as well as complaints involving several Fern Creek High staff members. In addition, he requested access to documents about parents' meetings and extra curricular fees and fundraising efforts as well as the district's policy on solicitation of funds.

According to the complaint, JCPS Interim Director of Communications Bonnie Hackbarth advised Setters that a “[w]ebsite location [was] provided” in fulfillment of the request. 

James Herrick, an assistant attorney general, states in his Feb. 5 order that Kentucky's Open Records Act "did not authorize (the) Jefferson County Board of Education to substitute website reference for inspection or copies of requested documents."

Herrick also found that JCPS should not have required Setters to make an appointment for inspection of public records and that the board’s open records policy was not prominently displayed as required by law.

In a letter dated Jan. 7, relating primarily to another appeal filed by Setters, Tyson Gorman -- a lawyer contracted by JCPS -- advised that Setters "has received or has been able to inspect all non-exempt records responsive to his numerous Open Records Requests filed between Oct. 5 and Dec. 28. To that extent we consider this appeal moot as to the records provided."

Hwoever, Herrick found that a Nov. 16, 2015 letter from then-Interim Director of Communications Bonnie Hackbarth Setters "problematic;"

"The Attorney General has previously noted that the Open Records Act generally contemplates records access by means of onsite inspection or receipt of copies through the mail. Inspection on a website “is not [a method] that the Open Records Act specifically contemplates. Therefore, a public agency that offers internet inspection of records as the only option cannot be said to have discharged its statutory duty under the Act. (JCPS) was obliged to provide Mr. Setters with an actual copy or onsite inspection of the requested records," Herrick wrote.

Hackbarth, who no longer works for JCPS, also noted in her Nov. 16 letter that some of the records Setters requested were “[a]vailable for your review by appointment.” 

Herrick wrote:

"While Mr. Gorman has since represented to this office that Mr. Setters is no longer being required to make appointments to inspect records, we find that to the extent appointments may have been required to inspect public records in this case, (JCPS) subverted the intent of KRS 61.872(3)(a), which provides that a person may inspect public records during the agency’s regular office hours.  Our decisions have consistently found that “any attempt by a public agency to limit the period of time within which a requester may inspect public records places ‘an unreasonable and illegal restriction’ upon the requester’s right of access. Accordingly, the attempt to require an appointment subverted the intent of the Act insofar as it contemplates access to public records during an agency’s regular business hours.”  

Gorman stated the district's open records policy is posted in various locations around the Van Hoose Education Center."

But Herrick said:

"Based on the limited descriptions of the locations where the Open Records Policy was posted prior to this appeal, it is not apparent that any of them was “in a prominent location accessible to the general public.”  A member of the general public who was not applying for a job, being assessed, or somehow already involved in operations of JCBE would not likely be present at any of the locations identified.  Furthermore, the subsequent remedial measures described by Mr. Gorman are tantamount to an admission that the earlier postings were not adequate to comply with the statute.  Therefore, we find that JCBE was not in compliance with KRS 61.876(2) on the dates in question."

Reporter Antoinette Konz covers K-12 education for WDRB News. She can be reached at 502-585-0838 or @tkonz on Twitter.

Copyright 2016 WDRB News. All rights reserved.

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