Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Russellville violated the Open Records Act in the disposition of Peggy S. Jenkins' request to inspect, and/or obtain copies of, public records. For the reasons that follow, we find that the City's disposition of her request was procedurally deficient and constituted a violation of the Act.
On May 12, 2004, Ms. Jenkins hand-delivered to the office of the City Clerk for the City of Russellville a request for copies of records consisting of: 1) the minutes and videotape of the May 4, 2004, city council meeting; 2) the video and transcript of the May 10, 2004 city council meeting; 3) all checks, front and back, discussed during the May 10, 2004, meeting; and 4) documents supporting the overdraft charges that were discussed during the May 10, 2004, meeting. On May 13, 2004, the City responded, through Assistant City Clerk Jan W. Robbins, that copies of the minutes could "not be given to the public until their approval," and that the City Council was expected to approve them at the May 18, 2004, meeting. Ms. Robbins indicated that Ms. Jenkins "would be notified by phone" when the minutes and videotape of the May 4 meeting were available. The City advised that the records identified in requests two, three, and four, were not available "through City open records," explaining:
The hearing was not a Special Called Session of the City Council so therefore no minutes were taken and no transcripts will be presented to the Council. Any information needed to be obtained regarding that meeting will need to be made through Attorney Fred Greene since he conducted the meeting.
Nearly ten months later, Ms. Jenkins initiated this appeal the requested records having never been produced.
In supplemental correspondence directed to this office following commencement of Ms. Jenkins' appeal, Russellville City Attorney C. Robert Hedges responded to allegations contained therein. Mr. Hedges advised that all of the records identified in Ms. Jenkins' May 12, 2004, request were being forwarded to her with the exception of the transcript of the May 10, 2004, meeting. He explained that although a court reporter recorded the meeting in stenotypy, no transcript was requested or generated, and that therefore no responsive record exists. In later correspondence, Mr. Hedges acknowledged that a subsequent search for the transcript disclosed its existence and indicated that a copy was sent to Ms. Jenkins. He asserted that "[t]o date, the City has responded in full to Ms. Jenkins' request that is the subject of this appeal" by furnishing the requested documents or making them available for inspection and copying, but noted that "[t]he City simply did not have some of the documents Ms. Jenkins apparently believed existed." To insure that the problem giving rise to this appeal does not recur, he indicated that the City would establish a tickler system to insure timely disclosure of public records. 1
By letter dated March 29, 2005, Ms. Jenkins advised this office that as a result of her appeal, the City disclosed the requested records but asserted that upon review of those records she determined that "the request ha[d] not been filled in its entirety." Further, she noted, the City Attorney's response contained certain "inaccuracies" relative to the records actually disclosed and those only partially disclosed. Amidst the copious correspondence transmitted to this office on March 29 was a second appeal arising from the City's alleged refusal to honor her March 2, and March 5, 2004, requests for "audit entries and/or letters from the firm of Kim, Duguid and Company" on the basis of their nonexistence. 2 Only upon review of the voluminous materials associated with the instant appeal did this office discover the second appeal. Because notification of the second appeal was not issued, and the City was afforded no opportunity to respond to the allegations contained in that appeal, we will not attempt to conclusively resolve these issues, but will provide citation to relevant legal authority that may assist in their final resolution. If, based on these authorities and subsequent remedial action by the City, these issues cannot be resolved, Ms. Jenkins may initiate a new appeal to this office.
In view of the growing volume of records associated with this appeal, and pursuant to KRS 61.880(2)(c), on April 7, 2005, the Attorney General requested that Ms. Jenkins clarify what records relating to her appeal had not been disclosed. She did so by letter dated April 11, 2005, a copy of which is attached to this appeal. Of the twenty-two categories of records she identified, only four relate to her original open records request, specifically:
. The Council minutes of the May 10, 2004 meeting;
. The transcript (including exhibits) of the May 10, 2004, meeting;
. All checks discussed during the May 10, 2004 meeting, including both the front and the back of each check;
. Documents that support the overdraft charges of $ 20,991.00 discussed during the May 10, 2004, meeting.
Our resolution of the issues on appeal will focus on these remaining disputed documents. We will, as noted, attempt to provide nonbinding guidance in the interest of resolving the remaining issues and avoiding additional open records appeals.
To begin, the rancorous circumstances giving rise to this appeal have no bearing on the outcome of this appeal. As we have observed on more than one occasion:
In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request."
93-ORD-15, p. 6; see also 96-ORD-185. We confine our review to the open records related issues raised and not to the underlying facts which prompted these records requests.
This being said, we turn to the procedural issue in this appeal. KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request, and affording the party timely access to the nonexempt records requested. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. 3
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Given the limited scope of Ms. Jenkins' May 12, 2004, request and the apparent ease in accessing the requested records, we find that a delay in production of more than ten months is wholly unreasonable and a clear violation of KRS 61.880(1). We are hopeful that the tickler system the City proposes to implement will resolve this issue.
