Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented here is whether the Crittenden/Livingston County Water District (District) violated the Open Records Act in its actions relative to the requests of Frank A. Brancato, on behalf of his client Peters Contracting, Inc., for copies of records relating to the contract and services provided to the Crittenden/Livingston County Water District by David Burgess Construction, Stigall Engineering, Associates, Inc., and Quest Engineers, Inc. For the reasons that follow, we conclude that the District has complied with the Act by providing him with records responsive to his request.
On behalf of his client, Mr. Brancato initiated this appeal on December 2, 2002. In his letter of appeal, Mr. Brancato indicated that the District had provided some of the requested records, but further stated:
For reasons which are unknown to Peters, the District has only partially responded to the Open Records Request, and has not provided any written response claiming exemption under any of the provisions of KRS 61.878 , or other interpretations as made in various Opinions of the Attorney General ("OAG"). Of the records which have been provided by the District, those records are missing pages and sections relevant and necessary to the inquiry, and without any explanation by the District. Further, after bringing this to the attention of the District, the district has not made any written response since Peters requested one in writing on July 14, 2002.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Donnie Beavers, District Superintendent, provided this office with a response to the issues raised in the appeal. Mr. Beavers advised, in part:
The District has not and does not intend to deny Peters the right to inspect and/or be provided copies of these records. The District was under the mistaken belief that the records had been supplied. Be that as it may, it has reviewed Attorney Brancato's request and intends to fully comply with that request. It anticipates having all documents to him by Wednesday, December 18, 2002.
By letter dated December 19, 2002, Mr. Brancato advised this office that he had neither been contacted nor received any information or documents from the District. In a follow-up letter, dated December 20, 2002, Mr. Brancato indicated he had received information the previous day, but was not provided all requested items. Expounding on this, Mr. Brancato explained:
The information sent does not include documents in the possession of the District relating to Stigall Engineering, Associates, Inc. ("Stigall"), and Quest Engineers, Inc. ("Quest"). The District previously represented that such contracts exist, but has failed to provide them.
Further, only the contract and agreement with David Burrgess [sic] Construction, Inc. ("Burgess") was provided, and there are no letters, memos, pay applications, or normal contract administration documents provided concerning the administration of the Burgess contract. There were no statements made by the District that such documents concerning Burgess do not exist, and accordingly, there is no assurance that the District has made a good faith attempt to locate the relevant and requested documents. No minutes of any meetings involving Burgess, Stigall or Quest have been provided.
In a letter, dated December 23, 2002, to this office, David L. Kelly, attorney, indicted that he had been retained by the District to address matters relating to Mr. Brancato's open records requests. Responding to issues raised by Mr. Brancato's December 20, 2002 letter, Mr. Kelly provided the following:
First, Mr. Brancato was provided by letter dated July 8, 2002 from attorney Alan Stout the contract between Stigall Engineering and the District. No contract exists between Quest Engineering and the District which counsel for Peters Contracting is well familiar. Nonetheless, by the same letter from attorney Stout, he was provided a "work order agreement" between Stigall Engineering and Quest Engineers, which document I believe was actually obtained from the Engineers. Attached hereto is the July 8, 2002 letter from attorney Stout to Mr. Brancato referencing the transmittal of the documents.
Mr. Brancato complains that he has received no letters, memos, pay applications or normal contract administration documents concerning the administration of the Burgess contract. The District has transmitted all documents in its possession that is responsive to attorney Brancato's request. It is my understanding that he was provided all application for payments evidencing all payments under the Burgess contract. The District is a small public agency. It did not perform contract administration on this job as that task was left up to the engineers. The District does not possess any progress meeting minutes as those too would be in the possession of the engineers.
The District has made a good-faith effort to determine the existence of any documents within the scope of attorney Brancato's request. He has been provided all such documents.
We are asked to determine whether the District's actions in response to Mr. Brancato's request violated the Open Records Act. As noted above, Mr. Kelly's letter states that the District has provided Mr. Brancato with all records it has that are responsive to his request. Under these facts, we conclude that the District has complied with the Open Records Act by providing the requester with the records he requested. If there remain any records in dispute, the requester should contact the District and clarify the precise records he is seeking or specifically identify those records that he believes he requested, but did not receive. If any records still remain in dispute, Mr. Brancato can initiate another appeal to this office or proceed directly to the appropriate circuit court. KRS 61.880; 61.882. In OAG 89-81, the Attorney General stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The parties should continue to cooperate to resolve any differences or misunderstandings related to records sought by Mr. Brancato.
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.