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 Newport violated the Open Records Act in the disposition of Kentucky Enquirer reporter Michael Rutledge's September 19 and September 22, 2005, requests for various records relating to Newport's redevelopment of the Cote Brilliante neighborhood. For the reasons that follow, we find that the City's disposition of The Kentucky Enquirer's requests was only partially consistent with the requirements of the Act.
By fax and email transmitted on September 19, 2005, at approximately 6:00 p.m., to Newport City Clerk Paula Williamson, Mr. Rutledge requested access to:
[1] All travel records, including invoices and payments, for trips taken by city employees in connection with economic development projects, including the ones in Cote Brilliante, since Jan. 1, 2001.
[2] All literature or documents, including maps, renderings or other printed materials that were given to people during those trips concerning the Cote Brilliante Redevelopment Area.
[3] The pre-approved tenant list described [sic] Article 4(A) of the Oct. 22, 2001 Development Agreement between the City of Newport and Neyer Properties Inc. 1
[4] All e-mails to and from McBride Dale Clarion and Cors & Bassett since Jan. 1, 2005, in connection with the work that was authorized under Commissioners' Order No. R-2001-198 for planning services involving proposed redevelopment districts in Newport.
[5] All e-mails sent within city government, as well as all reports that were presented to city commissioners in connection with this contract and any other contract related to redevelopment of the areas covered by this contract since Jan. 1, 2005.
[6] Copies of the plan(s) printed under Invoice 16 for Newport Urban Redevelopment II, covering the period May 31, 2004, to July 2, 2004. Also, documentation of any spending toward that contract since Jan. 1, 2004.
In an email transmission dated September 22, 2005, Ms. Williamson responded to Mr. Rutledge's requests by attaching a document, also dated September 22, 2005, in which she denied each of those requests. Ms. Williamson characterized requests 1, 2, 4, and 5 2 as "overbroad and burdensome" within the meaning of KRS 61.872(6), request 3 as a draft document containing preliminary recommendations within the meaning of KRS 61.878(1)(i) and (j), and request 6 as attorney work product and privileged attorney client communications within the meaning of KRS 61.878(1)(l), 3 noting that the requested records also qualified for exclusion from public inspection under KRS 61.878(1)(i), "as containing preliminary drafts not yet reviewed and approved by the Board of Commissioners," and under KRS 61.878(1)(j), "as containing preliminary recommendations."
With reference to Mr. Rutledge's requests for travel records, the city explained that "'trips' could include a trip to Covington, Kentucky as easily as a trip thousands of miles away," and that the term "'economic development projects' has a wide connotation which includes potential as well as real projects . . . ." Continuing, the city explained that the term "city employee" "could include outside training for staff accountant whose work involves economic development projects." It was, therefore, the city's position that Mr. Rutledge's request for travel records implicated "thousands of documents which would be too burdensome to initially identify . . ., [and] if they were identifiable too burdensome to assemble for inspection, and finally would be questionable as to accuracy." The city took a similar position in explaining its denial of Mr. Rutledge's request for "literature, including maps, renderings or other printed materials that were given to people during the trips concerning the Cote Brilliante Redevelopment Area."
On September 22, 2005, Mr. Rutledge transmitted an amended request to Ms. Williamson, by fax and by email, at approximately 6:00 p.m. The records to which he requested access were identified as follows:
[1] All travel records, including invoices and payments, for trips taken by city employees in connection with the Cote Brilliante economic development project, since Jan. 1, 2005 (not including trips within Northern Kentucky or Greater Cincinnati).
[2] All literature or documents, including maps, renderings or other printed materials that were given to people during those trips concerning the Cote Brilliante Redevelopment Area.
[3] All written requests for information from the city administration that were submitted by city commissioners, or on their behalf, since March 1, 2005, that were granted or denied.
[4] All denials of city commissioners' requests for information.
[5] Any job performance reviews Phil Ciafardini's [sic] personnel file, including all written commendations or reprimands and all final actions taken concerning the employee. Also, documents detailing salary and compensation information and any employment contracts for Phil Ciafardini. Also, any public records requests submitted concerning Phil Ciafardini since June 1, 2005.
By letter dated September 26, 2005, the city notified Mr. Rutledge that it would honor his request "for the supporting documentation for Mr. Ciafardini's salary and employment as city manager, " but denied his remaining requests. Acknowledging that he had "reduced the number of possible 'trips' by geographical limitation," the city nevertheless maintained that "the lack of definition and specificity still leaves the possibilities too numerous."
