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 Department of Revenue violated provisions of the Open Records Act in the disposition of Mitzi D. Wyrick's requests for records relating to its unitary tax filing system. For the reasons that follow, we find that the Department's actions were partially violative of the Act.
In September 2005, Ms. Wyrick submitted two open records requests to Commissioner Mark Treesh. The Department issued a timely, but nonfinal, response to Ms. Wyrick's September 1 request on September 8, 2005, advising her that her requests were "overly-broad and [would] take some time to respond to." Relying on KRS 61.872(5) and (6), Department attorney Laura M. Ferguson explained that "several employees in various offices" would have to be queried, and responsive documents closely reviewed for purposes of redacting excepted material, before the records could be produced for inspection and copying. Ms. Ferguson notified Ms. Wyrick that "the earliest date the Department would be able to accommodate [her] would be October 14, 2005," advising her that "[t]o do otherwise would not only place an unreasonable burden on the Department, but also disrupt other essential functions that the Department performs for the citizens of the Commonwealth . . . ." An analysis of the Department's October 8, 2005, final disposition of Ms. Wyrick's requests is set forth below. 1
On September 27, 2005, Ms. Wyrick requested access to "[a]ll documents produced by Revenue . . . in the Johnson Controls litigation in the Franklin Circuit Court, Civil Action No. 00-CI-00661. " The Department denied this request on the basis of the nonexistence of the requested records by letter dated September 30, 2005, explaining that although it maintains pleadings files for active cases, "even while a case is pending in the trial court, these pleadings files generally do not include copies of documents produced by the [Department] in response to discovery requests by opposing parties . . . ." The Department acknowledged that "[s]uch documents might be retained in working files used by the attorneys responsible for the case," but asserted that "the maintenance of any such working files is within the professional discretion of the responsible attorneys." With reference to the requested Johnson Controls records, the Department advised that a review of the "the pleadings files and other records presently maintained" confirmed the nonexistence of copies of documents produced in response to discovery requests. Noting that the Franklin Circuit Court "only allowed discovery of 'communications and correspondence between . . . Revenue . . . and the Executive Branch of the Commonwealth' and 'communications and correspondence between . . . Revenue . . . and the Legislative Branch of the Commonwealth . . .' related to legislation enacted as 2000 H.B. 541," the Department argued that "it is highly likely that any documents responsive to the Johnson Controls request for production would be excluded from the application of KRS 61.870 to 61.884 . . . under KRS 61.878(1) and KRS 61.878(j) [sic.]."
On November 21, 2005, 2 Ms. Wyrick initiated this appeal asserting that "the Department defies both the substantive and procedural mandates of Open Records when it first postponed a timely response to [her original] request, stating it needed time to determine whether the records exist, and then ultimately -- six weeks later -- denied the request for not being 'properly framed' to begin with." She further objected to the Department's refusal to confirm that records responsive to her second, narrower request are maintained by its attorney, Christopher Trower. In particular, Ms. Wyrick objected to the lack of specificity as to the scope of its search for the latter records, including its failure to state whether its search included Department counsel Trower's files.
With reference to her earlier request and the Department's ultimate disposition of same, 3 Ms. Wyrick objected that "every denial . . . is based on the wording of the request itself, without regard to the actual content or location of the specified records," and without having attempted to actually locate and review any of the "specified unitary tax records." 4 Ms. Wyrick challenged the Department's characterization of her open records requests as "improperly framed" requests, and its failure to provide clear and convincing evidence of an unreasonable burden per KRS 61.872(6) . It was her position that all of her requests "were for specified records relating to an isolated tax reporting procedure, some for limited time frames," and that the Department improperly "denied eight of the nine requests based on form." In addition, it was her position that the Department's invocation of certain statutory exemptions "relies entirely on the wording of the request and has nothing to do with the actual record itself."
