Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Elsmere violated the Kentucky Open Records Act in failing to provide Terry Whittaker with "timely access" to various records that she requested to inspect, and subverted the intent of the Act within the meaning of KRS 61.880(4), by imposing unreasonable restrictions on access in the ultimate disposition of her written request. In accordance with 08-ORD-183 and 08-ORD-094, this office finds that insofar as the City failed to both issue a sufficiently detailed written response and make the records available for Ms. Whittaker to inspect within three business days or comply with KRS 61.872(5), the City violated the Act from a procedural standpoint. However, in ultimately advising Ms. Whittaker that certain records which are responsive to her written request are maintained by the Elsmere Police Department, and therefore will be available for inspection at that agency instead of the City Building, the City did not subvert the intent of the Open Records Act within the meaning of KRS 61.880(4). Nor did the City err in denying access to nonexistent records; the City has now affirmatively indicated that certain records do not exist and has provided a credible explanation for the lack of such records.
By letter directed to City Clerk/ Records Custodian Holli Harrison via facsimile on June 13, 2008, Ms. Whittaker asked to review the following:
1. June 2005-December 2007 life/ADD/STD insurance invoices
2. March 2006-December 2007 dental insurance invoices
3. May 2006-December 2007 medical insurance invoices
4. Documentation authorizing any and all salary changes or title changes for [Officer] McCarthy from January 2007 through June 2008
5. Guidelines or policies regarding operating, servicing, refueling or repairing fleet vehicles
6. License requirements for driving fleet vehicles
7. Insurance company prerequisites for coverage of employees operating fleet vehicles
8. Accident, damage or maintenance reporting requirements for fleet vehicles
9. Any documentation submitted for payroll purposes regarding the fringe-benefit taxation of income for each individual employee's fleet vehicle use during the 2006 and 2007 calendar years. Please include the W-2 Summary statements provided to the IRS for 2006 and 2007.
On June 20, 2008, Ms. Whittaker called Ms. Harrison to check on the status of her written request and was advised that the records would be available to inspect on June 23, 2008; Ms. Whittaker then asked Ms. Harrison to provide this information in writing.
By letter of June 20, 2008, Ms. Harrison advised Ms. Whittaker that she received the request on the morning of Monday, June 16, 2008. Having apologized for the delay in responding, Ms. Harrison further advised that the "first three of the nine items requested" would be available for Ms. Whittaker to review on Monday, June 23, 2008, but the other six items Ms. Harrison had "placed inquiries with the appropriate individuals" regarding and planned to contact Ms. Whittaker "when the documents are ready." On June 27, 2008, Ms. Whittaker contacted Ms. Harrison, acknowledging receipt of Items 1 and 2 in their entirety as well as receipt of the 2007 W-3 statements in partial satisfaction of Item 9, and further advising that 14 days had passed since the date of her original request and she had "received no further letter or call indicating the availability of these records since your original reply on Monday, June [20], 2008." Accordingly, Ms. Whittaker asked the City to either "produce the records, or a reason for delay and date the records will be available," in accordance with the Act.
By letter dated August 6, 2008, Ms. Whittaker initiated this appeal from the "refusal of the [C]ity [C]lerk of Elsmere to respond to an open records request in a timely manner and to permit me to inspect the records requested." According to Ms. Whittaker, she "went to the offices of the [C]ity at about 11:00 a.m. on June 23, 2008," to inspect the records, but the City Clerk "was only able to produce a few of the documents from items 1 and 2" of the request. After searching for a few minutes, the City Clerk "indicated she would look for the other items and get back to me." When Ms. Whittaker arrived for a "council caucus meeting" on the evening of July 1, 2008, "a stapled set of copies" was laying in her seat in the "council chambers." Because the City Clerk did not provide her with an opportunity to inspect the documents "to determine the source of information and validity," and the copy of the "FYE 2008 pay chart does not correspond with the document" she was provided with when working on the "FYE 2008 city budget as an Elsmere City Council Member," Ms. Whittaker asks the Attorney General to review the actions of the City.
