Request By:
Valerie McQueen, Publisher
The River Cities Beacon
509 Sixth Avenue
Dayton, KY 41071Donna Leger
Clerk/Treasurer
514 Sixth Avenue
Dayton, KY 41074John C. Fischer
City Attorney
City of Dayton
P. O. Box One
Dayton, KY 41074
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 City of Dayton violated the Kentucky Open Records Act in denying the requests submitted by The River Cities Beacon publisher Valerie McQueen on May 24, 2005, for copies of a contract and specified letters. More specifically, Ms. McQueen requested to inspect and copy the "contract by and between the City of Dayton and The Dayton Dispatch ," the "letter written by Dayton [C]ity [A]ttorney, John C. Fischer, and sent to local businesses in Dayton & Bellevue Kentucky and advertisers of The River Cities Beacon advising them not to advertise in our newspaper, " and the letter directed to this office by the City in September or October 2004 in response to the complaint filed with the Attorney General. Because the City has notified Ms. McQueen in writing that no records exist which are responsive to the former request aside from the City Council meeting minutes already provided, and cannot provide for inspection or copying a record which does not exist, nothing more is required of the City relative to this request. Having reviewed copies of the letters directed to local businesses by City Attorney John C. Fischer, this office finds that Mr. Fischer sent the correspondence as a private citizen rather than in his official capacity and, therefore, the records do not fall within the definition of "Public record" codified at KRS 61.870(2). Accordingly, the City Attorney did not violate the Act in denying Ms. McQueen's request as to those letters. With respect to the final request, the City complied with the Act by providing Ms. McQueen with a copy of the letter in a timely fashion; any issues relative to that record are therefore moot.
By letter directed to Donna Leger, Clerk/Treasurer, on May 24, 2005, Ms. McQueen requested a copy of the specified contract, the existence of which the City had previously denied, "yet in answer to a complaint to the Kentucky Attorney General, the city attorney admitted that in fact, the contract did exist." In a separate letter of the same date, Ms. McQueen requested the letter directed to local businesses by Mr. Fischer. More specifically, Ms. McQueen indicated that the letter "was sent to Schneider['s] Ice Cream Shop, The Coffee House, Gold Star Chili, Provident Bank, [etc.]" In addition, Ms. McQueen requested the letter of September/October 2004 "written about by the city in an answer to a complaint to the [Attorney General] - the letter was spok[en] about in the October meeting of the Anti- Beacon (sic) attended by Mayor Rankle, the city attorney, the vice mayor and several city commissioners as well as political members of the neighborhoods - the letter was mentioned by a city councilwoman, in her own writing to the Beacon in September 2004."
In a timely written response, Ms. Leger advised Ms. McQueen that a copy of the minutes from the City Council meeting held on July 2, 1996, at which the City Council agreed to pay The Community News $ 2,000 per year, were attached in response to her first request. Also attached was a copy of the letter written on behalf of the City in response to the complaint filed with this office in partial satisfaction of her second request. With respect to the other letter(s) requested, Ms. Leger advised Ms. McQueen that she has "no record of any letter as described by your request sent by the City Attorney." Having inquired as to whether any such letter exists, Ms. Leger advised Ms. McQueen that Mr. Fischer had indicated "that any such letter he wrote was personal correspondence, did not purport to be from the city, was not a part of city business, is protected by constitutional rights, and is not a public record. " Based upon the evidence of record, this office must agree with Mr. Fischer's assertion.
In an undated letter received by this office on June 13, 2005, Ms. McQueen initiated this appeal from the City's partial denials of her requests. With respect to the meeting minutes provided in lieu of the contract requested, Ms. McQueen contends that the City provided her with "a reference to a [C]ity [C]ouncil meeting in 1996 stating that they were going to give money to ANOTHER paper with a DIFFERENT owner." Although the Dayton Dispatch News is less than four years old, "this record was [created] in 1996." In her view, the response of the City to her request is "totally inconsistent" with the response of the City to the Attorney General.