In supplemental correspondence directed to this office following commencement of Ms. Wyrick's appeal, the Department amplified on its position. The Department began by noting that her first request "consisted of nine categories of documents . . . span[ning] at least a 20-year period," and that four of the categories of requested records "involved approximately 100,000 corporate income tax returns for each year in question." By way of example, she explained:
The Department of Revenue receives about 100,000 corporate income tax returns each year. Category 3 of Request No. 1 was "any correspondence, questionnaires, and similar material sent to taxpayers seeking information about unitary attributes and other matters pertaining to the determination of a unitary group." Merely to locate such "correspondence" would require the agency to manually search 100,000 files (each containing dozens if not hundreds of pages of tax return documents) for each year. If each file could be reviewed in five minutes, it would take four people (each working 40 hours a week) over a year to manually search 100,000 files.
Moreover, the Department asserted, Ms. Wyrick's position should not be affirmed on appeal:
because (i) the Appeal is untimely, 5 (ii) the documents requested by two of the nine categories do not exist, (iii) the documents requested by eight of the nine categories are excluded from the application of the Open Records Act by KRS 61.878(1)(i), and 61.878(1)(j), and 61.878(1)(l), and (iv) the sole remaining category is not a properly framed open records request, as previously determined by 04-ORD-193; 96-ORD-101; and 99-ORD-14.
An analysis of each of Ms. Wyrick's requests, and the Department's responses, follows.
Request 2: Any and all policies or procedures regarding the filing, auditing or review of tax returns under the unitary method of reporting.
Request 4: A copy of Revenue Cabinet policy 41P225, any preceding policies related to the filing of unitary/ combined returns, and any subsequent policies regarding the filing of unitary/ combined returns.
On appeal, the Department asserts that it cannot produce records responsive to these requests, other than the Revenue Policy 41P225 which has already been produced, because no responsive records exist. The Department explains:
The filing of unitary returns in Kentucky has been prohibited by statute for more than ten years. See KRS 141.200(15) (prohibiting filing of unitary returns for 1995 and subsequent years). Revenue Policy 41P225 itself, which was adopted in 1998, was held invalid and unenforceable by the Franklin Circuit Court in the early 1990's. In 1994, the Kentucky Supreme Court prohibited any application of Revenue Policy 41P225 "either retroactively or prospectively." GTE v. Revenue Cabinet, 889 S.W.2d 788, 793 (Ky. 1994).
In its original denial, the Cabinet argued, in the alternative, that the requests "place[] an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined records."
With reference to the Department of Revenue's argument that it "does not own, use, possess, retain, or maintain any documents constituting 'policies and procedures' concerning the administration of the tax laws with respect to unitary returns," we find that in order to discharge its obligation under the Open Records Act the Department is obligated to document what efforts were made to locate responsive records. On this issue, the Attorney General has long recognized:
[A] public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-11, O AG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents. However, since July 15, 1994, when [KRS 61.8715] 6 took effect, we have applied a higher standard of review relative to denials based on the nonexistence . . . of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records.
95-ORD-96, quoting 94-ORD-141. In 95-ORD-96, the Attorney General established a standard by which we assess the adequacy of an agency's search. At page 7 of that decision, we determined that an agency must "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, citing Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978).
While we are fully cognizant of the fact that the filing of unitary returns in Kentucky has been prohibited by statute for more than ten years, and that, accordingly, no current policies exist that are responsive to Ms. Wyrick's request, we find nothing in the record on appeal to substantiate the Department's position that Revenue Policy 41P225 is the only policy relating to the filing of unitary returns that was ever implemented by the Department. Stated simply, the Department fails to provide even a minimal description of the search it conducted for responsive policies. Such policies, if they exist, constitute permanent records per Series M0003 of the General Schedule for State Agencies, one copy of which must be retained in the office of origin. It is, therefore, incumbent on the Department to describe the search it undertook to locate responsive policies, or if it made no actual effort in this regard, to "conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 7, above.