The city restated its earlier position relative to nondisclosure of "literature or documents, including maps, renderings or other printed materials, that were given to people during those trips concerning the Cote Brilliante Redevelopment Area," and denied requests 3 and 4, relating to written requests for records of the city submitted by or for the city commissioners and the city's responses thereto, asserting that no responsive documents exist. Finally, and with reference to Mr. Rutledge's request for access to "job performance reviews Phil Ciafardini's personnel file [sic], 4 including all written commendations or reprimands and all final actions taken concerning the employee . . . [as well as] any public records requests . . . concerning Phil Ciafardini since June 1, 2005," the city advised:
Your request for access to the personnel file of Mr. Ciafardini is denied under KRS 61.878(1)(a). There are no public records requests concerning Mr. Ciafardini.
Dissatisfied with the city's disposition of Mr. Rutledge's requests, The Kentucky Enquirer initiated this open records appeal through its attorney, Paul Alley.
On appeal, the Kentucky Enquirer questions the timeliness of the city's responses, the propriety of the city's invocation of KRS 61.872(6) and its characterization of the requests for travel records as overbroad and burdensome, especially in light of Mr. Rutledge's attempts to narrow the scope of those requests. The Enquirer notes the logical inconsistency of the city's position that "it cannot determine what trips were taken by city employees in conjunction with or to promote the Cote Brilliante project" and its assertion that the number of documents implicated by the request for literature and documents disseminated during the trips was so great as to make production overburdensome. In addition, The Enquirer questions the city's reliance on KRS 61.878(1)(i) and (j) in support of its denial of Mr. Rutledge's request for "plan[s] printed under Invoice 16 for Newport Urban Redevelopment II . . . [from] May 31, 2004, to July 2, 2004 . . . . [as well as] documentation of any spending toward the contract since Jan. 1, 2004," noting that "[t]here is nothing preliminary about documentation reflecting payments to McBride Dale Clarion" and nothing in those records that could be characterized as "work product. " The Enquirer also challenges the city's denial of Mr. Rutledge's request for job performance reviews, commendations, and reprimands relating to Mr. Ciafardini, as well as any open records requests the city has received concerning Mr. Ciafardini. Finally, The Enquirer objects to the city's assertion that "emails to and from McBride Dale Clarion since January 1, 2005 in connection with the work authorized under Commissioner's Order No. R-20010198 . . .," along with emails relating to that work exchanged by city employees, are excluded from public inspection by operation of KRS 61.878(1)(i) and (j) as well as KRS 61.878(1)(l), incorporating the attorney client privilege (KRE 503) and work product doctrine (CR 26.02). The Enquirer notes that the contract retaining McBride Dale Clarion excludes the rendition of legal advice and services at Section 6 5 and that there is no "blanket exemptions for the emails under the Open Records Act . . . ."
In supplemental correspondence directed to this office following commencement of The Kentucky Enquirer's appeal, Newport City Solicitor Michael C. Schulkens contested The Enquirer's assertion that either of the city's responses were untimely and reaffirmed the city's earlier position. With reference to the overbreadth of Mr. Rutledge's requests, Mr. Schulkens explained.
The City could have taken a flippant, vague or intentionally evasive position on this phrase as alleged in the appeal by responding that no trips were taken in or to Cote Brilliante. The City instead treated the phrase as inclusive and responded accordingly. The language of the responses speak for themselves. The City in the original response was particular in explaining the broadness of the request, the burden to the City and the resulting questionable completeness and accuracy. Such explanation should have been a guide to refining the key word and phrases for the second request. Instead only the word "trip" was limited in its scope. If the requests were meant for the proposed redevelopment areas as the appeal now suggests, it would have made great sense to so limit the second request and limit the phrase "city employee" to identifiable positions.
By the same token, Mr. Schulkens advised, "[i]f the 'trip' was not identifiable certainly . . . . '[all literature or documents . . .' for those trips would not be identifiable." Mr. Schulkens defended the city's position relative to the nondisclosure of the requested email, noting that multiple litigation has arisen from Newport's use of eminent domain for economic development, and in particular, the Cote Brilliante project. It was his position that "[w]ork product, without question, applies." In addition, he defended the city's denial of Mr. Rutledge's request for the "development report/spending records" on the basis of KRS 61.878(1)(i), asserting that the records withheld were "preliminary drafts that have never been finalized or submitted to the city's Board of Commissioners even as of this date." Finally, Mr. Schulkens advised that records reflecting Mr. Ciafardini's salary were "made available to Mr. Rutledge," but acknowledged that his "personnel file was not."