Upon receiving notification of Ms. Whittaker's appeal from this office, Elsmere City Attorney Paul R. Markgraf responded on behalf of the City, noting that Ms. Whittaker is a member of the Elsmere City Council, "but apparently has made the underlying records requests as a private citizen." As a threshold matter, the City acknowledges that "its initial response was one (1) day late. Since the request was received on Monday, June 16, 2008, the response should have been made by Thursday, June 19." 1 However, documents responsive to Items 1 and 2 were produced for Ms. Whit[t]aker on June 23. Ms. Whittaker was "orally informed that remaining items could not be located at that time and Ms. Whittaker was advised of this by facsimile letter dated June 27, 2008. . . . A summary of what was requested under Item 3 was reproduced (without cost to Ms. Whittaker) and received by her on July 1, 2008, according to her handwritten notes." In addressing Items 3-9, Mr. Markgraf notes that the City responded to Ms. Whittaker's letter of June 27, 2008, on the same date. 2
In addition, the City provided Ms. Whittaker with copies of documents on July 1, 2008, which Ms. Whittaker and Ms. Harrison both confirm, and her "silence following receipt of these documents (until the present filing) was construed by the Clerk" to mean that Ms. Whittaker was satisfied with the documents provided. According to Mr. Markgraf, the copies were given to Ms. Whittaker at no charge "in an attempt to fully comply with her request[,]" and she did not reiterate her request to view the original documents nor did she indicate the materials were otherwise insufficient. Mr. Markgraf respectfully submits that Ms. Whittaker should have notified the City Clerk "if she believed that the documents produced were insufficient or that she wished to view the original copies. The record fails to document any such request. Ms. Harrison states under oath that no such requests were made [affidavit is attached]." If the instant appeal is to be construed as such a request, Ms. Whittaker "is invited to make an appointment to review the underlying documentation during normal business hours. Assistant Clerk Ryan will need to reassemble the documentation after consultation with Clerk Harrison."
By letter dated August 19, 2008, Ms. Whittaker challenges many of the City's assertions, initially observing that where she has not addressed a specific issue, "it is because I feel the Open Records Act speaks for itself." As of that date, Ms. Whittaker had not "been provided the opportunity to inspect the records" as requested. In her view, "a timely response would have been to inspect the records on or about June 18, 2008[,]" given that her original fax was received at "3:53 p.m. on Friday, June 13, 2008 - clearly a half hour prior to closing." With regard to the staffing issues facing the City, Ms. Whittaker argues that "poor planning" has resulted in both residents and elected officials "being asked to wait weeks and even months for the completion of records requests while the Administration implies the requests are wanton." According to Ms. Whittaker, she was "only provided access to a few of the insurance invoice records," and the remaining documents "were provided as typed lists." In support, Ms. Whittaker references Items 10-12 on the "Affidavit he notarized" and the "first page of Exhibit B" on which only the first two Items of her written request are marked. Having outlined the reasons for the request(s), none of which are relevant in our legal analysis of the request in dispute, Ms. Whittaker notes that as the "City Clerk/ Treasurer/Records Custodian, Miss Harrison should know better than to create documents or provide unverified documents from another source. As the City's Treasurer, Miss Harrison should have these documents in her control."
In addressing the "supposed 'untimely response,' the [C]ity stands by its statement" that Ms. Whittaker's initial "facsimile letter was not received until Monday morning, June 16." Needless to say, the City "cannot control the time which may be set on the sender's facsimile machine[,]" and the attached fax "is merely a copy of the facsimile letter submitted by Ms. Whittaker[,]" not proof that it was received at 3:53 p.m. on Friday, June 13. "The simple response of the [C]]ity in the present appeal is that Ms. Whittaker never indicated to City Clerk Holli Harrison that the documents supplied to her at the [council] caucus meeting in July were insufficient or that she still wished to review the original documents. The copies were provided as a courtesy to her." Accordingly, the Assistant City Clerk/ Typist "has been instructed by the City Administration to assemble the documentation for Ms. Whittaker's inspection" and she will be notified "in writing when this documentation is available."