We cannot agree that requests 2 and 4 are impermissibly vague, and there is no evidence, clear and convincing or otherwise, that the requests implicate incalculable numbers of widely dispersed records. As Ms. Wyrick correctly notes, these requests were specific as to the type of record sought, namely, policies and procedures, as well as subject, namely, the unitary tax reporting procedure. In a recent unpublished opinion, the Kentucky Court of Appeals determined that "as long as the custodian can identify what documents the applicants wish to see, [KRS 61.872(2)] is satisfied." Department of Corrections v. Chestnut, Ky. App., 2004-CA-001497-MR (2005). 7 Ms. Wyrick's requests meet this standard. Because it failed to "forecast what its actual burden will be," Chestnut at 4, the Department's response was deficient. In the absence of evidence of an unreasonable burden, within the meaning of KRS 61.872(6), we cannot affirm the Department's claim. Accord, 06-ORD-018.
Request 3: Any correspondence, questionnaires, and similar materials sent to tax payers seeking information about unitary attributes and other matters pertaining to the determination of a unitary group.
In its supplemental response, the Department asserts that the requested records "constitute 'correspondence with private individuals' excluded from the application of the Open Records Act under KRS 61.878(1)(i)." The Department also relies on KRS 131.081(15), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), arguing that correspondence to taxpayers constitutes "information regarding the tax schedules, returns, or reports required to be filed by such taxpayers, disclosure of which is prohibited by KRS 131.081(15), KRS 131.190(1), and KRS 131.990." Additionally, the Department argues, at footnote 2:
The Department of Revenue receives about 100,000 corporate income tax returns each year. Category 3 of Request No. 1 was "any correspondence, questionnaires, and similar material sent to taxpayers seeking information about unitary attributes and other matters pertaining to the determination of a unitary group." Merely to locate such "correspondence" would require the agency to manually search 100,000 files (each containing dozens if not hundreds of pages of tax return documents) for each year. If each file could be reviewed in five minutes, it would take four people (each working 40 hours a week) over a year to manually search 100,000 files.
Without reaching the issue of whether KRS 61.878(1)(i) and KRS 61.878(1))(l) authorize nondisclosure of the requested records, we affirm the Department's denial of request 3 on the basis of KRS 61.872(6). In contrast to its responses to requests 2 and 4, here the Department "forecasts what its actual burden will be" with the degree of specificity envisioned by that statute. Chestnut at 4. As this office observed in 00-ORD-72:
[KRS 61.872(6)] is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies for exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence . . . .
. . .
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. There we held that mere invocation of the cited exception does not sustain the agency's burden.
00-ORD-72, p. 2-4.
In OAG 91-58, we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). The agency explained that the requested documents might be located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials. Similarly, in 96-ORD-42, the Attorney General affirmed the Workforce Development Cabinet's denial of a request for P-1's reflecting promotions in the Department for Employment Services between July 1, 1994, and June 30, 1995, on the basis of KRS 61.872(6). In an attempt to establish, by clear and convincing evidence, the unreasonably burdensome nature of the request, the Cabinet explained:
The Workforce Development Cabinet does not have a list of DES employee's [sic] who received promotions during this period. The only manner in which the Cabinet could determine which DES employees received promotions during the time in question is to physically examine the 1,167 personnel files transferred to the Cabinet from the Cabinet for Human Resources ('CHR') at the time of the reorganization. The Division of Personnel Services ('the Division') estimates that it would take an average of fifteen (15) minutes to examine each personnel file. It would take staff of the Division, with an average salary of $ 16.49 per hour, 291.765 hours to determine which employees received promotions. It is estimated that it would cost $ 4,810.96 just to make this initial step to comply with your request.
After the individuals who received promotions during the time covered by your request are identified, the Division would have to remove the P-1's from their files; copy the P-1's, redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 back into the personnel file; and copy the redacted P-1's for your inspection. The Division estimates that it would take an average of fifteen (15) additional minutes to complete these procedures for each employee who received a promotion.