Unable to resolve some of the issues which The Enquirer's appeal raises on the limited record on appeal, on November 21, 2005, this office requested that the city provide us with copies of the disputed emails for in camera inspection pursuant to KRS 61.880(2)(c) . 6 We acknowledged our statutory obligation not to disclose the disputed emails, but received no response to our request. Here, as in 05-ORD-185, a copy of which is attached hereto and incorporated by reference, we are constrained to hold that the City of Newport failed to meet its burden of proof in sustaining its denial of those portions of Mr. Rutledge's requests to which our KRS 61.880(2)(c) inquiry pertained. We further find that the city's reliance on KRS 61.878(1)(a) to support nondisclosure of any evaluations/performance reviews, commendations, or reprimands issued to Mr. Ciafardini was misplaced. We reject the city's position that Mr. Rutledge's requests for travel records for trips taken by city employees in connection with economic development projects, including the Cote Brilliante project, since January 1, 2001, as well as maps, renderings, and other printed materials that were disseminated during those trips concerning the Cote Brilliante redevelopment, were overbroad and therefore burdensome within the meaning of KRS 61.872(6). So too, we reject the city's invocation of KRS 61.878(1)(i) to support nondisclosure of records documenting expenditures incurred in conjunction with the redevelopment plan, but affirm the city's refusal to release the plan itself based on the city's assertion that it is a nonfinal draft that has yet to be presented to the Board of Commissioners. Additionally, we affirm the city's denial of Mr. Rutledge's application for open records requests submitted by or on behalf of the city commissioners, or relating to Mr. Ciafardini, based on the city's assertion that no such records exist. 7 We make no finding on the alleged procedural error relating to the timeliness of the city's response in light of the factual ambiguities in the record on appeal. 8 We examine each of the categories of disputed records below.
Emails to and from McBride Dale Clarion and Cors & Bassett since January 1, 2005, in connection with the work that was authorized under Commissioners' Order No. R-2001-198 for planning services involving proposed redevelopment districts in Newport.
Emails sent within city government, as well as all reports that were presented to city commissioners in connection with this contract and any other contract related to development of the areas covered by this contract since January 1, 2005.
As noted, the city denied these requests on the basis of KRS 61.878(1)(l), incorporating the attorney client privilege and work product doctrine into the Open Records Act, KRS 61.878(1)(i) and (j), authorizing nondisclosure of preliminary drafts and preliminary memoranda in which opinions are expressed or policies formulated or recommended, and KRS 61.872(6), relating to open records applications that place an unreasonable burden on a public agency or that are intended to disrupt other essential functions of the agency. With respect to the arguments advanced under KRS 61.878(1)(i), (j), and (l), we are foreclosed from assessing the propriety of the city's action by virtue of the fact that the city declined to produce the disputed records for review under KRS 61.880(2)(c). The fact that the city is engaged in ongoing litigation relative to the subject of the emails does not, perforce, render all emails exchanged by city employees and McBride Dale Clarion or Cors & Bassett privileged communications or attorney work product. OAG 88-25; OAG 91-109; 03-ORD-042; 03-ORD-045. 9 This is particularly true in light of the fact that the city's contracts with these companies expressly exclude the rendition of legal services. 10 Similarly, the fact that some matters discussed in the mail exchanges that are responsive to Mr. Rutledge's request have not been finalized does not transform all responsive email exchanges into preliminary drafts and notes or preliminary memoranda in which opinions are expressed or policies formulated or recommended. 05-ORD-144; 05-ORD-210; 05-ORD-221; 05-ORD-280. We cannot accept, in the interest of comity, that all of the emails withheld actually qualify for exclusion.
Nor can we blindly accept the assertion that to produce the requested emails would place an unreasonable burden on the city. The record on appeal reflects the city's view that "the city computers on which these emails may be located are in active use by their assigned individuals," that "there has been no delineation . . . of what employees should be considered and the potential covered emails, " and that "there is [no] large data pool from which emails may be extracted . . . ." The city provides us with no particulars as to the configuration of its email system that would support these propositions. The city's bare assertions, standing alone, are not sufficient to meet the clear and convincing standard of evidence found at KRS 61.872(6).
