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 Hopkins County-Madisonville Public Library Board subverted the intent of the Open Records Act, short of denial of inspection, by failing to produce in a timely fashion records responsive to Messenger lead reporter, Lamar Bryan's February 8, 2012, open records request. We find that the Board's excessive delay in producing the records identified in Mr. Bryan's request subverted the intent of the Act, within the meaning of KRS 61.880(4), 1 and that its inability to locate and retrieve the records is indicative of records mismanagement warranting intervention by the Kentucky Department for Libraries and Archives under authority of KRS 61.8715. 2
The records to which Mr. Bryan sought access related generally to renovations for a new library facility and included:
. any bid or contract for work/services done by Vista Mechanical, Inc.;
. logs, timesheets, or other records maintained by Dr. Bill Smith, the building committee, or library board that track by date and/or by contractor the work being done at the site;
. legal advertisements seeking bids for work/services at the site; and
. invoices received after January 31, 2013, for work, professional services, and materials at the site.
After he was advised that the board's president, Marcella Davis, did not receive his February 8 request, Mr. Bryan resubmitted his request on February 15 and was notified by Ms. Davis that the records would be disclosed "within a reasonable time frame." Upon further inquiry, Ms. Davis informed Mr. Bryan on February 19 that it "may take a few days" for the project manager to gather the records. One week later, Mr. Bryan contacted Ms. Davis by telephone but Ms. Davis "provide[d no] specifics, other than to say the request was being processed. " Frustrated by these delays, he submitted this appeal on March 8, 2013.
In correspondence directed to this office after Mr. Bryan submitted his appeal, board secretary Carolyn Ferrell maintained that because the records identified in Mr. Bryan's request were not "'prepared, owned, used, in the possession of or retained by' the Public Library," they could not be "produced immediately by the board in response to an open records request." 3 She explained that the Library Foundation "reviews all invoices and makes the payments to contractors for services rendered," but indicated that a board representative "will contact the contractor managing the project and the president of the foundation . . . and ask that these documents be forwarded to Mr. Bryan as soon as possible."
On appeal Mr. Bryan questioned the board's position, noting that legal advertisements, if they exist, should be available for immediate inspection and that invoices and project bids responsive to an earlier open records request he submitted were produced "within a week." He disputed the board's characterization of its role in the project as a limited one, explaining that the building committee and/or its chairman:
. determined the scope of the renovation;
. hired a contractor to act as project manager;
. hired an architectural firm to do the floor design;
. approved contractual agreements with subcontractors;
. formulated a budget for the second phase of the project;
. reviewed and approved invoices before forwarding them to the library foundation for payment; and
. negotiated a $ 250,000 bank loan for the project. 4
It was his position that records relating to these actions were "used" by the board and therefore public records within the meaning of KRS 61.870(2).
On April 13, 2013, Ms. Davis transmitted to this office a copy of a letter addressed to Mr. Bryan, apparently responding to an April 2 request for additional records, in which she stated:
The requested documents are held by Madisonville Contractors, Inc., who has been advised by their attorney to release no further documents until the outstanding payments for renovation work have been made.
We will submit the relevant documents to the Attorney General's office (log number 201300078) and to The Messenger when they are available to the board.
We received no further correspondence concerning this matter.
To begin, the records at issue in this appeal are public records, within the meaning of KRS 61.870(2), even if they are maintained offsite, because they are prepared, owned, and used at the instance of the board. 5 No contractor to a public agency may hold hostage public records documenting public funds expended and public funds owed on a public project because the contractor disputes payment under the contract. "In the end," this office observed as recently as January 2013, "it is the nature and the purpose of the document, not the place where it is kept that determines its status as a public record. " 13-ORD-003, p. 5 (citing 04-ORD-123, unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001303-MR (Ky. App. 1999) and 66 Am.Jur.2d Records and Recording Laws § 3 (1973)). Like the billing records at issue in Cullinan , the records in dispute are routine contractual and financial records without the benefit of which the board "would not have been authorized to pay money to the contract[or]." Cullinan at 4. "They are essentially the [board's] documents . . . ." Id. If, in fact, Madisonville Contractors, Inc., holds the records responsive to Mr. Bryan's request, it does so "at the instance of and as custodian on the [board's] behalf, and . . . [any suggestion that the board] has no control over these records is without merit." Id. Under no circumstances may a public agency surrender control of its records to a third party and thereby abrogate its duties under the Open Records Act. To hold otherwise would promote willful concealment of public records.
Where, as here, the records to which access is sought, are "in active use, in storage, or otherwise unavailable," KRS 61.872(5) requires public agencies to "immediately notify the applicant and . . . designate a place, time, and date for inspection of the public records, not to exceed three 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. " The board failed to discharge this statutory duty in responding to Mr. Bryan's original request and to his subsequent inquiries into the status of his request. Its assertion that his request would be honored "within a reasonable time, " "was being processed, " and would be honored "as soon as possible" did not satisfy KRS 61.872(5) especially insofar as the board did not provide a detailed explanation of the cause for delay or "firmly commit to releasing the records . . . on or before [a stipulated] date." 13-ORD-004, p. 3 citing 12-ORD-228 and 12-ORD-097. Such explanations as were offered were factually inconsistent, resulting in a delay of two months, and Mr. Bryan has yet to receive the records identified in his request.
Ultimately, this delay was unwarranted. We therefore find that the Hopkins County-Madisonville Public Library Board subverted the intent of the Open Records Act, short of denial of inspection, by indefinitely postponing access to records relating to the renovations for a new library facility. Accord, 13-ORD-004. In the latter open records decision, this office determined that the parameters of the request that prompted the unwarranted delay "were not broad and the demands associated with . . . [production] were correspondingly negligible." Id. at 3. Citing
Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008), we rejected the agency's reliance on "inefficiency in its recordkeeping system to thwart . . . a proper open records request." We reach the same conclusion in this appeal. The board cannot postpone access to nonexempt public records, or otherwise avoid its duties under the Open Records Act, by asserting that it does not maintain custody of the requested records. Here, as in 13-ORD-004, it is incumbent on the board to retrieve the records and "to make immediate arrangements for [Mr. Bryan] to inspect and/or obtain copies of" those records.
KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." Failure to maintain custody and/or control of public records documenting the renovation of a new library facility raises serious records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted. Accord, 13-ORD-003.
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.
Distributed to:
LaMar BryanMarcella A. DavisCarolyn FerrellBarbara Teague
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
3 Ms. Ferrell's description of the sequence of events surrounding Mr. Bryan's request does not comport with the dates appearing on the correspondence exchanged by the parties or the content of that correspondence.
4 In support, Mr. Bryan provided this office with copies of invoices obtained from the board in response to his earlier request that are addressed to the chairman of the board's building committee, Dr. William F. Smith, and signed or initialed by Dr. Smith.
5 KRS 171.640 requires the head of each state or local agency to:
cause to be made and preserved records containing adequate documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Such documentation shall be created, managed, and preserved in accordance with standards, rules, and regulations prescribed by the department under the provisions of KRS 171.410 to 171.740.
(Emphasis added.)