It is this degree of specificity which KRS 61.872(6) envisions. See also, 97-ORD-88 (affirming Cabinet for Health Services denial of open records request on the basis of KRS 61.872(6)).
It is this degree of specificity that the Department provides with respect to the unreasonable burden imposed by request 3. It could not have been the "legislative intent that public employees exercise [this level of] patience and long-suffering in making public records available for public inspection. " OAG 77-151, p. 3. We affirm the Department's denial of request 3.
Request 8: Any contracts, memorandums of agreement or understanding, or similar documents in which the Commonwealth of Kentucky or the Revenue Cabinet on its behalf participated in the Joint Audit Program of the Multistate Tax Commission.
Request 9: The audit files related to all audits conducted by the Multistate Tax Commission's Joint Audit Program on behalf of the Revenue Cabinet.
In denying requests 8 and 9, the Department relies on KRS 61.878(1)(l), 8 incorporating KRS 131.081(15) and KRS 131.190(1) into the Open Records Act. KRS 131.081(15) provides that "no information pertaining to the returns, reports, or the affairs of a person's business shall be divulged by the Department to any person . . . ." KRS 131.190(1) prohibits Department employees from divulging "any information . . . of the affairs of any person, or information regarding the tax schedules, returns, or reports required to be filed with the department . . . ." The Department maintains that "joint audit program documents" and "audit files" from joint audit programs contain information protected by these confidentiality provisions. The Department also argues that production of the requested records, which span a period from eleven to thirty years ago, would impose an unreasonable burden upon it, specifying, with regard to request 9:
The Department of Revenue receives approximately 100,000 corporate income tax returns each year which are not flagged or otherwise identified as involving an MTC audit, and as a result, would be required to manually search those files in order to respond to this request.
Combining this assertion with the Department's forecast of the actual burden associated with reviewing 100,000 files for each year MTC conducted audits, we affirm the denial of request 9 on the basis of KRS 61.872(6) as analyzed in relation to request 3, above. Again, we do not address the propriety of the Department's invocation of KRS 61.878(1)(l) and KRS 131.081(15) and .190(1), having resolved this matter under KRS 61.872(6).
We do not, however, affirm the Department's denial of request 8 on either of these bases. Ms. Wyrick requested contracts, memorandums of agreement or understanding, or similar documents reflecting the Department's participation in the Joint Audit Program of the Multistate Tax Commission. It is highly unlikely that a contract or memorandum of agreement would contain sufficient detail to divulge information pertaining to the tax schedules, returns, reports or the affairs of a person's business. A contract is defined as "[a] writing which contains the agreement of parties, with the terms and conditions, and which serves as proof of the obligation." Black's Law Dictionary 292 (5th ed. 1979). 9 A memorandum of agreement is defined as:
[A]ny memorandum of agreement, memorandum of understanding, program administration contract, interlocal agreement to which the Commonwealth is a party, privatization contract, or similar device relating to services between a state agency and any other governmental body or political subdivision of the Commonwealth that involves an exchange of resources or responsibilities to carry out a governmental function.
KRS 45A.690(7) . Because the Department has provided no particulars as to the nature of responsive contracts and memorandums of agreement, or otherwise briefly explained how the provisions relied upon apply to the records withheld, we find that its reliance on KRS 61.878(1)(l) and Chapter 131 was misplaced.
So too, we find that its reliance on KRS 61.872(6) in support of its denial of request 8 was misplaced. Assuming, arguendo, that the Department entered into a separate contract or memorandum for each of the years it participated in the Joint Audit Program of the Multistate Tax Commission, the total number of documents implicated by the request could not exceed twenty documents. Bearing in mind that Series F007 of the General Schedule for State Agencies provides for "indefinite" retention of contracts, we find that the responsive contracts and/or memorandums of agreement, if they still exist, must be produced for inspection.