In addressing the letter still at issue, Ms. McQueen contends there "was a meeting held that was attended by the Mayor, the Vice Mayor, [two Council] members, the city attorney and police chief to basically 'complain about [ The Beacon ],' at which the letter was discussed, a City Council member referenced the letter in correspondence to The Beacon , and the City Attorney conceded in his response "that he did in fact write the letter." In support of her position that Mr. Fischer was acting in his official capacity, Ms. McQueen relies upon the following:
Dayton has less than 2,400 homes in it. Everyone knows the City Attorney and he was even introduced to us as "the city attorney." He is "pointed out" as the city attorney. He attends functions as the city attorney. . . . He IS, in all forms, the city attorney. Everyone who told us about the letter stated that it was from "The City Attorney."
Although Ms. McQueen's point is well-taken as to the practical effect of such a letter(s), a review of the letters confirms the validity of Mr. Fischer's characterization. 1
Upon receiving notification of Ms. McQueen's appeal from this office, Mr. Fischer responded on behalf of the City. Having reviewed the prior decision of this office involving these parties, 04-ORD-216 (identified by Log Number 200400402), Mr. Fischer did not find (nor did this office) "any information regarding appellant requesting a contract nor complaining about a denial" by the City that such a contract existed. Accepting "that something of the sort occurred," Mr. Fischer believes the confusion may be attributable to "different understandings of what a contract is." 2 Emphasizing that Ms. McQueen has acknowledged receiving a copy of the minutes documenting the disbursement to the Community News , Mr. Fischer indicates that the minutes reflect "a recommendation that the [C]ity pay $ 2,000 yearly for continuation of publication of a quarterly insert in the Community News as, otherwise, the newspaper would go under, the [C]ity's school board had already agreed, and there was no other paper to take its place for dissemination of community information." It is the opinion of the City that the motion which was carried approving a total of $ 2,000 to the Community News "constitutes a contract evidenced by a writing (the minutes) approved by the [C]ity [C]ouncil speaking through its minutes to which both parties assented by their actions."
As to the assertion that the current publication is a different paper with a different owner, the City was notified in 2001 "that the person identified in the minutes as the owner, Mr. Reiber, had sold his newspaper to a new owner." In the City's view, the City "maintains a contract that continues with the parties' successors and assigns, and it is approved by [C]ouncil each year when the budget is approved authorizing such a disbursement and thus the contract from the minutes continues in effect until withdrawn by either party." According to Mr. Fischer, the City has not violated the Act under either interpretation as the City provided Ms. McQueen with the only contract in existence (the minutes) , assuming the City has a contract with the successor, and, if not, "there is no public record to provide to appellant."
Turning to the allegation that the letters at issue are official correspondence of the City, Mr. Fischer argues that Ms. McQueen is "hoping that the Attorney General will expand his decision in [04-ORD-216,]" that a letter read by the Mayor into the minutes of a City Council meeting is a public record, to 'any document mentioned by any city official at any type of meeting is a public record. ' In Mr. Fischer's view, the Attorney General "should, and will, decline to make such an expansion." At no time does Ms. McQueen allege that the letter was authorized by the City, "although she hopes the Attorney General will be misled into believing it by her innuendos." Citing OAG 79-496, the City relies upon the holding by the Attorney General that correspondence from an alderman to the Attorney General, which was not authorized by the Board of Alderman (City), is not a public record as it is correspondence from a private individual. If every document "prepared, used or retained by a public official were to become a public record open for public inspection, no reasonable person would seek to become a public official. " Such an interpretation would likely render the Open Records Act unconstitutional in Mr. Fischer's view. 3 In the alternative, Mr. Fischer contends that "private correspondence of a contracted city attorney" do not have to be disclosed under KRS 61.878(1)(i) "because it is correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency, " 4 citing OAG 89-86 as authority. 5
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 91-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the City cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the rights to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 6 In addressing the obligations of a public agency when denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has consistently held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that the record does not exist, as the City ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. In other words, this office is not "empowered to go beyond the written record to determine whether [City] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statutory mandate.