Mr. Rutledge's requests were restricted as to time (in each case less than a one year period) and topic (in each case focusing on "work authorized under Commissioners' Order No. R-2001-198 for planning services involving proposed redevelopment districts in Newport" and email communications relating to "this contract and any other contract related to redevelopment of the areas covered by the contract . . .)." Although he did not identify, by name, the city employees or employees of McBride Dale Clarion or Cors & Bassett whose email communications he sought, the city could, with relative ease, determine which of its employees have worked on the redevelopment project[s] described and the individuals with whom they communicated amongst themselves and within the named companies. Clearly, Mr. Rutledge's requests were sufficiently specific to enable the city's records custodian to locate and make any nonexempt records sought available for inspection. 94-ORD-12, p. 3; 03-ORD-40; see also, Department of Corrections v. Chestnut, Ky., App., 2004-CA-001497-MR (12/29/05) unpublished decision 11 holding that "as long as the custodian can identify what documents the applicants wish to see, the statute is satisfied." The burden therefore shifted to the city to establish an unreasonable burden by clear and convincing evidence per KRS 61.872(6). Here, as in Chestnut, above at 4, the city makes no attempt to "forecast what its actual burden would be." This argument fails.
Bearing in mind that KRS 61.880(2) provides that an agency resisting disclosure has the burden of proof to sustain its action, that the same provision authorizes this office to obtain "additional documentation from the agency for substantiation . . . [including] a copy of the records involved" and the city declined our request to conduct an in camera inspection of the emails, that KRS 61.872(6) requires clear and convincing evidence of an unreasonable burden and the city has offered no evidence of "what its actual burden would be," Chestnut at 4, we find that the City of Newport did not meet its burden of proof under KRS 61.872(6), or KRS 61.880(2)(c) generally, in denying these requests. Accord, 05-ORD-185 (Office of the Governor, having failed to produce disputed emails for in camera inspection, did not satisfy its statutory burden of proof in denying request for emails sent to or from Governor's email address).
All job performance reviews [in] Phil Ciafardini's file, including all written commendations or reprimands and all final actions taken concerning the employee. [D]ocuments detailing salary and compensation information and any employment contracts.
The City of Newport agreed to release records reflecting City Manager Phil Ciafardini's salary, 12 but otherwise denied Mr. Rutledge's request for job performance reviews, written commendations, and reprimands on the basis of KRS 61.878(1)(a). In 06-ORD-010, issued on January 18, 2006, this office reaffirmed the longstanding principle that records relating to a public employee's performance of his public duties are open records and are not excluded from public inspection by operation of KRS 61.878(1)(a). A copy of that decision is attached hereto and incorporated by reference. At page 4 and 5 of that decision, we quoted from earlier decisions recognizing that:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20, OAG 92-34, 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment.
06-ORD-010, p. 4, 5, citing 97-ORD-66, p. 5 and 05-ORD-012, p. 8.
Although we noted that employee evaluations and job performance reviews had generally been held to fall within the parameters of KRS 61.878(1)(a), 13 in 00-ORD-177 we affirmed the public's right of access to the evaluation/review of the Henderson City Manager, concluding that as "chief administrative officer of the city," per KRS 83A.150(9), his privacy interests in the evaluation/review must yield to the public's interest in monitoring the performance of the individual who occupies "a leadership role of ultimate responsibility . . . ." A copy of 00-ORD-177 is also attached hereto and incorporated by reference. Under this line of authority, the city's position relative to Mr. Ciafardini's evaluations/reviews, as well as any commendations or reprimands issued to him, is untenable. If, by "all final actions taken concerning the employee," Mr. Rutledge meant letters of termination or resignation, he is also entitled to review any existing responsive records. 94-ORD-108. In sum, the requested personnel records are open, public records to which Mr. Rutledge must be afforded access.
All travel records, including invoices and payments, for trips taken by city employees in connection with economic development projects, including the ones in Cote Brilliante, since Jan. 1, 2001. [Subsequently modified to include only those trips] taken by city employees in connection with the Cote Brilliante economic development project, since Jan. 1, 2005 (not including trips within Northern Kentucky or Greater Cincinnati).
All literature or documents, including maps, renderings or other printed materials that were given to people during those trips concerning the Cote Brilliante Redevelopment Area.
