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 actions of the City of Douglass Hills relative to Caroline Chan's request for "copies of all citations issued in the year 2006" and "copies of all reports from the Ordinance Enforcement Officer for the year 2006," violated the Open Records Act.
By letter dated July 26, 2007, Sherl Fetter, Mayor of the City of Douglass Hills, advised Ms. Chan that the City had provided her with the documents in its possession relating to the issue of citations by the Douglass Hills Citation Officer. Mayor Fetter further explained:
The procedure for handling citations given by the Citation officer has been, per the direction of council, to file the citation with the Jefferson District Court citing the violator to appear in traffic court at the East Government Center on a certain date. If the person comes to court and acknowledges the violation and assures the court that the situation has been corrected the city attorney has asked that the charge be dismissed. This addresses the problem but prevents the individual from having to pay court costs and fees. If an individual disputes a citation the matter is referred to Jefferson District Court downtown where it will ultimately be resolved by agreement or be heard before a Judge.
Beginning with the year 2007 the City Clerk has been asked to keep a copy of each citation issued by the Citation Officer and follow it through the system until a final resolution is made. A notation of the final resolution is to be attached to the original citation before it is filed away. Because most if not all of the citations issued in the past resulted in ultimate dismissal that was not always done.
As you may be aware the city also contracts with off duty police officers who work for the Louisville Metro Police Department to patrol in Douglass Hills for a certain number of hours each week. Those officers issue numerous citations each month but they are processed in the regular routine followed for any citation issued by Metro Police no matter where it is issued. The city does not receive copies of these citations nor does the city tract what occurs in court proceedings following those citations.
In her letter of appeal, dated July 25, 2007, Ms. Chan stated that the City provided her with copies of only five citations, "a small subset of the total written for that year as indicated by the Ordinance Enforcement Officers report and statements from the City Attorney." She further stated that the City Clerk had indicated that the citations provided were found in the office of the City Attorney, but no others could be found. She stated that in response to her request for copies of all reports from the Ordinance Enforcement Officer for the year 2006, the City had provided her with reports from March, April, August, September, and October, but had not indicated whether reports were filed for the remaining months or if the reports were missing.
After receipt of notification of the appeal, Mayor Fetter provided this office with a response to the issues raised in the appeal. He advised that in response to Ms. Chan's July 16, 2007, request the City had taken the following actions:
On July 19, 2007, Ms. Chan was provided with copies of citations which were issued to [nine named individuals] in 2006. Additionally, a memorandum from the city attorney on April 7, 2006 to the Mayor and council members indicated resolution in Jefferson District Court of citations for [three named individuals] was included which indicated that citations may have been issued at 4 separate addresses. No citations were available for those cases. Written reports to council for the months March 1 to April 4; April 4 to May 1; August, September, and October, 2006 were also provided. I believe those to be the only reports provided for distribution at the monthly council meetings.
Mayor Fetter indicated that since the City's July 19, 2007, response, four more citations were found which were never filed with the court because the individuals corrected the problem as soon as they were cited and Ms. Chan may not have received those citations as they were not processed through the court system. He further indicated that, in the past, all citations may not have been kept by the City and Ms. Chan was advised of that possibility. Mayor Fetter advised that effective January 1, 2007, the city clerk has been advised that she should keep a file which includes each citation given by the code enforcement officer and the final action taken in each case.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. Because the City cannot produce for inspection citations from 2006 that have been misplaced or no longer exist, we affirm its denial on the basis of the apparent nonexistence of those records, but focus on the interrelation between proper records management and records access recognized at KRS 61.8715.
The fact that some of the citations are or may be missing suggests a possible records management issue. Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880 and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure that efficient administration of government and to provide accountability of government activities. . . ." KRS 61.8715. On this issue, this office has observed:
Among the duties imposed on the agency head by operation of these provisions, he must "establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records." KRS 171.710.
In 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. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to 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 frustrating full access to public records.
94-ORD-121, p. 8-10.
The records at issue in this appeal fall within the parameters of Records Series No. L4679, Uniform Citation File, Local Governments Retention Schedule, the disposition instructions for which require a retention period of two years. Although it is unclear whether the records were misplaced or no longer exist, City's inability to locate some citations issued in 2006 is indicative of records mismanagement and may be appropriate for review by the staff of the Department for Libraries and Archives. The City has acknowledged this in its response and indicated that it has taken steps to prevent the loss of citations in the future. While we do not find, as a matter of law, that City violated the Open Records Act by denying Ms. Chan's request for records which it was unable to locate, we do find that City subverted the intent of the Act through its apparent failure to establish effective controls over the creation, maintenance, and use of the records, thereby frustrating Ms. Chan's right of access. We have, however, referred this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted. Accord, 05-ORD-141; 01-ORD-176; 00-ORD-46; 98-ORD-200; 94-ORD-142.
In her letter of appeal, dated July 25, 2007, Ms. Chan asserted she made a request to the City for a written statement from the City that the requested documents were missing and it was not responded to in a timely manner. 1
This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored under the Open Records Act. OAG 90-100. There we held that to the extent that the request asked questions, it was a request for information as distinguished from a request to inspect reasonably identified documents.
Moreover, in expanding on this notion that open records provisions address only inspection of records, we have held that the Act does not require public agencies or officials to provide or compile specific information to conform to the parameters of a specific request. 96-ORD-12.
However, if the requested records are lost, missing, or do not exist, a public agency must affirmatively advise the requester in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their 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. [Citations omitted.]
02-ORD-144, p. 3, 03-ORD-207. In its responses to Ms. Chan, the City explained that due to the procedures for handling citations prior to January 1, 2007, and because most if not all citations issued in the past resulted in ultimate dismissal, not all of them may have been retained. It is unclear from the record before us whether the City provided all the written reports of the code enforcement officer for 2006. In its response to this office, the City stated that it believed that it had provided all written reports from the Ordinance Enforcement Officer to the council in 2006. In this regard, the City should promptly determine and affirmatively advise Ms. Chan whether this is, in fact, the case.
Finally, in her letter of appeal, Ms. Chan stated that the City had provided her with copies of only five citations which was "a small subset of the total written for that year as indicated by the Ordinance Enforcement Officers report and statements from the City Attorney."
In its responses, the City stated that it had provided Ms. Chan with all citations in its possession, which the City indicated included at least sixteen citations, but acknowledged that some might be missing. 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.
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested 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.
Caroline Chan
Sherl Fetter, MayorCity of Douglass HillsP. O. Box 43284Louisville, KY 40253-0284
Genon G. Hensley11921 Berry Hill RoadLouisville, KY 40243 Mr. Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 In the City's response provided to this office, Mayor Fetter advised that the City received Ms. Chan's letter on July 23, 2007, and responded to it on July 26, 2007. If such is the sequence of the dates of receipt and response, the City's response would be timely, as it was within three business days of its receipt as required by KRS 61.880(1).