Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Fayette Urban County Government violated the Kentucky Open Records Act in partially denying the request of John Fritz for "the originals, and one true copy each" of ten categories of "documents and information, regardless of what form it exists in," related to the LFUCG traffic surveillance cameras and two Internal Affairs investigations. Relative to those records which do not exist, the LFUCG discharged its statutory duty by affirmatively indicating as much to Mr. Fritz in a timely written response. With respect to those records which the LFUCG has provided to Mr. Fritz, any issues are now moot. In denying Mr. Fritz access to the specified Internal Affairs complaints, investigation files, and disposition letters, the LFUCG properly relied upon KRS 61.878(1)(i) and (j) since the investigations are ongoing. Requesting clarification, as the LFUCG did relative to certain records, is not the equivalent of denying access. However, the LFUCG erred in denying Mr. Fritz access to the cancelled checks requested, which are currently maintained by a private agency at the instance of and as custodian on behalf of the LFUCG, merely because those records are not currently in the custody of the LFUCG. Assuming such records exist, the LFUCG must provide Mr. Fritz with redacted copies upon receipt of the applicable fee. With this exception, the LFUCG has complied with the Open Records Act.
By letter directed to the LFUCG "Corporate Counsel for Open Records Requests" and "Open Records Custodians" on February 4, 2005, Mr. Fritz requested access to the following items:
1. The LFUCG retention policy regarding use of traffic cameras including but not limited to retention of videotape recordings made from traffic camera views of traffic flow and traffic accidents for the period of time 2003-2005.
2. Traffic camera videotape recordings of the traffic accident between [O]fficer John Lamb and Rachel Burns on Harrodsburg Road in the year 2003 or 2004.
3. Traffic camera videotape recordings of the traffic accident between officer Cobb and Tracey Carter at Dove Run Rd and Tates Creek on Friday[,] January 28, 2005[,] between the hours of 1:45AM and 2:45 AM.
4. Internal Affairs complaint/investigation and disposition letter regarding the traffic accident between [O]fficer John Lamb and Rachel Burns on Harrodsburg Road in the year 2003 or 2004.
5. Internal Affairs complaint/investigation and disposition letter regarding the traffic accident between [Officer] Cobb and Tracey Carter at Dove Run Road and Tates Creek on Friday[,] January 28, 2005[,] between the hours of 1:45 AM and 2:45 AM.
6. A list/inventory of the LFUCG traffic cameras showing the locations of each camera between January 1, 2003[,] to the date on which you respond to these requests.
7. The LFUCG traffic camera use and procedures policies in force between January 1, 2003[,] to the date on which you respond to these requests.
8. Engineering and technical specifications on each camera for each location showing service dates, installation dates, the f-stop, focal length of the lens, lens strength, focus distance, focus type, manufacturer, warranty, etc.
9. Cancelled check(s) to the company providing installation of the LFUCG traffic cameras that view the area of [O]fficer John Lamb's fatal accident with Rachel Burns on Harrodsburg Road AND [O]fficer Cobb's accident with Tracy Carter on January 28[,] 2005[,] at Dove Run Rd. and Tates Creek.
10. Cancelled check(s) to the company that sold the specific LFUCG traffic cameras that view the area of [O]fficer John Lamb's fatal accident with Rachel Burns on Harrodsburg Road AND [O]fficer Cobb's accident with Tracey Carter on January 28 at Dove Run Rd and Tates Creek.
11. The documents and information listed in requests 1 through 10 hereinabove, in electronic format (including but not limited to cassette tape copy and computer diskette copies in all software formats) as well as paper copies.
On February 8, 2005, Michael R. Sanner, Corporate Counsel, responded to Mr. Fritz's request on behalf of the LFUCG as follows:
With regard to items 1, 2, and 3, no documents were found that were responsive to your request.
With regard to items 4 and 5, no official complaints were filed. The investigation file is exempt pursuant to KRS 61.878(1)[] as (i) preliminary drafts, notes, correspondence from private individuals other than correspondence which is intended to give notice of final action of a public agency and (j) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. The investigations are still open so there is no final disposition at this time.
With regard to items 6 and 7, a search is being conducted for documents that are responsive to your request. Because of the time frame of your request I will update you by letter in 5-7 business days regarding the status of this search. At that time, all non-exempt documents will be made available for your inspection.
With regard to item 8, this request cannot be processed until you clarify a time frame for your request.
With regard to items 9 and 10 of your request, the [LFUCG] does not receive [cancelled] checks. Therefore, there are no documents that are responsive to your request. If you would like to see a yellow carbon copy of the actual check that went out, please inform me in writing as this does not conform with the parameters of your original request.