The City of Newport denied both of these requests, characterizing them as "overbroad" and "burdensome, " and focusing on the lack of definition and specificity which left "the possibilities too numerous" and the potential for inaccuracy too great. 14 Respectfully, we disagree. To begin, Mr. Rutledge requested access to, rather than copies of, travel records. The degree of specificity in the description of records to which an individual requests access by means of onsite inspection, has, as noted, been the subject of a series of open records decisions recognizing that:
The Open Records Act . . . contemplates records access by one of two means: onsite inspection during the regular office hours of the agency in suitable facilities provided by the agency, or receipt of records from the agency through the mail. 15
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by onsite inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail. In construing these provisions this office has observed:
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8. 93-ORD-116; 94-ORD-12. Those decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:
95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "descri[ption]" for purposes of on-site inspection pursuant to KRS 61.872(2). We have not, however, had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precis[ion]."
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
97-ORD-46, p. 3, 4. Because Mr. Rutledge requested to conduct an onsite inspection of the city's records, we assess the degree of specificity necessary under the KRS 61.872(2) standard, requiring "sufficient clarity to enable the public agency to locate and make them available." Id.
Clearly, Mr. Rutledge's requests satisfy this standard. He requested a specific category of records that have long been deemed open records (travel records and written materials disseminated in the course of these travels) , 16 for a specific period of time (originally a four year period but later reduced to one year), relating to a specific topic (the Cote Brilliante redevelopment project), and excluded local trips within Newport and Greater Cincinnati. We find unpersuasive the city's argument that any of the words employed in the description are somehow ambiguous or lend themselves to conflicting interpretations. As is the case with the requested emails referenced above, the city is best equipped to determine which of its employees made trips, and/or disseminated written material, in connection with the Cote Brilliante redevelopment project. Moreover, the city should have in place a records management policy which provides a mechanism by which responsive records can be located. Because Mr. Rutledge's requests were sufficiently specific to enable the custodian of the city's records to locate the records sought, it was, and is, incumbent on the city "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 04-ORD-028, p. 10, citing 95-ORD-96, p. 7, 8. The city cannot evade its duty through its claims of an unreasonable burden, but must expend reasonable efforts to identify, locate, and make available for inspection all existing records that are responsive to Mr. Rutledge's requests.
Copies of the plan(s) printed under Invoice 16 for Newport Urban Redevelopment II, covering the period May 31, 2004, to July 2, 2004. Also, documentation of any spending toward that contract since Jan. 1, 2004.
The City of Newport denied this portion of Mr. Rutledge's request on the basis of KRS 61.878(1)(l), characterizing the records as "protected work product and lawyer-client privileged communications." The city also maintained that the requested records constituted preliminary drafts, within the meaning of KRS 61.878(1)(i), and "preliminary recommendations," within the meaning of KRS 61.878(1)(j) . While we concur with the city in its view that the development report that is apparently responsive to this request enjoys protection under KRS 61.878(1)(i) until such time as it is approved by the Board of Commissioners, we cannot agree that this exemption, or any of the other exemptions cited, authorize nondisclosure of records documenting expenditures associated with the contract.
With reference to the draft report, we refer the parties to 00-ORD-197, a copy of which is attached hereto and incorporated by reference. See also, 05-ORD-048 (enclosed). As a "preliminary version of a plan, document, or picture," The American Heritage College Dictionary, 495 (4th ed. 2002); 97-ORD-183; p. 4; 04-ORD-125, the report qualifies for exclusion under KRS 61.878(1)(i). Nothing appears in the record on appeal to warrant this office in departing from the cited authorities.
Nevertheless, we find no support in the law for the proposition that records documenting expenditures under a contract may be withheld as work product or privileged communications between an attorney and client, 17 or that such records qualify for exclusion as preliminary drafts or preliminary memoranda in which opinions are expressed or policies formulated or recommended. As this office observed at page 11 of 04-ORD-030, "the rationale that underlies the preliminary documents exceptions . . . does not support nondisclosure of bills paid . . . ." Guided by the well-entrenched principle that "the public is . . . entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made [by the agency] . . ., and bills and statements submitted to [the] agency," 18 we find that the City of Newport improperly withheld "documentation of any spending toward" the contract executed under Invoice 16 for Newport Urban Redevelopment II.
Conclusion
We therefore find that although the City of Newport properly disposed of those portions of Mr. Rutledge's requests relating to the draft redevelopment report, the city manager's salary records, and the nonexistent open records requests and responses, its disposition of the remaining portions of his requests was improper. We find no support in the law for the city's position that it may withhold records relating to the city manager's job performance or spending records under a specific contract. We reject its position that Mr. Rutledge's request for travel records and written materials disseminated during these travels was overbroad and burdensome. Finally, we are constrained to find that the city did not meet its burden of proof in issuing a blanket denial of his requests for email communications concerning the Cote Brilliante redevelopment project in light of the city's refusal to comply with our request for in camera inspection per KRS 61.880(2)(c). We make no findings on the procedural violations alleged given the factual ambiguities in the record on appeal. Accord, 02-ORD-1.
