Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Nortonville's response to the open record request of Delbert Powell violated the Open Records Act.
By letter dated February 6, 2002, Mr. Powell requested to inspect the following City records:
1.) The request(s) you received from the secretary, LeAnn, to get college courses while employed by the City of Nortonville.
2.) The minutes where it was voted on to send her to school, if in fact you, or the city, is sending her to school and the name of the class(s) she is enrolled in.
3.) I would like to know under what line item you are paying her since there is not a line item for furthering education.
4.) Also I would like to see the receipts you have for all the items you bought for the secretary.
By letter dated February 8, 2002, James Noel, Mayor, responded to Mr. Powell's request, advising him:
This is in response to the letter that we received on 02-07-02. Excel is not a college course. It is training on spreadsheets. Spreadsheets are used to make and maintain all accounts of the budget. There are no college hours or college credits involved in this class. No approval is needed from the council once the budget has been approved. Therefore, no minutes exist that you are requesting. There is a line item of the budget as well as the line item for the office furniture that was purchased for the City of Nortonville, not specifically for any one person.
In his letter of appeal, Mr. Powell states:
In my letter dated February 6, 2002, I requested to inspect the following records:
1.) The request of the city clerk asking to take college course(s) to further her education while employed by the city of Nortonville. I did not receive this.
2.) I received a copy of the expenditures of the capital outlay which has been masked over. If there were something there I should not have seen, I should have gotten a KRS quoting the reason for me not to see them.
3.) I also asked for receipts of items purchased for the city clerk/ secretary. I received two items, a chair and a desk, but I did not receive a receipt for the bookcase.
After receipt of Notification of Mr. Powell's appeal to this office and a copy of his letter of appeal, William M. Cox, Jr., Assistant City Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Cox, in pertinent part, stated:
With regard to numerical paragraph 1 of Mr. Powell's letter of appeal, he correctly states that he did not receive any written requests from the City Clerk asking to take college courses. However, the reason that Mr. Powell did not receive this written request is that no written request exists. After receiving the pamphlet outlining the class schedule and discussing the class and its benefits with the City Clerk, the Mayor authorized the City Clerk to enroll in the Intro to Excel class held at the Madisonville Community College. No written records exist relating to the class, other than the pamphlet received from the Madisonville Community College showing the class dates and cost. A copy of the pamphlet was provided to Mr. Powell in the City's letter dated February 8, 2002.
With regard to numerical paragraph 1 of Mr. Powell's letter of appeal, he correctly states that the City masked over portions of the City budget. In numerical paragraph 3 of his original letter, dated February 6, 2002, Mr. Powell asked for the line item under which "you are paying her since there is not a line for furthering education." The City interpreted this as a request for the budget line item under which the cost of the class was paid, and this line item was provided to Mr. Powell in the City's response. Specifically, the line item used was the Travel & Training line item of the budget which was previously approved by the Nortonville City Council on July 2, 2001. The City provided Mr. Powell with the specific line item he requested. Mr. Powell did not ask for a complete copy of the budget, and the City properly masked the portions of the budget that were not responsive to Mr. Powell's request. In short, Mr. Powell got exactly what he requested in numerical paragraph 3 of his original letter.
With regard to numerical paragraph 4 of Mr. Powell's letter of appeal, he correctly states that he received copies of two invoices submitted to the City of Nortonville by Madisonville Supply, Inc., a local office supply vendor. In Mr. Powell's original letter to the City, he asked to see "the receipts you have for all items you bought for the secretary. " While his letter did not state a specific time period for this request, in an effort to comply with his request, the City provided copies of two invoices for furniture purchased for use by Leanne Allen. Mr. Powell now complains in his letter of appeal that he did not receive a receipt for the bookcase. The reason for this is that the cost of the bookcase was included in the invoice for the desk. Specifically, the invoice numbered 130196 and dated 1/25/02 in the amount of $ 850.00 includes both the cost of the desk and the cost of the bookshelf. While Mr. Powell did not request the specific line item used for the purchase of this furniture, the City provided him a copy of said line item in its response to his original letter.
We are asked to determine whether the response of the City to Mr. Powell's request violated the Open Records Act. For the reasons that follow, we conclude that the actions of the City were proper and did not constitute a violation of the Act.
We address first the request for records in which the City received a request from its secretary "to get college courses while employed by the City" and the "minutes where it was voted on to send her to school." As noted in the quoted portions of the City's initial and supplemental response, the City advised Mr. Powell that no such records exist and explained why.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The City, in its initial and supplemental response, advised Mr. Powell that no such records exist and explained why. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the responses of the City relative to these records was proper and in accord with the requirements of the Open Records Act and prior decisions of this office.
Next, we address the request for the line item of the budget under which the City was paying for the secretary to take the class. A record of this line item was provided to Mr. Powell, thus this portion of the appeal is moot. 40 KAR 1:030, Section 6. Mr. Powell complains that other portions of the budget were masked out. However, as the City pointed out in its supplemental response, Mr. Powell did not ask for a complete copy of the budget. If he wishes a complete copy of the budget, he should submit a request for that record.
Finally, we address the issue as to whether the City provided Mr. Powell with a copy of a receipt for the bookcase. The City's supplemental response explained "the cost of the bookcase was included in the invoice for the desk. Specifically, the invoice numbered 130196 and dated 1/25/02 in the amount of $ 850.00 includes both the cost of the desk and the cost of the bookshelf. " Thus, the requested record was provided to Mr. Powell and the issue as to this is also moot.
Mr. Powell, in his letter of appeal, stated that had requested to inspect the records. He does not assert that he was denied the right to inspect the record. The City, apparently for Mr. Powell's convenience, provided him with copies of the requested records and an affirmative response and explanation as to why certain requested records did not exist. If this was unsatisfactory to Mr. Powell, he may assert his right to inspect the records, under authority of KRS 61.872(3), which provides:
(3) A person may inspect the public records:
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.
Delbert PowellBox 692Nortonville, KY 42442
James NoelMayorCity of Nortonville199 South Main StreetNortonville, KY 42442
William M. CoxAssistant City Attorney29 E. Center StreetMadisonville, KY 42431