Request By:
Jon L. Fleischaker
Dinsmore & Shohl, LLP
1400 PNC Plaza
500 West Jefferson Street
Louisville, KY 40202Robert P. Flaherty
Bullitt County Deputy Judge/Executive
P. O. Box 768
Sheperdsville, KY 40165Walter Sholar
Bullitt County Attorney
P. O. Box 6539
Sheperdsville, KY 40165-6539Scott Furkin
Chief Legal Counsel
Administrative Office of the Courts
100 Millcreek Park
Frankfort, KY 40601
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 Office of the Bullitt County Judge/Executive violated the Kentucky Open Records Act in partially denying the request submitted by reporter Brian Moore on behalf of The Courier-Journal for copies of specified public records concerning the Bullitt County Judicial Center project. To the extent that any responsive records exist which have not already been provided to The Courier-Journal in response to prior requests by The Courier , the Judge/Executive must provide The Courier with copies, regardless of whether those records are currently in the custody of the architect, the construction manager, or another private agency, as the nature and purpose of the document, not the location, determines its status as a public record. Although the record reflects that the Judge/Executive acted in good faith, to hold otherwise would contravene governing precedent.
In a letter directed to Kenneth Rigdon on February 11, 2005, Mr. Moore requested "access to and copies of" the following:
. Any and all claims for damages submitted by contractors who are working, or have worked, on the Bullitt County Judicial Center project.
. The termination of contract notice from Grayhawk, LLC related to this project.
. Any response from your office to the termination of contract notices from Grayhawk, River City, and Romac, Inc.
. Any response from your office to any of the contractors' damage claims filed between May 2004 and today.
Per the Judge Executive's response to an earlier request, Mr. Moore already had the following damage claims:
1. River City (dated May 10, 2004 and Nov. 4, 2004)
2. Bruewer (dated Aug. 12, 2004)
3. Delta Electric (dated Aug. 2, 2004)
4. Grayhawk LLC (dated May 20, 2004)
5. J C Industries (date[d] May 5, 2004)
In closing, Mr. Moore asked the Judge/Executive to include the "proper record custodian's name and address" in the event that his office did not maintain the requested records.
On February 22, 2005, Robert P. Flaherty, Deputy Judge/Executive, responded on behalf of the Office. It is Mr. Flaherty's understanding, "pursuant to the contract documents, that all claims are filed directly with the Architect. " In addition, "any response to filed claims would come from the Architect. " Having provided Mr. Moore with the Architect's contact information (Bill Pickering of CMW, Inc.), Mr. Flaherty further advised Mr. Moore that copies of all claims "in the control or custody" of his office had previously been forwarded to Mr. Moore, "and no others have been received." Attached to Mr. Flaherty's response was a copy of the requested termination notice from Grayhawk. According to Mr. Flaherty, the Judge/Executive's Office "has not issued any response to the termination of contract notices due to continuing legal issues and impending and potential litigation." In closing, Mr. Flaherty reiterated that his office has "provided everything in its control or custody. "
By letter received in this office on June 24, 2005, attorney Jon L. Fleischaker initiated this appeal on behalf of his client, The Courier . As summarized by Mr. Fleischaker, the events which culminated in this appeal are as follows:
. . . Specifically, Judge Flaherty responded that the records in the control or custody of Bullitt County have been disclosed, and directed Mr. Moore to contact the architect of the Bullitt County Judicial Center Project, Bill Pickering of CMW, Inc. because of a contract between the Fiscal Court and the architects permitting damage claims to be submitted directly to the architects instead of the Fiscal Court.
Mr. Moore requested the same documents from Bill Pickering of CMW, Inc. On February 9, 2005, Mr. Pickering denied the request on the basis that CMW, Inc. is not a public agency and directed him to the Bullitt County Fiscal Court, "the public agency that has control over these records." (See letter of February 9, 2005, attached as Exhibit 3). In addition, Mr. Moore also sent open records requests to David Codell of Codell Construction Company and Robert Brooks. Both replied that they were private individuals/companies and not subject to the Open Records Act. Codell Construction specifically replied that Mr. Moore "should be able to obtain the documents [he was] requesting through the Bullitt County Fiscal Court." (See fax of February 9, 2005, attached as Exhibit 4).
In a letter dated May 10, 2005, counsel for The Courier-Journal requested that Judge Rigdon reconsider the denial on the basis that "[t]he Bullitt County Judicial Center Project is a public project funded by public funds and monitored by a public agency. " (See letter of May 10, 2005, attached as Exhibit 5). Moreoever, "[d]isclosure of the requested public records cannot be avoided by forwarding the records to individuals or entities claiming not to be subject to the [O]pen [R]ecords [L]aw." On May 11, 2005, Judge Rigdon responded, stating that the records are filed with the Architect on this project. (See letter of May 11, 2005, attached as Exhibit 6). He further stated that "Fiscal Court is usually copied on these records . . ., but this office could not state unequivocally that it was copied on all documents and referred Mr. Moore to the Architect and Construction Manager . . ." Id.
