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 Blue Ridge Manor violated the Open Records Act in the disposition of Darrell Metcalfe's November 15, 2013, request for various records and information. For the reasons that follow, we find that the agency both procedurally and substantively violated the Act.
In his November 15 letter to the attention of the mayor, city attorney, commissioners, and city clerk, Mr. Metcalfe made the following request:
1). I would like all information you have that says the city of BRM has the right to pave a Private road.
2). I would like to know what company installed the signs on South Dorsey Way and who gave them permission? What was the total cost?
3) I would like a list of all the contractors that submitted bids on the signs for BRM. This year and the previous year.
4) I would like to have a list of all contractors that installed the Public parking lot at the end of the private road. Also I want to know the total cost of the project. Please break it down.
5). I would like a list of all the information that was given to the engineer, Ted Trautline involved in this project and the name of who ever gave him the information that said the city owned the road.
6) I know the city of BRM is required to have an Audit every two years. I would like a copy of there [ sic ] most recent Audit. I would like some information that shows me they are in compliance with the Ky State Auditors Office and The Dept for local Government. Also the most recent Budget shows $ 66000 taken out of reserves. I would like some kind of documentation to show me where that money is going.
7) I would like to have a breakdown on what each commissioner, city clerk, city attorney and mayors salary is. When they were given pay raises and when those raises went into effect.
8) I would like to have a breakdown on all the expenses and the total cost of this year and last years Octoberfest [ sic ]. Where the money that was taken in went! Also include what was given to charity. Also the names of the Charities
9) The City Clerk, Pat Gramig told me that the minutes of the meeting are taken and then sent to the Mayor and City attorney to be edited before they are published. I would like a copy of the minutes that are taken at the meetings that are not published and a copy of the edited meetings that are actually published. All the minutes for the last 3 years.
According to Mr. Metcalfe's appeal dated December 2, 2013, he had submitted his request by certified mail to the mayor and city attorney, with a copy to the city clerk, but had received no response.
On December 11, 2013, City Attorney L. Stanley Chauvin, III, responded to this appeal with the following information:
I did receive Mr. Metcalfe's request by certified mail and the Mayor and City Clerk of the City of Blue Ridge Manor forwarded their copies of the open record request to my attention as they have been instructed to do. It is my usual practice to immediately send out a letter of receipt of such a request to the requester[.] In this case, I unintentionally overlooked the filing of the response letter to Mr. Metcalfe regarding his request, however, I mistakenly believed that I had and in fact, was in the process of reviewing information I had previously sent to Mr. Metcalfe's prior Counsel in order to determine what, if any, was overlapping and objectionable and what was not.
On another note, I was also in the process of drafting a letter to Mr. Metcalfe concerning the Blue Ridge Commission's response to a number of issues and complaints that Mr. Metcalfe and I had discussed previously. For the reasons above, any blame in this matter falls squarely on my shoulders.
I have never intentionally withheld or concealed information from Mr. Metcalfe and have been working with him in good faith for over a year on issues involving the construction of a parking area in Hardesty Park (which belongs to the City of Blue Ridge Manor) and which adjoins Mr. Metcalfe's property. I will continue to work with Mr. Metcalfe in a professional manner concerning these issues and will, after consulting with the City Clerk, immediately send him a letter concerning his request.
While we appreciate Mr. Chauvin's candor, it is necessary that we find the City committed a procedural violation of KRS 61.880(1) by failing to provide a written response to Mr. Metcalfe's request for records within three (3) business days. 13-ORD-206.
Furthermore, KRS 61.880(1) requires a public agency to determine within those three (3) business days "whether to comply with the request." Inasmuch as the City did not make such a decision within the required time period, and provided no legal basis for its failure to do so, we must conclude that "the intent of KRS 61.870 to 61.884 [was] subverted by an agency short of denial of inspection" within the meaning of KRS 61.880(4) to the extent that Mr. Metcalfe's letter constituted a request for records.