In a letter directed to Ms. Whittaker on August 28, 2008, a copy of which Mr. Markgraf forwarded to this office, the City advises that the records "will be available for you to review on Tuesday, September 2, 2008 at 3:00 p.m." 3 To clarify the records implicated, Mr. Markgraf notes that Ms. Whittaker has acknowledged receiving the documents responsive to Items 1 and 2 of her written request. 4 With regard to Item 3, Mr. Markgraf observes that Ms. Whittaker was "provided a summary of the amounts paid. Ms. Ryan is doing her best to locate the original invoices. We expect that if they are within the custody of the Clerk's office, they will be available for inspection on September 2." Items 4 and 5 "will be available at the Elsmere Police Department" for Ms. Whittaker to review "no later than Tuesday, September 2, 2008 at 3:00 p.m." In addressing Items 6-8, Mr. Markgraf asserts that Ms. Whittaker has "already been provided with copies of these documents; the originals will be available for Ms. Whittaker's review to ensure their accuracy. "If the originals are not at the City Building, they will be available for inspection at the Police Department." Regarding Item 9, the City asserts that no such records exist. 5
In the last of the voluminous correspondence resulting from this appeal, Ms. Whittaker challenges the City's final response. In particular, Ms. Whittaker takes issue with being "directed to go to a location not the administrative offices of the City" in order to view documentation responsive to Items 4-5. Regarding Item 9, Ms. Whittaker did "not argue the merits of whether our staff, law enforcement officers or others, are complying with internal or external regulations." In response to Ms. Whittaker's first two complaints, Mr. Markgraf quotes the language of KRS 61.872(4) and (5), and then observes that as Ms. Whittaker "well know[s] as a member of [C]ouncil, police records are maintained at the Police Department; this is why you were directed to that facility." Regarding Ms. Whittaker's last assertion, the City maintains "that such records do not exist and there are no such records for you to inspect. " Mr. Markgraf was "explaining why they do not exist to clarify the issue."
As a threshold matter, the somewhat contentious nature of the relationship between the parties does not have any bearing on the outcome of this appeal. In rendering a decision under the Open Records Act:
. . . the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, "we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." 93-ORD-15, p. 6.
We urge the parties to bear this observation in mind in future open records exchanges.
If sufficient evidence exists that the [agency] willfully concealed a public record, . . . that evidence should be taken to the appropriate prosecutorial authorities. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. The Attorney General is not, however, authorized to render a decision on this question[.]
96-ORD-185, pp, 4-5. Simply stated, "this office is not empowered to resolve a 'swearing contest' between the parties." 98-ORD-146, p. 6. Rather, the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2)(a); the Attorney General is not authorized to deviate from that statutory mandate. 6
That being said, this office finds that regardless of whether the City received Ms. Whittaker's original written request on June 13, 2008, or June 16, 2008, a factual issue which cannot be conclusively resolved, the City failed to comply with KRS 61.880(1). More specifically, the City did not issue a written response within three business days, and either produce the records in their entirety for inspection or cite the statutory basis for withholding some or all of the records, in accordance with KRS 61.880(1); alternatively, the City did not invoke KRS 61.872(4) or (5), the only exceptions to KRS 61.880(1), nor did the City provide a detailed explanation of the cause for delay in providing access and the specific date on which the records would be available. Although the City acknowledges on appeal that its original response was untimely, disputing only the margin by which that is true, neither the June 20, 2008, response nor the subsequent response(s) contain the requisite specificity, including the response to Ms. Whittaker's appeal. However, the law in this area is well-established, this office recently had occasion to offer guidance on such issues to the City in the context of a separate but related appeal, the record is devoid of evidence to suggest bad faith, and the City has acknowledged the procedural irregularities to an extent; accordingly, this office declines to belabor the point on the facts presented. With regard to application of KRS 61.880(1) and KRS 61.872(5), the analysis contained in 08-ORD-094 is controlling; a copy of that decision is attached hereto and incorporated by reference, along with 08-ORD-183 (holding that Elsmere Police Department failed to provide Ms. Whittaker with "timely access" to records), which the City may wish to review in order to avoid future violations of a procedural nature. Although the City is faced with staffing issues which undoubtedly make complying a serious challenge, and Ms. Whittaker is uniquely aware of those issues, it is "incumbent on [the City], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6.
