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 Spencer County Property Valuation Administrator (PVA), Kim Stump, violated the Open Records Act in the disposition of four (4) requests 1 made by attorney Kipley J. McNally in connection with a real property assessment dispute involving his client, Taylorsville Lake Marina, Inc., which eventually led to litigation between the parties. For the reasons that follow, we conclude that one of the four dispositions violated the Act in part.
Mr. McNally initiated his combined appeal to the Attorney General on June 25, 2013, and Ms. Stump sent a combined response on July 3, 2013. For purposes of organization, we will address the four open records requests individually.
1. Request dated December 18, 2012; received December 20, 2012
In his first request, Mr. McNally asked for "copies of all documents contained in the property assessment filed [ sic ] for the above-referenced Taxpayer [Taylorsville Lake Marina, Inc.] for the assessment date of January 1, 2012." In response, he received printouts of two "property cards" from the assessment file in the PVA's computer system. Ms. Stump explains:
Our office does not have hard copy files for any properties, thus the information provided [from the computer record] would be considered all that was contained in the property assessment file.
In the documentation submitted to the Attorney General's office in his complaint, Mr. McNally has included the 2012 Tangible Personal Property returns for Taylorsville Lake Marina. These returns were not included in my response to Mr. McNally as they do not pertain in any way, to the assessment placed on real property. The value reported in the Tangible Personal Property returns were [sic] reported by the taxpayer. The PVA does not place value on tangible personal property, nor does the PVA fill out the form, and these values were not in question in the real property assessment dispute. If Mr. McNally would like copies of the returns already in his possession, I will be happy to provide them.
The PVA evidently considers the information contained in the computer system to constitute the "file" for a real property assessment, and that information was provided to Mr. McNally for the subject property.
We note that to whatever extent the PVA might maintain "hard copy" records grouped by property that relate to assessments, those groups of documents would come fairly within the description of a "property assessment file." 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). Nevertheless, since we have no basis for refuting the PVA's representation that records are not kept in such a manner, we are unable to find a violation of the Open Records Act in the disposition of this first request.
2. Request dated January 2, 2013; received January 3, 2013
Mr. McNally's second request asked for copies of the following: 2
[A]ll documents contained in your files related to, used for, or relied upon in making the property assessment for the above-referenced Taxpayer for the assessment date of January 1, 2012, including (without limitation):
In response, the PVA states that she provided a copy of the 2012 tax notice, an "Independent Auditor's Report," a balance sheet for assets, an "Independent Accountant's Compilation Report," a profit and loss statement, a letter from Bennett & Co. CPA, another balance sheet, and a letter from "MDI" to Javan Montgomery (president of Taylorsville Lake Marina, Inc.).
Mr. McNally claims that this response was "incomplete" because at an "informal conference" on May 7, 2013, he saw Ms. Stump in possession of a "file folder that was approximately two (2) inches thick," which Mr. McNally took to be a tax assessment file that had never been provided to him. Ms. Stump states with regard to this folder:
He did not ask to see this file, nor was it an assessment file. This file contains documents previously given to Mr. McNally per Open Records Requests, legal filings regarding the lawsuit, as well as correspondence between my attorney and myself regarding this lawsuit.
We have no basis on which to dispute the PVA's explanation of what the folder contained, and consequently we conclude that no further records in fact existed which were responsive to Mr. McNally's second request. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).
Mr. McNally further argues that the response should have included an e-mail from David Gordon, Executive Director, Office of Property Valuation, Department of Revenue, dated July 3, 2012. Ms. Stump contends that this e-mail was not within the scope of the request because Mr. McNally did not ask for correspondence between the PVA and the Department of Revenue. The request, however, was not limited to the specific categories of records named. Rather, it asked for all documents in the PVA's files "related to, used for, or relied upon in making the property assessment."
Since the relation of the e-mail to the property assessment is in dispute, we quote the body of the message in full:
On June 28, 2012, Wayne Gunnell and I met with Mr Javan Montgomery, owner of the Taylorsville Lake Marina. Mr Montgomery was concerned because his assessment was raised from $ 1,000,000 to $ 3,000,000 in 2012. He spoke with you on May 8, 2012, and he indicated he would provide you with additional information. He did not contact you before the end of the Inspection period, but came back in on June 7. At this time, he still did not provide any of the requested information, but provided an estimate for hail damage that was incurred after January 1, 2012.
Mr Montgomery said he had been waiting for paperwork from you as stated on the assessment notice ("After conference with the PVA you will be given paper work that must be filed with the Spencer County Clerk no later than 4:00 PM Tuesday, May 22, 2012."). He was not given this paperwork as he did not return within the inspection period.
