Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the City of Russell Springs relative to the open record request of Lillard Pettyjohn violated the Open Records Act. Because the City has provided Mr. Pettyjohn with access to certain records he requested, we conclude the issue as to those records is moot and no decision will be rendered as to them. 40 KAR 1:030, Section 6. However, because the appeal raises possible records management issues, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
On March 3, 2005, Mr. Pettyjohn submitted a request to the City for a "copy of Police Policy & Procedures" and a copy of Joe M. Irvin's Employment Application. " Notations on the request letter, signed or initialed by Wendy Burton, City Clerk, indicate that Mr. Pettyjohn was given a copy of the Police Policy & Procedures document and he was advised that there was "no application in file at City Hall."
On March 22, 2005, Mr. Pettyjohn submitted another request to the City for a copy of the "March 10, 2005 Reg. Monthly Meeting" and a copy of "March 10 minutes. " Notations on the request letter, signed by Wendy Burton, City Clerk, indicate that Mr. Pettyjohn received a copy of the March 10, 2005 meeting tape.
In his letter of appeal, Mr. Pettyjohn indicated, among other things, that he was informed in response to his request for the application of Police Chief Irvin that "his records had been lost three different times, so none were on file."
After receipt of notification of the appeal and a copy of the letter of appeal, David F. Smith, City Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Smith advised, in relevant part:
I write to respond to the notification of open records appeal. Enclosed is a copy of the document which Mr. Pettyjohn received. He was furnished a copy of the police policy and procedures manual and there is no employment application for Chief Joe M. Irvin on file at City Hall. It has been acknowledged that Chief Irvin had filed an application on more than one occasion and somehow it or they were misplaced. Mr. Pettyjohn acknowledged receipt of the policy and procedures manual.
Mr. Pettyjohn was given a copy of the audio tape of the meeting and will be given a copy of the minutes when they are approved or the next regular meeting, Thursday, April 14, 2005.
We find no error in that portion of the City's response that, at the time of Mr. Pettyjohn's request for a copy of the minutes of the March 10, 2005 meeting, there were no official minutes, as they had yet to be prepared and had not been officially approved by the City. 03-ORD-033 and 93-ORD-67.
[T]he Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
OAG 80-421, p. 3. This is because written and shorthand notes:
OAG 79-333, p. 1, 2.
98-ORD-36, p. 3, 4. The City has advised that Mr. Pettyjohn will be given a copy of the requested minutes when they are approved or at the next regular meeting, Thursday, April 14, 2005.
Pursuant to 40 KAR 1:030, Section 6: "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." 04-ORD-106. Since the City has provided Mr. Pettyjohn with a copy of the police policy and procedures manual and the tape of the March 10, 2005 meeting, we conclude that the appeal as to access to these records is moot and no decision will be rendered as to them.
Under the facts of this appeal, this office is unable to determine the location of the employment application of Chief Joe M. Irvin or what happened to it. The City contends that it does not have the requested record on file at City Hall. Accordingly, we conclude that the response of the City that it could not provide copies of records that it did not have, was consistent with the Open Records Act and prior decisions of this office. 98-ORD-126.
Nevertheless, the City has an obligation relative to proper records management and retention. The fact that the requested employment application is lost, has been misplaced, or cannot be located suggests that a management of records issue is present. KRS 61.8715 provides:
[T]o 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 . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740 , relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the City in determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
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.