Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Kenton County Attorney's disposition of Dale Emmons' request for records relating to imprinted items, signage, and other specialty advertisings items purchased by the Office and travel itineraries and expenses paid for out of Office funds from the date that the current Kenton County Attorney assumed office to date of the request.
By letter dated August 2, 2006, Mr. Emmons submitted a request to the Kenton County Attorney for the following records, covering the time period from the date he assumed the position as county attorney to August 2, 2006:
An accounting of any and all payments made for imprinted items, signage and other specialty advertisings items purchased with funds from the Office of Kenton County Attorney or the Office of Kenton County Child Support Enforcement.
Copies of all invoices for imprinted items, signage or other specialty advertisings items purchased with funds from the Office of Kenton County Attorney or the Office of Kenton County Child Support Enforcement.
All receipts related to travel by you or any other employee of the Kenton County Attorney's office, including, but not limited to, copes of any and all receipts for hotel/motel room(s), meals, alcohol, airline tickets, taxi cab fare, reimbursement for mileage, and any other miscellaneous travel-related expenses incurred or reimbursed by the Kenton County Attorney's office.
Any and all travel itineraries and/or reservations for yourself or any employee of the Kenton County Attorney's office for any future trips, already paid for by, or in any way associated with, the Office of Kenton County Child Support Services.
By letter dated August 8, 2006, Garry L. Edmondson, Kenton County Attorney, advised Mr. Emmons that his office was examining their records to locate the records he requested and would have them available for his inspection. He anticipated the records would be available by late the nest week.
On August 15, 2006, Mr. Emmons sent a letter to County Attorney clarifying that it was his desire to purchase copies of the records he requested.
In his letter of appeal, dated August 28, 2006, Mr. Emmons advised this office that the Office of Kenton County Attorney had not complied with his request.
In a letter dated August 29, 2006, the Office of Kenton County Attorney advised Mr. Emmons that copies of the records he requested were available for him and he should bring a check for $ 74.60 for the copies.
After receipt of Notification of the appeal, Mr. Edmondson advised this office that the requested copies were available for Mr. Emmons to pick up and he believe the appeal was moot.
In a September 1, 2006 letter to this office, Mr. Emmons stated that he had picked up the records from the Office of the Kenton County Attorney, but stated that the materials provided were incomplete in that the had requested dating back to the date Mr. Edmondson assumed office and the materials provided dated back only to 2001.
In a September 9, 2006 letter, Mr. Edmonson addressed Mr. Emmons' claim that the records provided did not go back to when he assumed the office of County Attorney, explaining to him:
The materials provided satisfy your request in full. Under Kentucky law my office is not required to keep documents for thirteen years and we have not. We have kept documents in compliance with the Kentucky Records Retention Policy for County Attorneys and those records are the ones that were supplied to you. I am not required to provide you documents I do not have.
We address first the dispute between the parties as to whether the Office of County Attorney satisfied Mr. Emmons' request. Mr. Edmondson advised that his office satisfied the request in full and Mr. Emmons claims the records provided was incomplete. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3. Where some, but not all, of the requested records are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4 (emphasis added). We see no reason to depart from that position in the instant appeal. Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to these requested records. If all available records were provided after Mr. Emmons initiated his appeal, the issue as to these records would be 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. 99-ORD-150.
Moreover, we find that the Office of Kenton County Attorney's denial of the request for records from the date that the current Kenton County Attorney assumed office was proper. This office has long recognized that a public agency cannot produce for inspection and copying records that no longer exist. 04-ORD-005. Our review of the applicable records retention schedule and series, a copy of which is attached, confirms the Kenton County Attorney's position. Records of the type requested by Mr. Emmons appear in Series No. L2866 - Administration - Accounts Payable - County Attorney Retention Schedule, and must be retained at the agency for three years after which they may be destroyed after audit. 1 Because the Office of Kenton County Attorney's inability to produce the requested records stems from proper records management practices, we find that this denial warrants no additional inquiry and is instead entirely consistent with the Open Records Act, and in particular, KRS 61.8715. 2
A party aggrieved by this decision may appeal it by initiating an 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.
Dale EmmonsP. O. Box 1551Richmond, KY 40476-1551
Garry L. EdmondsonKenton County Attorney 303 Court Street, Room 307Kenton County BuildingCovington, KY 41011-1627
Footnotes
Footnotes
1 This is also consistent with Local Government Records Retention Schedule, Series No. L50001 - Banking Records File - (cancelled checks and warrants, bank statements, etc.), which also requires a three year retention of the records, after which the records may be destroyed after audit. Copy attached.
2 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.