Based upon the foregoing, The Courier requests a review of the Fiscal Court's denial "and a decision by the Attorney General that the Fiscal Court cannot avoid its obligation to disclose the public records by simply stating that it does not possess the records and instead directing Mr. Moore to individuals or entities claiming not to be subject to the Open Records Act. "
In support of The Courier's position, Mr. Fleischaker correctly observes that two legal thresholds must be met to access public records:
1. the custodian of the records must be a 'public agency' as defined in KRS 61.870(1), and
2. the documents to be inspected must be 'public records' as defined in subsection (2) of the same statute.
OAG 82-27. According to Mr. Fleischaker, both thresholds are met here. First, "the Fiscal Court is, or should be deemed the custodian of the damage claims at issue." Citing 95-ORD-126, 1 Mr. Fleischaker correctly argues that the Fiscal Court cannot "avoid its legal obligations by signing a contract with entities who may not be public agencies containing terms allowing it to avoid the retention of public records. " In The Courier's view, this "is exactly what occurred here." Because the Fiscal Court directed Mr. Moore to the architect and construction manager for the remaining damage claims, but these individuals, in turn, denied Mr. Moore's requests, directing him to the Fiscal Court, "the end result is that Mr. Moore, and the public, have no access to the public records at issue."
Second, The Courier contends that the damage claims are properly characterized as public records within the meaning of KRS 61.870(2). According to The Courier , there is "no question that the damage claims submitted by contractors on the Bullitt County Judicial Center Project, a publicly financed project," are records in which the public has a legitimate interest." On a related note, Mr. Fleischaker correctly asserts that the Attorney General has long recognized the public character "of expenditure of public funds, " citing OAG 90-30, 92-ORD-1274, 95-ORD-18, and 97-ORD-85 as authority. In closing, Mr. Fleischaker emphasizes that many of the damage claims are in the possession of the Fiscal Court and have been disclosed, as observed by Judge Rigdon, and any other records "which have not been disclosed will or have been used by the Fiscal Court to evaluate and/or oversee the project."
By letter dated June 29, 2005, Mr. Flaherty supplemented the position of the Bullitt County Fiscal Court and the Office of the Bullitt County Judge/Executive. According to Mr. Flaherty, "all requested records in its possession, control or custody have been forwarded to the requesting entity. " Bullitt County Fiscal Court has "neither denied this open records request nor failed to forward all requested records." Arguing that no denial has occurred, Mr. Flaherty clarifies that the Fiscal Court has "forwarded all requested records in its possession" and "simply referred Mr. Moore of [ The Courier ] to other sources where he may, or may not, have been able to find additional records helpful to his efforts." In Mr. Flaherty's view, the Fiscal Court's attempts to work cooperatively are now being met with unwarranted accusations from counsel for [ The Courier ]." As explained by Mr. Flaherty:
Mr. Moore submitted two (2) prior Open Records Requests dated November 16, 2004 and November 23, 2004 requesting the same information. His Request dated February 11, 2005 even references the fact that he had already received documents and information as a result of his prior requests. Fiscal Court's Response dated February 22, 2005 indicated that all documents and information had already been previously forwarded and nothing additional had been received since the prior two requests. In short, Fiscal Court is unable to forward what it does not have or what may not even exist. If Mr. Moore or others at [ The Courier ] are aware of a specific record they believe exists that Fiscal Court should have but does not, then this office would be pleased to investigate the matter and try and assist in locating said document. However, as of this date, no such request has been made.
In addition, counsel for The Courier refers to Open Records Requests filed with and Responses from CMW, Inc., Codell Construction, and Robert Brooks (counsel for Fiscal Court). This office was not copied on or aware of these requests and responses. The first knowledge of their existence came in correspondence to this office from Mr. Fleischaker dated May 10, 2005.