By letter dated February 18, 2005, Mr. Sanner advised Mr. Fritz that the documents which are responsive to Item No. 6 of his request are available for inspection at the Department of Law. Upon Mr. Fritz's inspection of the documents, the LFUCG will make copies for ten cents per page. With regard to Item No. 7 of Mr. Fritz's request, "there has not been an adopted LFUCG written use and procedure policy on the traffic surveillance cameras to date." Therefore, the LFUCG does not have any records which are responsive to Mr. Fritz's request. Relying upon the United States Constitution, the Kentucky Constitution, and public policy, in addition to the Open Records Act, Mr. Fritz initiated this appeal in a letter dated March 11, 2005. In addition, Mr. Fritz contends that prior release by the LFUCG "of the very same types of materials in response to virtually the same wording in prior requests constitutes proof that the similar materials must be released," and "constitutes a waiver of any right to conceal the material." 1 For example, Mr. Fritz was never required to request a "yellow carbon copy" in order to access cancelled checks before now. Although Mr. Fritz has informed the LFUCG that he wishes to inspect such records, the LFUCG has still not honored his request.
Upon receiving notification of Mr. Fritz's appeal, Mr. Sanner elaborated upon the position of the LFUCG. According to the LFUCG, Mr. Fritz has neglected to inform Mr. Sanner in writing of his wish "to inspect said checks." With regard to Item No. 1, Mr. Sanner investigated with the Division of Traffic Engineering which oversees the use of the traffic cameras, and was "informed there were no written retention policy documents responsive to Mr. Fritz's request." As correctly observed by the LFUCG, the Attorney General has consistently held that an agency cannot produce records which do not exist. Because Mr. Fritz was so notified, the LFUCG asks this office to uphold its denial of this request. Likewise, Mr. Sanner investigated with the Division as to the existence of videotape recordings generated by traffic cameras throughout the city. Mr. Sanner was informed "the traffic cameras are for live shots only and there is never any recording done by the traffic cameras. " Accordingly, no records exist which are responsive to Item Nos. 2 and 3 of Mr. Fritz's request, and the LFUCG so advised him.
With regard to Item Nos. 4 and 5 of Mr. Fritz's request, Mr. Sanner investigated with Internal Affairs at the Division of Police, where he was informed that no official complaint was filed "as this was initiated as an internal investigation." At the time of his investigation, Mr. Sanner was further informed "that the Internal Affairs investigation was still open so there was no final disposition letter at that time." In addition, the investigation file is exempt pursuant to KRS 61.878(1)(h), (i) and (j), since the investigation is still open. As the Attorney General has "consistently held that Internal Affairs investigative files are exempt from public inspection while the investigation is open[,]" the LFUCG notified Mr. Fritz that an official complaint was not filed nor is the investigative file subject to inspection. In reference to Item No. 6, the LFUCG notified Mr. Fritz that the documents are available for inspection. 2 To address Item No. 7, Mr. Sanner again consulted the Division of Traffic Engineering. Having searched its files, the Division informed Mr. Sanner "there were no written adopted LFUCG use and procedure policies on traffic surveillance cameras responsive to Mr. Fritz's request." Reiterating that a public agency cannot provide records which do not exist, the LFUCG observes that Mr. Fritz was so notified.
"As written," Item No. 8 of Mr. Fritz's request "would require the LFUCG to search documents back to the beginning of time as he provided no time frame for his request." Accordingly, Mr. Sanner advised Mr. Fritz that his request could not be processed until he clarified the time frame for which the LFUCG could search for documents. Implicitly relying upon KRS 61.872(6), the LFUCG argues that searching for responsive documents "with an unspecified time frame" would be pose an "undue burden" on the LFUCG as it would "require innumerable man-hours to search for documents with no time limitations." As of March 21, 2005, Mr. Fritz had not narrowed his request. With regard to Item Nos. 9 and 10, Mr. Sanner advises this office, in relevant part, as follows:
I investigated the existence of cancelled checks with the Division of Accounting and found out that LFUCG does not receive cancelled checks back from the bank after the payee has endorsed the checks. Cancelled checks by definitions (sic) are the actual checks made payable to the payee, [and] endorsed by the payee, the payee's bank and the payor's bank. Since these checks are not in the custody of the LFUCG, I offered Mr. Fritz a chance to view yellow carbon copies of the checks sent to the payees. These yellow carbon copies are substantially different from the cancelled check Mr. Fritz wished to inspect. The yellow carbon copies do not have the endorsement of the payee, [the] payee's bank, or the payor's bank. To this date, Mr. Fritz has not responded in writing or verbally to me as to whether he wish[es] to inspect the yellow carbon copies of checks as a substitute for his original request of cancelled checks. If Mr. Fritz did wish to inspect yellow carbon copies of the checks, an investigation would be done to determine if said copies do exist.