In large part, however, the letter was not a request for records. Indeed, all items in the letter except items 6 and 9 may be fairly characterized as requests for information as opposed to records. Requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
For this reason, the subsequent developments in this case seem odd because the City eventually provided a great deal of information, answering Mr. Metcalfe's questions, but apparently still has provided him no actual records in response to items 6 and 9.
In a letter to Mr. Metcalfe on December 23, 2013, Mr. Chauvin stated the following in regard to request number 9 (for copies of draft and final minutes of city commission meetings):
It is a routine procedure for the city clerk to distribute and request comment on a draft of the meeting minutes. The minutes are not final and considered public until they are approved at the meeting following the meeting the minutes were recorded [ sic ]. Therefore, the undersigned objects to providing draft copies for the previous three (3) years. The undersigned has previously instructed all Clerks to release only the minutes that are final and have been approved by the Commission and believes this is standard procedure for Municipalities of the 5th and 6th class in Kentucky and in accordance with the Open Records law in Kentucky.
It is true that unapproved draft minutes, as "[p]reliminary drafts," need not be disclosed pursuant to KRS 61.878(1)(i). 08-ORD-268. The City still has provided no explanation, however, for its failure to provide copies of the final approved minutes of the commission meetings for the previous three years. We can only find that this non-production of the records is a violation of the Act.
Likewise, the City still has not provided Mr. Metcalfe a copy of its most recent audit or the requested documentation concerning expenditures. In his December 23 letter, Mr. Chauvin stated the following in regard to request number 6:
The city is pending audit for 2012-13. The City received a dispensation for the fiscal year 2013-11 for incomplete records which have since been recaptured. The prior audit was satisfied by a financial statement in lieu of an audit and it is on file with the Department of Local Government. The undersigned is awaiting a copy and will forward upon receipt. The undersigned is awaiting a response on the budget question and will supplement this response.
On January 23, 2014, Mr. Chauvin supplemented his response as follows:
The $ 66,000 that was transferred from reserves was utilized in its entirety for City banners, City signs (road and other) and the Hardesty Park project. I do not have a specific break down of those monies but the budget was amended to reflect the overage.
Again, the City provides information but no records, or "documentation, " as requested by Mr. Metcalfe. Although there is much discussion of which prior audits did or did not occur, and where the City's money was spent, there is no effort made to provide Mr. Metcalfe a copy of the most recent audit or any records showing the City's expenditures. We conclude that this response is likewise in violation of the Open Records Act.
Item 5 in Mr. Metcalfe's request is somewhat ambiguous in that it asks for "a list of all the information that was given to the engineer, Ted Trautline." If a list of information does not exist, it is not incumbent on a public agency to compile one. OAG 89-45; OAG 76-375. Nevertheless, Mr. Chauvin's supplemented response dated January 23, 2014, was ambiguous as to whether this information existed in the form of a list:
To the best of the undersigned's memory several plats were reviewed by Mr. Trautwein and the supplemental research on South Dorsey Way was conducted by Land & Development, Inc. (Kevin Young, Engineer) . The undersigned is still attempting to locate this information and will supplement this answer. The undersigned will provide this document as soon as it is located and copied which he believes will be in the next ten (10) [ sic ] at the latest.
(Emphasis in original.) To the extent that a list responsive to Mr. Metcalfe's request might exist, the failure to produce it in a timely manner would have constituted another violation of the Act.
On February 14, 2014, Mr. Chauvin again supplemented his response to Mr. Metcalfe for item 5, substituting for the last two sentences quoted above: "The attached plat/ map is the document that was originally presented to the engineers at the initiation of the Hardesty Park project." (Emphasis omitted.) This substitution substantially reduces any implication that a list exists. Furthermore, on February 17, 2014, Mr. Chauvin informed Mr. Metcalfe that "the plat/ map that I provided you was what the city initially presented to Engineers Ted Trautwein and Kevin Young" and "[t]he City provided no other information." That being the case, the chances that a list would be generated for only one item would be quite remote. Thus, we find no violation as to item 5.
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.
# 460
Distributed to:
Mr. Darrell MetcalfeHon. Michael Ober, MayorL. Stanley Chauvin, III, Esq.