The City advises that its earlier partial denial notwithstanding, upon receipt of notification of Ms. Jenkins' appeal it reconsidered its position and has now furnished her with all responsive documents thereby discharging its statutory obligations. The record on appeal does not entirely support this assertion. The City's original response was deficient insofar as it failed to state the statutory basis upon which three of her four requests were denied. The City's position that records relating to the May 10, 2004, meeting, including checks and documents supporting overdraft charges, are not "City open records" because the meeting was conducted by Attorney Fred Greene, and the records are apparently in his possession, is legally untenable. As Ms. Jenkins correctly notes, the courts and this office have recognized that "it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " City of Louisville v. Brian Cullinan, No. 1998-CA-001237 MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999), 4 cited in 04-ORD-123. As in the cited authorities, if the requested records in fact resided in Mr. Greene's custody at the time of Ms. Jenkins' request, Mr. Greene held the records at the instance of and as custodian on the City's behalf, and the City's position that it had no control over the records was without merit. We believe that 04-ORD-123, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue, in particular, the discussion at pages two through five of that decision.
Moreover, it is incumbent on the City to designate an official custodian of records for open records purposes to insure consistent, accurate, and timely processing of records requests. Pursuant to KRS 83A.085(3)(b) the city clerk is charged with "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." Pursuant to KRS 61.876(1), the City is statutorily required to adopt rules and regulations governing access to its records that include, inter alia, "the title and address of the official custodian of the public agency's records," and to display a copy of those rules and regulations in a prominent location accessible to the public. The City cannot override this statutory mandate by local ordinance. Regardless of whether the requested records were "in his actual personal custody and control, " it was the city clerk who was responsible for issuing a timely written response to Ms. Jenkins' request and affording her timely access to the requested records.
As noted, upon receipt of the notification of Ms. Jenkins' appeal, the City elected to produce the records identified in her request, asserting that "all the documents being sought," with the exception of the transcript of the May 10 meeting, were forwarded to Ms. Jenkins. Ms. Jenkins disputes this statement, noting in her April 11 letter that she did not receive minutes of the May 10 meeting, that she did not receive a copy of the transcript of the May 10 meeting notwithstanding its availability, and that she received the front side only of the requested checks and no documents supporting overdraft charges. With regard to disputes such as these, the Attorney General has recognized that we cannot:
adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided.
OAG 89-81, p. 4. Nevertheless, it appears that less than full disclosure was made, and that with regard to the back sides of the requested checks and documents supporting overdraft charges, no statute supporting nondisclosure was cited and no explanation as to the statute's applications given. KRS 61.880(1). Accordingly, we find that the City violated the Open Records Act in withholding these records and that unless it can articulate a specific basis for denying access to them, they must be disclosed. If the requested minutes of the May 10 meeting do not exist, the City is obligated to affirmatively so state. 5
With reference to the transcript of the May 10 meeting that was discovered only after Ms. Jenkins independently confirmed its existence, we make no finding of violation. However, if sufficient evidence exists that the city willfully concealed a public record, to wit, the proposal for the planned unit development, that evidence should be taken to the appropriate prosecutorial authorities. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. The Attorney General is not, however, authorized to render a decision on this question.
In attempting to resolve access issues relating to the remaining eighteen categories of records, we urge the City to bear in mind that "[a]mounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies . . . ." OAG 90-30, p. 3, as reflected in audits, general ledgers, bank statements, and financial statements. In addition, we remind the City that a public agency employee, including a former employee, is entitled to inspect and obtain copies of "any record including preliminary and other supporting documentation that relates to him" unless the documents "relate[e] to ongoing criminal or administrative investigations by an agency." KRS 61.878(3) as construed in 97-ORD-87 (enclosed). The record on appeal suggests that the only ongoing action in this matter involves Ms. Jenkins' suit against the City. Because this is not an ongoing investigation by the City relative to the former employee, there appears to be no basis for withholding records relating to the employee including attorneys' investigations, records of meetings at which the employee was discussed, correspondence relating to the employee, and records contained in and removed from the employee's personnel file. Finally, we note that the presence of litigation does not suspend an agency's obligations under the Open Records Act, and that it is incumbent on an agency to continue to discharge these obligations including the obligation to issue timely responses to records requests, to afford the requester timely access to the agency's records, to provide the requester with suitable facilities for inspection, and to permit inspection during regular business hours. OAG 89-79; OAG 82-169; 98-ORD-39 (enclosed). We are hopeful that any lingering open records disputes can be resolved by reference to the cited authorities. If not, Ms. Jenkins may initiate a new appeal to this office on issues relating to the remaining eighteen categories of requested 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.
Footnotes
Footnotes
1 Mr. Hedges also documents the time and expense associated with fulfilling Ms. Jenkins', and her husband's, open records requests in an apparent effort to build a case under KRS 61.872(6). Because the City did not deny Ms. Jenkins' May 12 request on this basis, we do not address the issue of unreasonable burden.
2 Ms. Jenkins noted that the same records were reviewed at a meeting conducted after her request was denied on the basis of the records' nonexistence.
3 If the public agency cannot permit inspection on or before the third business day because the requested records are "in active use, in storage or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay," and to state the "place, time, and earliest date on which the public record will be available for inspection. "
4 Although City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts are likely to adopt in a later published opinion that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent.
5 We address only the tangentially open meetings issues implicit in this appeal. If a quorum of the members of the City Council were present at the May 10 meeting, it was a public meeting for open meetings purposes since the subject of the meeting was public business, and, pursuant to KRS 61.835, the agency was statutorily required to record minutes.