Because of Mr Montgomery's confusion and [ sic ] at the request and the desire of the PVA to settle this on a fair and equitable basis ("...The Department of Revenue is encouraged to settle controversies on a fair and equitable basis and shall be authorized to settle tax controversies based on the hazards of litigation applicable to them." -KRS 131.030(3)), it is permissible for the PVA to meet with Mr Montgomery and review the information he presents to you for the 2012 assessment, along with other information that will help to determine an estimate of the fair cash value for 2012. This information should be provided to the PVA by Mr. Montgomery no later than August 1, 2012.
If this is an acceptable solution to you, please let me know and I will tell Mr Montgomery that he should contact you as soon as possible.
Ms. Stump acknowledges that it was this e-mail which "allowed me to review the 2012 assessment even though taxpayer did not file appeal timely." Thus, in a procedural sense, it could be said to have been "used for, or relied upon in making in making the property assessment." Furthermore, although the content of the e-mail is procedural rather than substantive, it cannot be denied that this record is at least "related to" the property assessment.
Although there are many cases in which a request framed in terms of "all records that relate to" a given topic may constitute an insufficiently precise description to locate the records ( see, e.g. , 13-ORD-133; 13-ORD-077), this is not such a case because the PVA readily located the e-mail when responding to Mr. McNally's more specific request in May 2013 (discussed below). Therefore, we find a violation of the Open Records Act inasmuch as this e-mail was not produced in January 2013.
3. Request dated May 28, 2013; received June 3, 2013
Mr. McNally's third request was for copies of the following:
[A]ll documents, whether in a paper, digital or other format, contained in your files related to, used for, or relied upon in making the property assessment for the above-referenced Taxpayer for the assessment date of January 1, 2013, including (without limitations):
If your assessment as of January 1, 2013 is based upon or related to, in part or whole, the basis for your assessment as of January 1, 2012, provide all documents related to, used for, or relied upon in making the January 1, 2012 assessment, as noted in the above listing. If any of the requested documents are unavailable or do not exist, so state in the affirmative in your response.
In response, the PVA states that she provided duplicates of everything she had provided under the January 2 request, plus a copy of the 2013 tax notice, a "Memorandum dated February 27, 1991 that I received May 8, 2013 from Revenue after requesting a copy," a copy of the 2013 "Property Assessment Card," a copy of the "Order Correcting Erroneous Assessment for the 2012 tax bill," and the previously discussed e-mail from David Gordon dated July 3, 2012.
Mr. McNally claims that the PVA failed to respond to the final paragraph of the third request inasmuch as she still has not "produce[d] the complete file that she has maintained on this Taxpayer" consisting of "documents and information for the January 1, 2012 assessment." Ms. Stump acknowledges that "the assessment for 2012 was the same as for 2013" and the 2013 assessment was indeed based on the same information. She states, however, that all relevant records have already been provided:
There is no more written correspondence, to my knowledge. All other communication regarding the Marina assessment was not based on work papers, it was based on Mr. Montgomery's statement to me, in person in the presence [of] my field representative from the Department of Revenue, that the Marina was purchased for $ 3,000,000.
?
In response to Mr. McNally's accusation of a denial or, nonresponse to an open records request, I have provided any and all documents requested of me in a timely fashion. The 2012 and 2013 assessments were not based on appraisals, sales comparison or other work papers. The assessment was based on Mr. Montgomery stating that he purchased the marina for $ 3,000,000 and his statement that it appraised for $ 3,300,000. He further stated, and I agreed, that due to prior storm damage incurred and recent improvements a fair cash value of $ 2,500,000 was appropriate.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. With no clear indication that the PVA has withheld any responsive records, we cannot conclude that a violation of the Open Records Act occurred with regard to the May 28 request.
4. Request dated June 7, 2013; received June 7, 2013
Mr. McNally's fourth and final request was for an "entire copy" of the July 3, 2012, e-mail from David Gordon. It appears that in the PVA's response to the May 28 request, the first line of that e-mail was duplicated at the bottom of an e-mail string that included some follow-up conversation; the rest of Mr. Gordon's initial communication was cut off. A separate printout of the original message, however, was provided in its entirety; and indeed a second copy of that entire e-mail was timely sent by Ms. Stump in response to Mr. McNally's June 7 request. Since there appears to be no issue surrounding the June 7 request, we find no violation of the Act.
In conclusion, we find that the Spencer County PVA has not failed to provide records responsive to Mr. McNally's four requests. The only violation of the Open Records Act was the failure to produce the e-mail from Mr. Gordon in response to the general language of the request dated January 2, 2013. 3
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.
Distribution:
Kipley J. McNally, Esq.Kim Stump, Spencer County PVA
Footnotes
Footnotes