While the Attorney General has traditionally taken the position that a public agency does not violate the Act by denying a request for nonexistent records, this office has applied a higher standard of review to denials based upon the nonexistence of requested records since 1994. In July 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. 7 To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. 8
In construing the language of KRS 61.8715 , the Attorney General has observed that the "basic policy" of the Act, as recognized by Kentucky courts and codified at KRS 61.871, "is to afford free and open examination of public records. . . ." 95-ORD-48, p. 4, citing
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992) and
Frankfort Publishing Company, Inc. v. Kentucky State University, Ky., 834 S.W.2d 688 (1992). To this end, public agencies must adopt rules and regulations which conform to the provisions of KRS 61.870 to 61.884 in accordance with KRS 61.876(1). 9 Of particular relevance here, KRS 171.640 mandates that the head of state and local agencies shall:
cause to be made and preserved 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. Such documentation shall be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department under the provisions of KRS 171.410 to 171.740.
However, the Attorney General has expressly held that the failure to create a record does not constitute a violation of the Act as previously indicated. 95-ORD-48, p. 4.
On appeal, the City clarifies that no responsive contract exists in the conventional sense as the City has historically documented such action only in the minutes of City Council meetings. 10 While this practice of not reducing to writing transactions involving the expenditure of city funds seems questionable, especially given the amount, the City obviously cannot produce for inspection or copying a record which does not exist; nor is this office empowered to order an agency to create records, or declare its failure to create records improper. 95-ORD-48, p. 2. 11
As noted, the Act assumes that records will be created in accordance with guidelines established by the Department for Libraries and Archives pursuant to Chapter 171. Because our research revealed no additional authority mandating the creation of a contract under the circumstances presented, nor was the Department aware of any, a referral to the Department is deemed unnecessary. However, the City should be mindful of the legislative mandate to create and preserve "adequate and proper documentation . . . designed to furnish information necessary to protect the legal and financial rights of . . . persons directly affected by the agency's activities." KRS 171.640. That being said, the question becomes whether the City properly withheld the letters at issue.
At issue in OAG 79-496 was whether Alderman David Banks of Louisville had properly denied a request from The Courier-Journal to inspect any letter or correspondence between Mr. Banks and U.S. Attorney General Griffin Bell regarding the Louisville Mayor and Police Captain. Id., p. 1. In holding that the requested correspondence was not a "public record" within the meaning of KRS 61.870(2), 12 the Attorney General observed that an alderman is a "local officer," but not an officer who may act independently of the Board of Alderman. Id. Quoting from
Citizens National Bank's Trustee v. Loyall, 262 Ky. 39, 88 S.W.2d 952, 953 (1936), this office also noted that a municipality can "'speak only by its records, and is not bound by any promise or attempted commitment by the members of its counsel of board of trustees acting individually or collectively, except when in session as such body, and its journal speaks of such action.'" Id., pp. 1-2. Because the records involved were letters between Alderman Banks and Attorney General Bell, with no indication "that the correspondence was authorized by a majority of the [Board] while in session as such body and by action recorded in its minutes, " the Attorney General concluded that Alderman Banks had undertaken the correspondence as an individual rather than on behalf of the governing body. Id., p. 2. In addition, the subject matter was restricted to the Mayor and Captain rather than "functions, activities, programs or operations funded by state or local authority. " Id. A review of the letters at issue confirms that the same can be said here.
Although the record does not address the scope of Mr. Fischer's authority, the correspondence requested is not on official letterhead, nor does Mr. Fischer identify himself by title, neither of which is determinative standing alone; however, the letters are otherwise devoid of indicia that Mr. Fischer was acting on behalf of the City in writing the letters. To the contrary, the content can generally be described as an individual citizen explaining why he no longer patronizes the business to which the particular letter was directed (two were provided for review). When viewed in conjunction, the aforementioned factors lead this office to conclude that the letters were not "prepared, owned, used," etc., by a "public agency" and are therefore properly characterized as personal correspondence rather than public records within the scope of KRS 61.870(2). Accordingly, the City did not violate the Act in withholding the letters at issue.
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 Pursuant to KRS 61.880(2)(c), which authorizes the Attorney General to "request additional documentation from the agency for substantiation," the undersigned requested that Mr. Fischer provide this office with a copy of the letter at issue for in camera inspection in order to resolve the issue presented.