Request 5: All memos and drafts of memos regarding the filing, auditing, review of tax returns under the unitary method and how the unitary method should be applied in Kentucky.
Request 6: All files regarding unitary filings in Kentucky and how unitary filings should be treated reviewed, audited, or processed.
Relying on KRS 61.878(1)(i) and (j), the Department denied these requests, explaining:
"Drafts of memos" prepared by an agency are excluded from the application of the Open Records Act under KRS 61.878(1)(i) [exempting "preliminary drafts" and "notes"].
Any "memos" other than drafts of memos regarding "how the unitary method should be applied" (Category 5) or "how unitary filings should be treated, reviewed, audited, or processed" (Category 6) are excluded from the application of the Open Records Act under KRS 61.878(1)(j) [exempting "preliminary memoranda in which opinions are expressed or policies formulated or recommended"].
In its original denial, the Department also invoked KRE 503, the attorney-client privilege, and CR 26.02(3), the work product doctrine, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), characterizing responsive records as confidential communications. Additionally, the Department invoked KRS 131.081(15), KRS 131.190(1), and KRS 131.990, asserting that responsive memoranda and files "contain information with respect to particular taxpayers . . . ." Finally, the Department invoked, without specifically citing, KRS 61.872(6), observing that "a request for 'all memos and drafts of memos' related to a subject such as 'unitary' corporate tax returns, . . . concerns hundreds of corporate taxpayers over the past 25 years, which . . . would need to be manually searched . . . ." Although the Department did not forecast, with the same degree of specificity, what its actual burden would be with respect to these requests, its responses to requests 3 and 9 are indicative of the nature of the burden imposed by the request, implicating 25 years of corporate filings totaling some 100,000 filings per year. Consistent with the position taken above relative to correspondence, questionnaires, and similar materials sent to taxpayers, "we affirm the Department's denial of requests 5 and 6 on the basis of KRS 61.872(6) insofar as production of all records implicated by the requests would place an unreasonable burden on the Department. Although we do not reach the issue of whether the responsive records qualify for exclusion under the cited provisions, we note that there is a considerable likelihood that some or all of the records sought would, in fact contain protected/exempted material, and that the difficulties associated with separating the exempt and nonexempt materials per KRS 61.878(4) would exacerbate the burden to the agency.
Request 7. All legal memos regarding the application, interpretation, or analysis of unitary filings under Early & Daniels, 682 S.W.2d (Ky. 1982); Armco, 748 S.W.2d 372 (Ky. 1988); V.E. Anderson, 87-SC-122-DG (Nov. 5, 1987) (unpublished); or GTE v. Revenue Cabinet, 889 S.W.2d 788 (Ky. 1994).
In defense of its denial of request 7, the Department asserts:
"Legal memos" are privileged under the attorney client privilege (KRE 503) and under the work product doctrine (CR 26.02(3)), and therefore constitute "information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," excluded from the application of the Open Records Act under KRS 61.878(1)(l).
The Department previously invoked KRS 61.878(1)(l), incorporating KRS 131.081(15), KRS 131.190(1), and KRS 131.990, as well as KRS 61.872(6) to support nondisclosure of the requested records. We find that its argument on appeal is dispositive of the question and affirm its denial on this basis.
In 03-ORD-243, a copy of which is attached hereto and incorporated by reference, this office affirmed the Louisville-Jefferson County Metro Government's denial of a request for "[a]ll legal opinions regarding the renovation of the Louisville Galleria and the financing of same . . ." under authority of KRE 503 as construed in Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001) and 97-ORD-127. We will not unnecessarily lengthen this already ponderous decision with a recitation of the analysis in 03-ORD-243. Suffice it to say that any record that is properly characterized as a "legal memo, " and therefore falls within the parameters of request 7, may be withheld by the Department under the attorney-client privilege.
Request 1: Any and all training manuals or guides from 1975 to 1994 used to instruct personnel to process, audit, review, or otherwise handle unitary/ combined audits and/or tax returns of taxpayers.