In Mr. Sanner's view, the LFUCG offered Mr. Fritz an alternative "which he neglected to exercise." Accordingly, the LFUCG requests that Item Nos. 9 and 10 be "be denied" as the LFUCG cannot produce for inspection and copying documents which "do not exist," and "Mr. Fritz has not exercised the option to inspect similar yet different documents." Because this assertion by the LFUCG relative to Items 9 and 10 is based upon a faulty premise, namely, that lack of custody is necessarily the functional equivalent of not existing, and thereby relieves the LFUCG of its duty to provide access, this office respectfully disagrees with its position in this context.
Our analysis begins with those records identified as Item No. 6, to which the LFUCG has agreed to provide Mr. Fritz with access. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that if access to public records which are being sought for inspection or copying is initially denied by subsequently granted, "the propriety of the initial denial becomes moot. " OAG 91-140. As evidenced by the factual history, the LFUCG has made the "list/inventory of the LFUCG traffic cameras" available to Mr. Fritz for inspection, and further agreed to provide Mr. Fritz with copies upon receipt of payment. That being the case, any issues relative to those records are now moot, so this office must decline to issue a decision on the merits as to those records. In a similar vein, the LFUCG has requested clarification as to the scope of Item No. 8. Given Mr. Fritz's lack of specificity, such a request is not unjustified in our view, nor is such a request properly characterized as a denial. 04-ORD-198, p. 3; See also 04-ORD-083; 03-ORD-067. Assuming Mr. Fritz narrows his request by specifying the relevant time frame as requested, the LFUCG should provide Mr. Fritz with access to any existing records which are responsive to his request for the "engineering and technical specifications," etc. for each camera. 3
On appeal, the LFUCG reiterates that no records exist which are responsive to Item Nos. 1, 2, 3, and 7, of Mr. Fritz's request, and correctly argues that the LFUCG cannot produce records which do not exist. To clarify, the right to inspect attaches only after the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 2, citing 97-ORD-18. As long recognized by the Attorney General, a public agency "cannot provide access to records that it does not have or which do not exist." 03-ORD-205, p. 3, citing 99-ORD-98; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134; OAG 91-203; OAG 87-54; OAG 83-111. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Because the inability of the LFUCG to produce the requested records "due to their apparent nonexistence is tantamount to a partial denial" of Mr. Fritz's request, it was incumbent on the LGUCG to so indicate in "clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38, p. 3; 00-ORD-083; 97-ORD-16; 96-ORD-164.
While an agency obviously cannot produce for inspection or copying that which is does not have or which does not exist, "a written response that does not clearly so state is deficient." 02-ORD-144, p. 3. Conversely, a public agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the LFUCG did here. 05-ORD-021, p. 6, citing 03-ORD-205, p. 3. When an agency denies the existence of requested records, the function of this office is to review the course of action taken by a public agency, not to find the documents that a party is seeking to inspect. Id. In other words, this office is not "empowered to go beyond the written record to determine whether [LFUCG] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
In the absence of evidence to the contrary, which is noticeably lacking from the record, this office must assume the truthfulness of the assertion by the LFUCG that no records matching the descriptions provided currently exist. 4 Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by documenting any efforts made to locate responsive records or explaining why no such records exist consistent with the mandate of KRS 61.8715, 5 when, as is the case here, the agency denies that the records were ever created and the record does not refute that contention, further inquiry is not warranted. 02-ORD-118; 01-ORD-36; 00-ORD-83; 99-ORD-108. Because Mr. Fritz does not cite, nor has our research revealed, any legal authority pursuant to which the LFUCG must maintain records which are responsive to Item Nos. 1, 2, 3, and 7 of his request, the LFUCG cannot provide "that which it does not have," and has affirmatively indicated as much to Mr. Fritz, its denial on this basis is affirmed.
Turning to Item Nos. 4 and 5, which the LFUCG denied pursuant to KRS 61.878(1)(i) and (j), the reasoning contained in 04-ORD-162, a copy of which is attached hereto and incorporated by reference, is determinative, although a contrary outcome is dictated. Because no final action has been taken, it stands to reason that no findings or recommendations have been adopted as a basis for such action nor does a final "disposition letter" exist. That being the case, the records at issue are still properly characterized as preliminary and, therefore, are not subject to inspection at this time. See also 04-ORD-163; Compare 02-ORD-25. In light of this determination, the remaining question is whether the LFUCG properly responded to Item Nos. 9 and 10.