Acknowledging that Fiscal Court/Office of the Judge/Executive is a public agency and that the documents forwarded to Mr. Moore are public records, Mr. Flaherty asserts that "it cannot admit that documents it either does not possess or [that] do not exist are public records since Fiscal Court does not possess, and has never possessed, those documents and does not even have any knowledge that some unnamed documents even exist." Citing the definition of public record codified at KRS 61.870(2), Mr. Flaherty further contends that the second legal threshold has not been met insofar as the records are not public if the Fiscal Court has not "prepared, owned, used, possessed or retained" the records. To the "best of its knowledge," the Fiscal Court has forwarded all responsive records in its custody or control to The Courier . With respect to the contracts utilized on the Bullitt County Judicial Center project, Mr. Flaherty advises this office that the contracts are "standard form AIA contracts utilized on practically every public project, state and local, in the Commonwealth of Kentucky[,]" the provisions of which have been "widely used, accepted and approved for decades."
In addition, the Fiscal Court is uncertain where the term "damage claims" originated, since the term first appeared on appeal. To clarify, the records at issue "are requests by contractors for a professional opinion by the Architect on various issues on the Project. The Architect responds to these claims, and if a contractor is not satisfied, then the contractor may proceed with an Arbitration action." Agreeing with the assertion that "the public is entitled to inspect records documenting exact amounts paid from public monies[,]" the Fiscal Court/Judge/Executive denies that the "claims" requested involve the payment of public monies. To the contrary, all funds related to this project "are processed and disbursed through Payment Applications from contractors and Pay Requisitions approved in open sessions of Fiscal Court." All of the aforementioned documents are "in the Fiscal Court records and are readily available for inspection by anyone at the Office of the Bullitt County Clerk." In Mr. Flaherty's view, the right of the public to inspect records reflecting the expenditure of public funds is clearly being upheld as the Mr. Moore's request does not involve such records.
Contrary to The Courier's assertion, if the Fiscal Court "does not possess and does not have any knowledge of some unknown record, then certainly Fiscal Court has not and will not be utilizing those records for any evaluation or oversight." If any such records are presented to the Fiscal Court/Judge/Executive in the future, "it is possible those records may be utilized, and Fiscal Court would not hesitate to provide them" pursuant to an Open Records request barring an application exception. However, the Fiscal Court/Judge/Executive "is not required by law, and furthermore, does not have the ability to produce records that it does not possess and has never possessed. " In closing, Mr. Flaherty reiterates that the Fiscal Court/Judge/Executive "continues to be willing to work with [ The Courier ] if it has information regarding documents it believes exist, but Fiscal Court does not possess." Based upon the foregoing, the Fiscal Court/Judge Executive believes this appeal is without merit and should be dismissed.
To begin, the somewhat contentious nature of this appeal has no bearing on the outcome. As consistently recognized by this office:
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 05-ORD-099; 96-ORD-185. To summarize, our review is confined to those issues arising under the Open Records Act. 2
On appeal, the Fiscal Court/Judge/Executive reiterates that it does not possess nor can it confirm the existence of any additional records which are responsive to Mr. Moore's request. As long recognized by this office, "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. See also OAG 91-203; OAG 91-112; 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. It is the function of this office to review the course of action taken by a public agency, not to find the documents that a party is seeking to inspect. 03-ORD-205, p. 3, citing 99-ORD-98. Although an agency generally discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist and providing a reasonable explanation for the nonexistence of responsive records, the apparent uncertainty as to whether any additional responsive records exist precludes this office from ending the analysis there in this case.
In the event that such records do exist, the Fiscal Court/Judge/Executive is obligated to produce those records for inspection pursuant to 00-ORD-207, a copy of which is attached hereto and incorporated by reference, and the authorities upon which that decision is premised. While there may be rare occasions when records identified in a request do not qualify as public records by virtue of a private entity having custody, as in 99-ORD-202, the record on appeal does not contain sufficient evidence for this office to make such a determination. However, the fact that the Fiscal Court/Judge/Executive does not currently have actual possession is not an adequate basis for denying access. 05-ORD-015; 00-ORD-207. Assuming the "damage claims" at issue exist, and are being held "at the instance of and as custodian on the [Judge/Executive's] behalf," the Judge/Executive must disclose those records regardless of where the records are being maintained at present. By the same token, the Judge/Executive obviously cannot produce for inspection or copying records which do not exist; having affirmatively indicated as much to Mr. Moore in writing, nothing more would be required of the Judge/Executive. 3 Hopefully, any remaining dispute can be resolved through "patient consultation and cooperation between the parties."
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 More specifically, The Courier relies upon the following excerpt from 95-ORD-126:
Kentucky's Open Records Law applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act.
2 With respect to factual disputes between a requester and a public agency, the Attorney General has likewise repeatedly recognized:
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 [Mr. Moore] 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.
03-ORD-061, p. 2, citing OAG 89-81, p. 3; See also 03-ORD-204.
3 As to those records which the Judge/Executive has already provided to Mr. Moore in response to prior requests, any related issues are now moot. 40 KAR 1:030, Section 6.