The Department denied request 1, characterizing it as an "improperly framed request," and noting that it "regularly conducts training sessions for hundreds of employees each year." It is the Department's position that, as framed, request 1 would require it "to comb through often incalculable numbers of widely dispersed and ill-defined records." Respectfully, we disagree.
To begin, this office has not once, but twice, recognized that the Department's training manuals and guides, or their functional equivalents, are subject to inspection under the Open Records Act. See 98-ORD-179 (Standard Policies and Procedures Manual) and 99-ORD-51 (Protest and Appeals Guidelines). These decisions were premised on the notion that disclosure would "'further the citizens' right to know what their government is doing' and what policies and procedures govern the [Department's] conduct." 98-ORD-179, p. 6, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994). Accordingly, there is no recognized statutory basis for denying a requester access to such records.
The Department's argument is therefore postulated on the difficulties associated with locating and retrieving such records. We find this argument unpersuasive for several reasons. First and foremost, Ms. Wyrick did not request training manuals for an indefinite period of time and relating to unspecified topics. Instead, she requested training manuals and guides for a nineteen year period relating to a single topic, namely, the processing, auditing, review, and/or handling of unitary/ combined audits and/or tax returns of taxpayers. As noted above with reference to requests 2 and 4, such records are governed by Series M0003 of the General Schedule for State Agencies, which requires the Department to retain one copy even after the manual or guide is superceded. "Although we do not speculate regarding the records management procedures adopted by [the Department], it stands to reason that a mechanism exists by which the [Department's] records custodian can locate and retrieve" records of an identified, limited class such as the records Ms. Wyrick seeks in request 1. 04-ORD-028, p. 10. We therefore find that the Department improperly denied request 1.
September 27 Request: All documents produced by the Revenue [Department] in the Johnson Controls litigation in the Franklin Circuit Court, Civil Action No. 00-CI-00661.
The Department denied Ms. Wyrick's September 27 request on the grounds that the requested records do not exist, and even if they exist, are excluded from public inspection by KRS 61.878(1)(i) and (j) as "preliminary drafts," "notes," or "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In support, the Department notes that "the only documents produced by the Revenue [Department] in the Johnson Controls case . . ., as described by the Order of the Franklin Circuit Court entered April 19, 2001 . . ., were 'communications and correspondence between the [Department] and the Executive Branch,' and 'communications and correspondence between the [Department] and the Legislative Branch,' concerning the proposed legislation that ultimately was enacted by the General Assembly as 2000 H.B. 541." The Department's supplemental denial expressly states that a review of "the pleadings files and other records presently maintained by the Department" yielded no responsive records. In its original denial, the Department acknowledged that "[s]uch documents might be retained in the working files used by attorneys responsible for the case . . . ." It is this statement upon which resolution of this portion of Ms. Wyrick's appeal turns.
We concur with the Department in its view that the Attorney General should not, generally, substitute his judgment for that of the public agency in deciding what records need to be created or retained. This is particularly true if no independent basis exists for imputing records mismanagement to the agency. Although the Department's Retention Schedule requires that an attorney's case file be retained indefinitely and transferred to the State Records Center three years after closure of the case, 10 the Schedule does not speak directly to the contents of the file. Ms. Wyrick does not cite, and we are unaware of, any specific requirements that an attorney's case file contain copies of records produced in discovery.
However, the Department acknowledges that the attorneys responsible for the case, including Christopher Trower, may retain copies of the requested records in their [his] working files. Based on the rule announced in City of Louisville v. Brian Cullinan, Ky. App., 1998-CA--001237-MR and Cross Appeal 1998-CA-001305 (1999), 11 we find that it is incumbent on the Department to retrieve the pertinent portions of Mr. Trower's working files (or the working files of other attorneys responsible for the case), to ascertain whether, in fact, responsive records were retained. If such records were retained, it is then incumbent on the Department to determine if all such records qualify for exclusion under KRS 61.878(1)(i) and/or (j) or otherwise forfeited their preliminary characterization by having been adopted as the basis of final action, namely, the enactment of 2000 H.B. 541.