In light of this determination, the question becomes whether the City subverted the intent of the Act within the meaning of KRS 61.880(4) in the final disposition of Items 4-8 of Ms. Whittaker's request. With regard to Items 4-5, Ms. Whittaker is essentially arguing that the Elsmere Police Department does not constitute a suitable facility for inspection of the records maintained there; Ms. Whittaker does not cite authority for the implicit assertion that a city clerk is required to have physical custody of police records nor to support a claim that only the City Building is a suitable facility in which to maintain police records, presumably because no such authority exists. In construing KRS 61.872(1), pursuant to which "[a]ll public records shall be open for inspection" other than as provided in KRS 61.878(1), and "suitable facilities shall be made available by each public agency for the exercise of this right," this office has recognized that while a requester "cannot expect the agency to provide facilities offering the enforced silence of a library, he may certainly expect that those facilities will afford him adequate opportunity to inspect the records without interruption, and without harassment." 93-ORD-39, p. 3. As in "all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." 98-ORD-39, p. 6. On the facts presented, a lengthy analysis is unwarranted; this office finds nothing unreasonable in the City's offer to make records which are responsive to Items 4-5 of the request but are in the physical custody of the EPD available for inspection at that agency. 7 If anything, the City substantially complied with KRS 61.872(4).
Turning to Item 9, the analysis contained in 07-ORD-190, a copy of which is attached hereto and incorporated by reference, is controlling. 8 As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. Id., p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist as the City has twice asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought when KRS 61.8715 took effect on July 15, 1994. In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), a public agency must offer some explanation for the nonexistence of the requested records at a minimum. See 04-ORD-075. Although the City erred in failing to initially advise Ms. Whittaker that no additional records exist which are responsive to Item 9 of her written request, Mr. Markgraf has now affirmatively indicated as much and has explained why; nothing more is required. To hold otherwise would result in the City "essentially hav[ing] to prove a negative" in order to refute Mr. Whittaker's claim that such records exist. 07-ORD-190, p. 7. In the absence of the requisite prima facie showing, this office must affirm the City's denial of Ms. Whittaker's request in accordance with
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188 and 07-ORD-190.
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 While admittedly not an excuse, the City also notes that "the City was operating without an Assistant Clerk/ Typist at this time. Jennifer Megerle had resigned, effective May 16, 2008 and Clerk Holli Harrison was the sole employee at the City Building until [Jessica] Ryan was hired in July 2008." As a member of City Council, Ms. Whittaker "was fully aware of the staffing problems facing the [C]ity and the effect that her numerous open records requests" would have upon the staff.
2 A copy of that letter is attached to Mr. Markgraf's response. At that time, Ms. Harrison advised Ms. Whittaker that she had "received documentation from Chief Greene and our insurance agent, Chuck Honkomp and I am reviewing the documents to see if they sufficiently meet your requests. I regret the delay in preparing these records but there have been several issues that have arisen that have required my immediate attention and prioritization."
3 In construing KRS 61.872(3)(a), this office has consistently recognized that any attempt to limit the period of time in which a requester may inspect public records places "an unreasonable and illegal restriction" upon the requester's right of access. 02-ORD-094, p. 4.
4 With regard to any documents to which Ms. Whittaker has already been provided access, related issues are moot per 40 KAR 1:030, Section 6, which provides that 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.
5 According to Mr. Markgraf, Sergeant Todd Cummings explained to Ms. Whittaker that "the use of police cars for personal matters (home fleet vehicles) is specifically exempted under the Internal Revenue Code." Enclosed with Mr. Markgraf's response are pages 18-19 of IRS Publication 15-B "which clearly states that law enforcement vehicles are specifically exempt. This is set forth in 26 USC 132 and 26 CFS 1.274-5T."
6 On a related note, the Attorney General has often 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. . . . Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-061, p. 2, citing OAG 89-81, p. 3 (emphasis added); See also 03-ORD-204. Similarly, the Attorney General has long recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3.
7 With regard to "suitable facilities," the parties may wish to review 02-ORD-094, a copy of which is attached hereto and incorporated by reference.
8 Also attached is a copy of 07-ORD-188 (In re: Kurt Lowe/Environmental and Public Protection Cabinet) upon which this office partially relied in resolving the issues presented by the subsequent appeal (In re: Kurt Lowe/Kentucky Personnel Cabinet).