Request By:
Duke Conover
Vernon Hudson
Gorman Bradley, Jr.
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Reidland-Farley Fire Department violated the Open Records Act in the disposition of Paducah Sun reporter Bill Bartleman's March 4, 2009, emailed request for:
All records related to gasoline, kerosene and diesel fuel purchased and distributed at the Reidland Fire Station from Jan. 25, 2009, until Feb. 15, 2009. This includes but is not limited to records showing any policies related to eligibility to obtain fuel, records showing who received fuel and how many gallons, records showing purchases of fuel from Mid West Terminal or any other supplier, records showing reimbursement for use of fuel, and any and all rental fees for tanks or other equipment related to fuel distribution.
For the reasons that follow, we find that the Department did not violate the Act in the disposition of The Paducah Sun's request.
Having agreed to an extension of the agency's response time, The Paducah Sun received a hand-delivered response to its request on March 12, 2009. The Department advised:
. Reidland Farley Fire District did not purchase any gasoline, kerosene and diesel during this event. All fuel was purchased by the McCracken County Fiscal Court. Those records will need to be obtained from the McCracken County Fiscal Court. These documents are maintained by the McCracken County Emergency Management per their Emergency Operations Plan Form ICS-308 Resource Order Form.
. Reidland Farley Fire District was not responsible for policies, eligibility to obtain fuel, how many gallons, records showing purchases of fuel from Midwest Terminal as the fuel was the responsibility of the McCracken County Fiscal Court. These documents are maintained by the McCracken County Emergency Management per their Emergency Operations Plan Annex P- Energy Supply Management and Appendix P-2 Summary of Motor Fuel Control and Distribution Options.
Subsequent events, as documented in The Paducah Sun's letter of appeal, called these statements into question. 1
Sometime after the submission of a second open records request for fuel records, precipitated by the disclosure that responsive records did, in fact, exist on the department's computers, 2 the records were released to The Paducah Sun . The newspaper nevertheless complained that the records were deficient insofar as 206 gallons of fuel were identified as having been dispensed to "RFFD," rather than specifically named individuals or entities, noting that the Department is attempting to obtain affidavits from the recipients of this fuel in order to obtain federal reimbursement.
In supplemental correspondence directed to this office following commencement of The Paducah Sun's appeal, the Department defended its disposition of Mr. Bartleman's request for records relating to the distribution of fuel. The Department advised:
The RFFD's response advised the Sun that the RFFD was not the agency responsible for the referenced activities, and specifically directed the Sun to a different agency the RFFD believed likely to have custody of the requested records. In substance, the response stated in clear and direct terms that the RFFD did not have custody or control over any responsive records and directed the Sun to the public agency it believed to possess such records -- the RFFD did not claim the records were exempted from release or otherwise deny access, it simply said that it did not have custody over the requested records.
With regard to its failure to produce the records that it later produced in response to Mr. Bartleman's March 4, 2009, request, the Department explained:
Although this handwritten fuel distribution log was prepared at the RFFD fire station, it was created by and on behalf of the McCracken County Emergency Management, which had commandeered the facility and its supplies--including gasoline and diesel fuel --as its emergency operations center and a fuel distribution point. Quite simply, neither the RFFD chief nor its records custodian was aware the records of another agency existed on its computer system at the time of its response to the Sun's request; however, these records subsequently were provided to the Sun after their discovery by happenstance. The RFFD accepts responsibility for failing to immediately provide access to the records of a different agency it had no reason to know were stored on its computers.
Because the records were released in response to The Sun's April 2009 request, 3 the Department urged the Attorney General to treat this appeal as moot per 40 KAR 1:030 Section 6. 4
While we do not agree that the issues on appeal from the Department's disposition of The Sun's March 4 request were mooted by the Department's disposition, and ultimate decision to honor, The Sun's April request, we find that the Department did not violate the provisions of the Act in its March 12 response. In so holding, we emphasize that it is not, in general, within our statutory charge to resolve questions of fact or to otherwise act as a trier of fact. The Paducah Sun suggests that the Department knew, or should have known, that "the records existed on a [Department] computer." The Department flatly denies this suggestion, asserting that the records were provided to The Sun "after their discovery by happenstance. " In 96-ORD-70, this office observed:
[T]his office is not equipped to resolve factual dispute [when presented with conflicting factual narratives]. KRS 61.880(2)(a)provides that at the request of a complaining party, the Attorney General shall review the party's request, and the public agency's response, and issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Given this specific statutory mandate, we decline to render a decision on [the factual dispute] .
96-ORD-70, p. 3. Here, as in 96-ORD-70, we make no finding on the factual dispute presented.
The narrow issue thus presented in this appeal is whether the Department violated the Open Records Act in its March 12 response to Mr. Bartleman's March 4 request. Bearing in mind that the newspaper agreed to an extension of time beyond the three day agency response deadline codified at KRS 61.880(1), we find that the Department fulfilled its statutory obligations pursuant to KRS 61.872(4) by advising Mr. Bartleman that it did not maintain responsive records and identifying the agencies that did maintain responsive records. Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." The Department's response was fully consistent with this provision of the Open Records Act.
With reference to The Paducah Sun's request for advisory opinions on a number of related issues, we refer the parties to 01-OMD-175 in which this office declined an agency request for an advisory opinion on an open meetings issue. We reasoned:
Pursuant to KRS 61.846(2), the Attorney General plays a quasi-adjudicative role in open meetings appeals. Therefore, we cannot respond to open meetings questions unless they are presented in a formal appeal. An Attorney General's open meetings decision has the force and effect of law. KRS 61.846(4)(b). The same considerations that prohibit courts from rendering advisory opinions compel us to adopt this policy.
01-OMD-175, p. 7. This analysis applies with equal force to requests for advisory opinions in the open records context. Accordingly, we must decline The Paducah Sun's request pursuant to KRS 61.880(2). These issues may, of course, be raised in a properly presented open records appeal.
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 its letter of appeal, The Paducah Sun references a second emailed request to the Department submitted sometime in April 2009. The Department refused the emailed request, suggesting that the newspaper resubmit its request by U.S. Mail. Neither its emailed request nor its U.S. mailed request are included in the materials attached to this appeal, and any issues relating to the propriety of the Department's position relative thereto cannot be considered. 40 KAR 1:030 Section 1.
The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
2 See note 1, above.
3 See note 1, above. Issues relating to the April 2009 request are not considered in the instant appeal per 40 KAR 1:030 Section 1.
4 40 KAR 1:030 Section 6 provides:
If the 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.