Generally speaking, the financial and operational records of a public agency are subject to inspection. See 04-ORD-113 (bank statements); 98-ORD-17 (records documenting deposits, interest rates, account fees, and a list of all certificates of deposit or repurchase agreements); OAG 91-7, p. 3 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" 0; OAG 90-30, p. 3 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 89-91, pp. 3-4 ("Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets of the city" are among the categories of records properly characterized as "generally recognized public recordation subject to public scrutiny in a city clerk's office"); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 76-648 (holding that "wherever public funds go, public interest follows"). Here, the LFUCG does not challenge the status of the cancelled checks, relying instead upon the location of those public records in denying access to the originals, which the LFUCG acknowledges are substantially different from the "yellow carbon copies" offered as a substitute. 6
In an unpublished opinion issued in 1999, the Kentucky Court of Appeals conclusively resolved this issue, holding that documentation of legal expenses billed to the City of Louisville by its private contract attorneys are public records for purposes of the Open Records Act, notwithstanding the fact that the documentation is not in the City's possession. City of Louisville v. Brian L. Cullinan, No. 1998-CA-001237-MR (Ky. App. 1999). Citing KRS 61.870(2), the Court observed:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents supporting fees to be billed and paid by the City for legal services rendered. Certainly, the City would not have been authorized to pay money to the contract law firm without the benefit of such records.
We are of the opinion that the question as to custody and possession of these records was answered by the contract law firm when it stated, "[w]e have not been granted permission by our clients to disclose to you the records in question." It is clear from this response that the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.872(6). In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. 66 Am. Jur. 2d Records and Recording Laws, []3 (1973).
City of Louisville at 4. See 04-ORD-123. In our view, this reasoning is equally applicable on the facts presented. 7 Regardless of where the cancelled checks are located, those records were "prepared, owned, and used at the instance of" the LFUCG. Although the bank is currently acting "as custodian on the [LFUCG's] behalf," it is the "nature and purpose" of those records which determines their status as public records. Accordingly, the LFUCG must provide Mr. Fritz with access to redacted copies 8 of the cancelled checks requested upon receipt of the copying fee. 9
A party aggrieved by this decision may appeal it by initiating an 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.
John Fritz, M.S.P.O. Box 1551Lexington, KY 40588-1551
Michael R. SannerCorporate CounselDepartment of LawLexington Fayette Urban County Government200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 Noticeably absent is any documentation to support this assertion.
2 A requester that both lives and works in the county where the public records are located, as appears to be the case here, may be required to inspect the records prior to receiving copies. 03-ORD-067, p. 4.
3 On appeal, the LFUCG attempts to invoke KRS 61.872(6), albeit implicitly, for the first time. On this issue, the analysis contained in 04-ORD-028, a copy of which is attached hereto and incorporated by reference, is equally applicable here, although the opposite result could arguably be reached. Because the LFUCG did not initially rely upon this provision in responding to Item No. 8 of Mr. Fritz's request, and the LFUCG has exhibited a willingness to disclose the records therein identified upon receiving clarification, at which point any issues relative to those records will become moot, further analysis is unwarranted.
4 With respect to this issue, the Attorney General has observed:
[T]he Open Records Act does not empower the Attorney General to order the creation of records. Nor does the Act require agencies to create records. See OAGs 78-231, 79-547, 80-308, 83-111, 89-32, 89-66. In 95-ORD-48, the Attorney General reevaluated this longstanding principle, in light of recent amendments to the law, and expressly declined "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department of Libraries and Archives,' what records they must create. KRS 171.640." Thus, we have affirmed the principles articulated in OAG 78-231, and subsequent opinions, relative to records creation, and concluded that the Attorney General cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act.
96-ORD-139, pp. 2-3; 00-ORD-16. Having confirmed with the Department of Libraries and Archives that the LFUCG is not currently required to maintain records of the type requested pursuant to the applicable Records Retention Schedule, a referral to that agency is not deemed necessary.
5 In relevant part, KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
6 Although the LFUCG contends that Mr. Fritz has neglected to modify his request in writing, Mr. Fritz asserts that he has informed the LFUCG that he wants to see the carbon copies but has not been provided with access. If so, the LFUCG should honor Mr. Fritz's request to view the carbon copies as agreed, in which case any relative issues will be moot.
7 Although City of Louisville v. Brian L. Cullinan is an unpublished decision which cannot be cited or used as authority in any other case in any court of this state pursuant to CR 76.28(4)(c), it is indicative of the view held by the Court in the absence of a contrary opinion as well as the view which the Court might subsequently adopt in a published opinion relative to the duties of public agencies to produce public records which are maintained somewhere other than the public agency.
8 If the LFUCG redacts any information from the records requested, it must cite the applicable exception and provide a brief explanation of how the exception applies to the information withheld as mandated by KRS 61.880(1).
9 Pursuant to KRS 61.874(3), the LFUCG may also require payment of the additional cost, if any, incurred in acquiring the copies from the bank, but may not assess any charges beyond that.