In City of Louisville v. Brian Cullinan, above, the Kentucky Court of Appeals rejected the city's argument that documentation of legal expenses billed to the city by its contract attorneys were not public records because the city was not in possession of the items requested, and therefore not the custodian of the records. The court reasoned:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents . . . .
City of Louisville at 4. On this basis, the court concluded that "the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6), "id., and affirmed the circuit court's judgment ordering production of the records.
Numerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). For example, in 95-ORD-114 we held that a public hospital improperly denied access to a letter from the U.S. Department of Justice on the basis that the letter was not in the hospital's possession, but instead in the possession of the hospital's attorney, because the hospital failed to articulate any statutory basis for denial. Similarly, in 99-ORD-194 we held that a water district improperly postponed access to a merger agreement on the basis that the agreement was not in its possession, but instead in the possession of its attorney, holding that the fact that an agency's attorney may have possession of a public record does not negate the agency's duties under the Open Records Act. Finally, in 00-ORD-93 we held that a fire department's assertion that requested public records were not available for inspection because they were in the possession of its attorney did not constitute a sufficient legal basis for postponing the requester's access to the records. See also, 00-ORD-207 (city improperly denied request for access to settlement agreement on the basis that records of insurance carrier, and defense attorney hired by carrier, could not "be opened by a demand upon the city"). We see no reason to depart from this position.
Regardless of where records produced by the Department in the Johnson Controls litigation are located, they were "prepared, owned, and used at the instance of the" Department and are therefore "essentially the [Department's] documents . . . ." Cullinan at 4. Although Mr. Trower, or other attorneys responsible for the case, hold(s) them "as custodian on the [Department's] behalf," id., it is their nature and purpose that is determinative of their status as public records. Accord, 04-ORD-123. It is therefore incumbent on the Department to obtain copies of the responsive records, if they were, in fact, retained in the attorneys' working files and to then undertake an analysis of each record to determine if the record retained its preliminary status or forfeited same by having been adopted as the basis of final action under the rule announced in City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1982), Kentucky State Board of Medical Licensure v. Courier Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); and University of Kentucky v. Courier Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992). Until it has done so, the Department's obligations under the Open Records Act will not be fully discharged.
Procedural irregularities
On appeal, Ms. Wyrick voices strenuous objection to the procedural disposition of her requests, focusing on the six week delay between the submission of her original request and the Department's final response thereto. In rebuttal, the Department asserts that, given the broad scope of her request, it properly invoked KRS 61.872(5), providing a detailed explanation for the delay, and stating the earliest date on which any nonexempt records would be available. While we believe that the Department should have honored its commitment as to that date, rather than "estimat[ing]" and then failing to respond by the date, we are unwilling to otherwise assign error to the Department for postponing the three working day deadline. We refer the parties to 01-ORD-38, and, in particular, the discussion at pages 6 through 8 of that decision. Applying to the facts of this appeal the proposition 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 the documents," 12 we find that the Department of Revenue did not violate the procedural requirements of the Open Records Act in the disposition of Ms. Wyrick's requests.
Nevertheless, we suggest that in the future the Department put such intervening time to better use by conducting searches using methods which can reasonably be expected to produce the records requested, and reviewing the records thereafter located to determine if they actually qualify for exclusion under one or more of the exceptions to the Open Records Act. If, in its judgment, a future request imposes an unreasonable burden on it in producing public records, we suggest that the Department put such intervening time to better use by formulating a response in which it "forecasts what its actual burden will be," Chestnut at 4, rather than reciting the language of KRS 61.872(6) or open records decisions of this office construing that provision.
