Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Burnside violated the Open Records Act in the disposition of Burnside City Council member Frank DeNiro's April 4, 2012, request to "view most current Burnside water plant plans-drawings and water lines." For the reasons that follow, we find that the City violated the Act.
Mr. Deniro's account of the history of this request, which is not contradicted by anything in the record, begins as follows:
In April 2012 I asked Burnside Mayor Ron Jones to see the City of Burnside Water Plant plans, with no definite response, I made an open records request on 4-4-2012, to view the Water Plant plans.
A few days later I asked for a written response to my request, and was told that the mayor had made and [ sic ] enquiry with the Ky. League of Cities and received an E-mail reply stating that due to Homeland Security Rules I could not see the plans.
Mr. DeNiro has provided a copy of the relevant e-mail exchange between Mayor Jones and the Kentucky League of Cities ("KLC"), which was forwarded to him by KLC Legal Services Analyst Kim Johnson (apparently at Mr. DeNiro's own request) on October 24, 2012: 1
Mayor Jones to J. D. Chaney at KLC, March 27, 2012:
If you would be so kind as to send me a[n] E-Mail with reference to the releasing of our blue prints for our water plant. As you know my administration wishes to comply in every way with the open records law as well as any other laws governing the operation of our town.
J. D. Chaney to Mayor Jones, March 28, 2012:
The blueprints for the utility infrastructure would fall within the exemption in KRS 61.878(1)(m) as a record related to security of the citizens. This means that the city would not be required to disclose the records under an open records request received by any individual. The city could, if it deemed wise, allow the inspection of the records on-site within the city and is not obligated to allow copies, photos, etc. of the documents.
Kim Johnson to Mayor Jones, March 27, 2012:
According to 05-ORD-175 the city will have to give a detailed explanation of "reasonable likelihood of threatening the public safety by exposing a vulnerability," if they plan to deny access to these records. I believe this is going to be very difficult seeing the requestor is a council member.
Mr. DeNiro continues:
Two weeks later in a City Council work session, the Mayor [s]tated that at that time he had not found the plans.
In the October City Council Meeting I brought up the issue, the Mayor stated that the attorneys instructed him to not allow me to see the plans. I spoke to the City Attorney Billy Hopkins and he said he didn't know what the Mayor meant and that I should write to the Attorney General's Office.
Mr. DeNiro's appeal, dated November 26, 2012, was received by this office on December 4, 2012.
On December 11, 2012, Burnside City Attorney D. Bruce Orwin responded to this appeal. After clarifying that Billy Hopkins was not the City Attorney but merely assisted in handling City legal matters, Mr. Orwin wrote:
The mayor of the City of Burnside informs me that neither the City of Burnside nor any of its departments have copies of these plans for the records requested by Mr. DeNiro.
The mayor tells me that even if the city had the requested plans for the water plant and distribution system, that the city would decline to provide the information requested by Mr. De[N]iro pursuant to KRS 61.878(1). Although the mayor believes that the request made is exempt from an open records request, if such a request is allowed or ordered, it should certainly be done to insure that the plans are retained in city offices and that no copies of these plans be made or distributed because of security concerns.
We find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records. KRS 61.880(1) requires a public agency to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and [to] notify in writing the person making the request, within the three (3) day period, of its decision." The City never gave Mr. DeNiro a written response. Instead, he received an alternating pair of excuses. First he was told that the KLC had advised the mayor not to let him see the plans; then he was told that the mayor had not found the plans. Finally, six months later, he was told that "the attorneys instructed" the mayor not to let him see the plans. It is clear from the e-mails that the KLC attorneys had instructed no such thing.
By failing to respond in writing, the City committed a procedural violation of the Open Records Act. Furthermore, by the City's misrepresenting the advice received from KLC, "the intent of KRS 61.870 to 61.884 [was] subverted by an agency short of denial of inspection, [through] the misdirection of the applicant," in effect denying Mr. DeNiro's request through inaction and misstatement. KRS 61.880(4). We therefore treat the City's conduct as a substantive denial of inspection.
In response to Mr. DeNiro's appeal, this office is now told that, according to the mayor, "neither the City of Burnside nor any of its departments have copies of these plans," but even if it did, they would be exempt from inspection or, if not from inspection, at least from copying, due to "security concerns." 2 From the correspondence provided by Mr. DeNiro, we imagine that the City probably means to allude to KRS 61.878(1)(m). Yet the City does not cite this exception, nor does it even attempt to establish that subsection's requirement that there be "a reasonable likelihood of threatening the public safety" if the records are disclosed.
The City, however, has failed more fundamentally to discharge its obligations under the Act, by failing to respond in writing pursuant to KRS 61.880(1), at which time it should have articulated any substantive objections to disclosure of the records: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." At no time did the City either make the required written response or justify the withholding of any records under a specific provision of KRS 61.878.
Still, the City's primary response to this appeal is that the City is not in possession of the records. Although the mayor, in his correspondence with KLC, did not mention whether the City in fact possessed the records, he did refer to them as " our blue prints for our water plant" (emphasis added). This language indicates that both the water plant and the plans are regarded as belonging to the City. The unanswered question, then, is what the City has done with those plans.
If the City has, for some reason, placed its records in the hands of a third party, that does not put the records outside the reach of the Open Records Act. 04-ORD-123. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." Id. (quoting unpublished disposition in City of Louisville v. Brian Cullinan, Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). A third party authorized to possess of a city's records "holds [them] at the instance of and as custodian on the city's behalf, and ? the city's position that it has no control over these records is without merit." 04-ORD-123. If records are in active use, in storage, or otherwise unavailable, a public agency may take more than the standard three business days to produce them, if necessary, provided "a detailed explanation of the cause is given for further delay." KRS 61.872(5). But the agency may not simply refuse inspection on that basis.
On the other hand, if the City has simply misplaced its records, this would not substantively violate the Open Records Act per se, because a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the documents would have been lost by the public agency, which would create a records management issue.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
In conclusion, we have insufficient information to determine why the City is not in possession of these records relating to its water plant. If the City has placed its records in the custody of a third party, denial of inspection on that basis would violate the Open Records Act. If, however, the City has lost the records, it has frustrated the purpose of the Open Records Act and may be in need of records management assistance. We are therefore referring the matter to the Department for Libraries and Archives to render any needed services or take other action as it may find appropriate.
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 proceedings.
Distributed to:
Councilman Frank DeNiroHon. Ron JonesD. Bruce Orwin, Esq.
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