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.
Paul AlleyGraydon Head & Ritchey LLPP.O. Box 17070Ft. Mitchell, KY 41017-0070
Michael L. SchulkensNewport City Solicitor998 Monmouth StreetNewport, KY 41071-2115
Thomas FrommeActing City Manager 998 Monmouth StreetNewport, KY 41071-2115
Robin AndersonActing City Clerk998 Monmouth StreetNewport, KY 41071-2115
Footnotes
Footnotes
1 The city's disposition of this request is not in dispute.
2 The city appears to have treated requests 4 and 5 as a single request. This accounts for the discrepancy in the numbering of Mr. Rutledge's requests and the city's response.
3 Although the city referenced KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," the city did not cite the "enactment of the General Assembly" engrafted upon the Open Records Act by operation of KRS 61.878(1)(l). We assume the city intended to rely on KRE 503 as well as CR 26.02. It is incumbent on the city to provide the additional statutory citation pursuant to KRS 61.880(1) as construed in Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996).
4 It appears that Mr. Rutledge may have inadvertently omitted the word "in" from this request. If this is the case, he did not wish to inspect Mr. Ciafardi's entire personnel file, but only records relating to his job performance, such as evaluations, commendations, or reprimands.
5 "Contract for Planning Consulting Services Provided to the City of Newport, Kentucky." Unexecuted copy attached to letter of appeal as Appendix F.
6 Given the heterogeneous nature of email communications, it is the standard practice of this office to request copies of disputed emails from agencies resisting disclosure of same to facilitate our review of the issue of whether the agency properly denied access. See, e.g., 05-ORD-144; 05-ORD-210; 05-ORD-185; 05-ORD-221; 05-ORD-280. In the latter decision, this office largely affirmed the Transportation Cabinet's denial of a request for some 273 emails on the basis of KRS 61.878(1)(i) and (j) following a review of those emails under the provisions of KRS 61.880(2)(c). A copy of that decision is attached hereto and incorporated by reference.
7 This position is consistent with a long line of decisions recognizing that a public agency cannot produce for inspection a record that does not exist, and that the agency discharges its statutory duty under the Act by affirmatively so notifying the requester. See, 02-ORD-163 (enclosed) and authorities cited therein. In the absence of proof that responsive open records requests exist, we find no reason to question the veracity of the city with respect to this issue.
8 The City of Newport is not obligated to accept an open records request transmitted by email, but may "consent, by a clear course of conduct, to transact [its] open records business by email. " 98-ORD-167, p. 5. Mr. Rutledge submitted his open records requests by fax and by email. The city signaled its consent to communicate with him electronically about his requests by subsequent email transmissions. The dispute concerning the dates of delivery and receipt of requests and responses might have been avoided had the parties conducted their open records business by one of the statutorily recognized mechanisms, namely, hand-delivery, U.S. mail, or fax. KRS 61.872(2).
9 In OAG 88-25 (enclosed), the Attorney General held that the mere fact that the agency was engaged in litigation, or represented by an attorney, did not mean that every document could be withheld under the work product doctrine or as a privileged communication.
10 The city does not dispute the presence of this term in the contract.
11 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c) cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request.
12 If Mr. Ciafardini's salary records have not already been released to Mr. Rutledge, the city should make immediate arrangements for inspection.
13 Citing OAGs 77-394, 79-348, 80-58, 82-204, 86-15 and 89-90.
14 We remind the parties that disclosure of records under the Open Records Act does not constitute a guarantee as to the accuracy or verifiability of those records. 02-ORD-89; 04-ORD-032; 05-ORD-008 (enclosed).
15 KRS 61.872(3)(a) and (b).
16 See, e.g., OAG 90-19 ("travel expense information [of public employees] is subject to public scrutiny"); 95-ORD-18 (records relating to expenditures associated with public employee's travel to, and attendance at, a seminar on the topic which pertained to pending litigation are not shielded from disclosure by attorney client privilege or otherwise exempt).
17 See 04-ORD-030; 05-ORD-217 (enclosed).
18 See OAG 92-14; OAG 92-92; 93-ORD-58.