Summary
It is, therefore, the decision of this office that the Department of Revenue properly relied on KRS 61.872(6) in denying requests 3, 5, 6, and 9. With reference to each of these requests, the Department "forecast what its actual burden would be" and provided clear and convincing evidence of that burden. Further, it is the decision of this office that the Department properly denied request 7, relating to legal memoranda, on the basis of KRS 61.878(1)(l) and KRE 503. We do not, however, affirm the Department's denial of requests 1, 2, 4, and 8, or the September 27 request, for the reasons set forth above.
Turning to the alleged procedural irregularities in this appeal, we find that the Department complied with KRS 61.872(5) in postponing access to the requested records and that the duration of the postponement was not unreasonable. We would, however, encourage the Department to treat the "earliest date" for inspection as a date certain, and not an estimated date, for disclosure of nonexempt records, and to utilize the intervening period of time to locate and review responsive records, in the interest of insuring timely access to its 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 In the interest of brevity, we will not recite each of the nine categories of records Ms. Wyrick originally requested or the Department's ultimate response to each request, but will examine them below.
2 Pursuant to KRS 61.880(2)(b), the Attorney General extended the twenty day time limit for issuance of an open records decision by thirty work days.
3 The Department did, in fact, partially honor request four by producing Revenue Cabinet Policy 41P225.
4 In its October 18 response to Ms. Wyrick's September 1 request, the Department issued an "aggregate" denial based on "a comprehensive Order entered August 31, 2005, by the Kentucky Board of Tax Appeals in the case of Courier-Journal and Louisville Times Co. v. Revenue Department, No. K04-R-03, in which Ms. Wyrick represents The Courier-Journal. Noting that each of Ms. Wyrick's nine requests are "virtually identical to requests for production in that case" and that in its Order, the Board "sustained the Department['s] . . . objection to virtually all of the interrogatories propounded in The Courier-Journal case, and ordered that the Department . . . would not be required to answer such discovery requests," the Department maintained that KRS 61.878(1) prohibits the use of the Open Records Act to obtain discovery of documents "beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " On appeal, Ms. Wyrick challenges the Department's position, asserting that it contravenes the Court of Appeals' holding in Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 861 (2001) that "a public agency is not relieved of its duties under the Open Records Act simply because of actual or contemplated litigation." Because the Department did not pursue this defense in its response to Ms. Wyrick's letter of appeal, we do not address the argument in our decision. We would, however, be remiss in failing to note that the Stewart case cannot reasonably be construed to authorize litigants to circumvent, by means of the Open Records Act, the order of an administrative tribunal limiting discovery in a case before it.
5 The Department asserts that Ms. Wyrick's appeal was untimely because it was not filed within thirty days of the Department's denial of her requests. Acknowledging that the Act "does not specify a time frame within which a denial of an Open Records Act request must be appealed to the Attorney General," the Department maintains that "some limit must necessarily be implied" lest a requesting party "wait months or years before appealing." The Department urges this office to enforce a thirty day period of limitation based on KRS 61.880(5)(a) and KRS 13B.140(1). In the absence of an explicit period of limitation, such as that found at KRS 197.025(3), we are unwilling to impose such a restriction based on the rule of statutory construction providing that a court may not . . . "add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Bd. of Ed. of Jefferson Co., 873 S.W.2d 575, 577 (Ky. 1994). "[W]here a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision." Com. v. Taylor, 945 S.W.2d 420, 423 (Ky. 1997).
6 KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194A.146, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
7 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. A petition for discretionary review was filed in this case on January 27, 2006.
8 KRS 61.878(1)(l)authorizes nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
9 KRS 45A.030(7) defines the term "contract" as "all types of state agreements, including grants and orders, for the purchase or disposal of supplies, services, construction, or any other item."
10 Series 04908.
11 See note 5 above. Although the Cullinan opinion cannot be used as authority in the courts, it is indicative of the view the courts might 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.
12 01-ORD-38, p. 8, citing 93-ORD-134, p. 12.