2 In this vein, Mr. Fischer argues:
It is our opinion that a contract is an agreement, a meeting of the mind[s,] and can be oral or written. Skaggs v. Wood Mosaic Corp., Ky., 428 S.W.2d 617 (1968). Written evidence of a contract can be an unsigned document or a document signed by only one party when actions of the parties demonstrate assent to the agreement. Landham v. Lewis Galoob Toys, Inc., [227 F.3d 619 (6th Cir. 2000)] and Cowden [Manufacturing Co., Inc. v. Systems Equipment Lessors, Inc., Ky. App., 608 S.W.2d 58] (1980). Of course, a contract with a municipality must be approved by its city council which speaks through its minutes.
3 In the alternative, Mr. Fischer contends that "the personal letters of the City Attorney are not public records because they are not held by a public official. " According to Mr. Fischer, the City "abolished the office of City Attorney in the 1960s and since then, the attorney has been a contracting professional." Although this argument is not persuasive in our view as to records generated by a city attorney in his official capacity, further elaboration is unnecessary given our resolution of the former argument.
4 To begin, this exception does not extend to "all writings from individuals to a government agency . . . ." OAG 90-142, p. 6 (emphasis added). Point being, the public agency is normally the recipient. Insofar as KRS 61.878(1)(i) extends protection to "correspondence with private individuals," this exception is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. See 04-ORD-125, pp. 7-10, for the analysis employed by this office in determining whether a record falls within the parameters of KRS 61.878(1)(i). If Mr. Fischer was not acting in his official capacity, as appears to be the case, then the letters at issue are simply correspondence between private citizens, as opposed to correspondence between a public official and a private individual. If Mr. Fischer had acted in his official capacity, the records would not be exempt in our view.
5 In reply, Ms. McQueen basically reiterates her previous arguments and disputes each point raised by Mr. Fischer, asking the Attorney General to "look through the legal 'smokescreen' and honor" her request.
In reluctantly complying with our request pursuant to KRS 61.880(2)(c), Mr. Fischer raises various constitutional arguments or "objections," which are outside the scope of our review in the context of an Open Records appeal. As the Attorney General has observed:
[T]he General Assembly has twice vested [KRS 61.880(2)(c) and 40 KAR 1:030 (3)] the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. Without this authority, the Attorney General's ability to render a reasoned open records decision would be severely impaired. The Attorney General recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes a waiver as to any legitimate privilege [or exemption] asserted. Because he does not have authority to compel disclosure of the disputed records, his only recourse is to find against the public agency in the hope that the agency will more conscientiously discharge its duties under the Open Records Act in the future.
04-ORD-031, p. 6, citing 96-ORD-106, p. 5.
In response to Mr. Fischer's "Objection," Ms. McQueen provided this office with a videotape recording of a Channel 5 newscast concerning the letters at issue during which a local business owner who received a letter is interviewed. Although his comments validate the concerns expressed by Ms. McQueen, the videotape does not alter the analysis employed by this office in determining whether the letter(s) is subject to inspection.
6 As consistently recognized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 89-32; OAG 83-111; OAG 80-308; OAG 79-547; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding 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, p. 2. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
7 By enacting KRS 61.8715, the General Assembly "recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act [codified at KRS 171.410 to 171.740]." 94-ORD-121, p. 9. Subverting the intent of the Archives and Records Act therefore subverts the intent of the Open Records Act. Id. If a public agency such as the City fails to discharge its statutorily mandated duty establish effective controls over "the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law," the agency subverts the intent of the Open Records Act by impeding full access to public records. Id.; 98-ORD-45.
8 In order to satisfy its burden of proof, an agency must now offer a reasonable explanation for the nonexistence of the requested records at a minimum as the City does on appeal. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 03-ORD-059 (radio run tapes were erased and reused in a manner consistent with the applicable records retention schedule and were therefore not available for review); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 98-ORD-47 (audit not in University's custody because it was never reduced to writing); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct the investigation).
9 . . ."to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection [.]" KRS 61.876(1).
10 Because the City has provided Ms. McQueen with copies of the responsive meeting minutes, as well as the letter directed to the Attorney General, any issues relative to those records are now moot. 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. Accordingly, this office must decline to issue a decision on the merits as to those records.
11 "It is abundantly clear that the shared intent contemplated by the [General Assembly] in enacting KRS 61.8715 is confined to records management and maintenance. There is no reference in the statute to records creation." 95-ORD-48, p. 2.
12 KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority [.]