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 Butler County Fiscal Court violated the Open Records Act in the disposition of Robert D. Cron's October 5, 2009, request to inspect various financial and operational records maintained by the Fiscal Court. For the reasons that follow, we find that the Fiscal Court violated KRS 61.880(1) in responding to Mr. Cron's request. Additionally, we find that the Fiscal Court's inability to produce records responsive to portions of his request suggests inadequate recordkeeping practices but does not constitute a violation of the Open Records Act inasmuch as it cannot produce records that do not exist.
In his hand-delivered October 5 request, Mr. Cron asked to inspect magistrate expense reimbursement records for January 1, 2007, through September 2009, magistrate health insurance and retirement records, and time records verifying that each magistrate works one hundred hours every month. On the same day, Butler County Judge/Executive David Fields responded in writing to Mr. Cron advising him that the Fiscal Court was "unable to fulfill [his] request" because the school system's fall break began on October 5, and both the County Attorney and the County Finance Officer were out of town. Judge Fields indicated that upon the County Attorney's return, the Fiscal Court would "seek his advice about [the] request." Shortly thereafter, Mr. Cron initiated this appeal focusing on the absence of legal authority wherein "it states an agency can refuse to comply with a written open records request because two people are out of town" or otherwise indefinitely postpone access to public records.
In supplemental correspondence directed to this office, Butler County Attorney Richard J. Deye described the particular hardships the Fiscal Court has experienced in responding to open records requests as a consequence of its staff size and the volume of requests received. He explained that he asked all county agencies to refer their open records requests to him for disposition in the hope of avoiding open records appeals. Acknowledging that his absence precluded a written response to Mr. Cron's request within three business days, he maintained that Judge Fields' October 5 letter was a request for an extension of time for agency response and not a denial. Mr. Deye noted that the Fiscal Court retrieved all existing responsive records immediately upon his return and made them available for Mr. Cron's inspection. On October 19, 2009, Mr. Cron notified this office that he had, in fact, inspected the records compiled by the Fiscal Court but continued to object to Judge Field's procedural disposition of his request, to deficiencies in some of the records produced, and to the nonexistence of other records requested. The Fiscal Court responded that the latter issues are beyond the scope of an open records appeal. While we concur with the Butler County Fiscal Court in the view that issues relating to the adequacy of financial recordkeeping for audit purposes are not justiciable in an open records appeal, we address the procedural irregularities that are properly before us.
Regardless of whether he has been officially designated, and is identified on the Fiscal Court's KRS 61.876(1) open records rules and regulations as such, Mr. Deye acts as Butler County's official custodian of records per KRS 61.870(5), 1 KRS 61.872(2), 2 and KRS 61.880(1). 3 As this office observed in 98-ORD-20:
When read together, these provisions mandate the appointment of an official custodian of records whose function it is to process all open records requests which the agency receives. As we noted in 93-ORD-134, "we see nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy insures uniformity and adherence to the law." 93-ORD-134, p. 10, 11. However, in adopting this policy, "it is incumbent on [an agency] to streamline its policies by educating its employees . . . on the importance of providing a timely response, as well as timely access to records." 95-ORD-105, p. 5.
98-ORD-20, p. 3; accord, 04-ORD-106; 05-ORD-211.
This office has repeatedly stated that the three day period of limitation for agency response codified at KRS 61.880(1) cannot be extended to accommodate the schedules of agency staff. As recently as January and August of this year, the Attorney General determined that two public agencies violated KRS 61.880(1) in failing to produce nonexempt public records for inspection owing to the absence of the agencies' records custodians. Thus, in 09-ORD-018 we observed:
The absence of the City's records custodian did not toll its response time. The parties agree that Ms. Clark called the City Clerk on December 19 and was advised that the clerk "was not in the office." The City maintains that she was further advised that the City Clerk would return on December 22. Nothing in the Open Records Act permits an agency to postpone release of public records because its records custodian is unavailable. On this issue, the Attorney General has opined:
09-ORD-018, pp. 3-4, citing 00-ORD-226, p. 2; see also 06-ORD-131, pp. 4-5; 09-ORD-140. Based on these authorities, we find that the Butler County Fiscal Court violated KRS 61.880(1) in failing to properly respond to Mr. Cron's request within three business days. Because Judge Fields' October 5 letter did not satisfy the requirements of KRS 61.872(5) , 4 it cannot be properly characterized as a request for an extension of time for Fiscal Court response. While it may not have been intended to constitute a denial of Mr. Cron's request, it was procedurally deficient. Notwithstanding its limited staff, it is incumbent on the Butler County Fiscal Court to designate an alternative records custodian to process open records requests in a timely fashion in Mr. Deye's absence.
As noted, upon inspection of the records compiled by the Butler County Fiscal Court in response to his request, Mr. Cron identified a number of deficiencies and, in some cases, omissions. With regard to the latter, this office has long recognized that a public agency cannot produce for inspection public records that do not exist. Thus, in OAG 82-74 (overruled on other grounds in OAG 82-277), the Attorney General opined:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-74, p. 3. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed.
The Fiscal Court maintains that it has produced all responsive records in its custody. Nevertheless, Mr. Cron questions the paucity of records produced and the adequacy of its recordkeeping practices in light of a September 2008 Owen County Grand Jury Report in which three criminal indictments were returned against Owen County officials based on a 2007 audit conducted by the Office of the State Auditor. The latter issue is, in fact, beyond the scope of the Open Records Act. We therefore find that the inability of the Fiscal Court to produce these records did not constitute a violation of the Open Records Act and leave the remaining questions Mr. Cron raises to the appropriate agencies.
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 KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]"
2 KRS 61.872(2) states that "[t]he official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency. "
3 KRS 61.880(1) provides that the agency's response to a request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
4 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In its October 5 response, the Fiscal Court does not assert that the requested records "are in active use, in storage, or not otherwise available," nor does it provide a detailed explanation of the cause for delay, or state the place, time, and earliest date on which the records will be available for inspection.