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 Lexington-Fayette Urban County Government (LFUCG) violated the Open Records Act in the disposition of John Fritz's December 12, 2013, request for records relating to facilities management contractors. For the reasons stated below, we find that the LFUCG violated the Act by failing to respond to some portions of the request.
Mr. Fritz's December 12 letter requested "access to the originals, and one true copy each of the following documents and information" pertaining to the "Robert F. Stephens Courthouse Square Public Park" and Triangle Park in downtown Lexington:
1. The current contract and memoranda of understanding between LFUCG (and its agents and assigns) and Meridian Management group (and its agents and assigns) (the company that manages the [Robert F. Stephens] park even if known by another name.
2. The number of man-hours used to decorate the [Robert F. Stephens] park for the Christmas season including but not limited to all preparation, decorating, removal and storage of Christmas season decorations for the period of time between Nov. 1, 2012 through Feb. 28, 2013.
3. The average hourly wage paid for the laborers and salaried staff who perform the work to decorate the [Robert F. Stephens] park for the Christmas season including but not limited to all preparation, decorating, removal and storage of Christmas season decorations for the period of time between Nov. 1, 2012 through Feb. 28, 2013, including but not limited to the cost of subcontractors involves in decorating.
4. The total value of tax dollar contributions and gifts given/paid to Meridian Management Group and its agents and assigns (and other companies that manage the [Robert F. Stephens] park) for the period of time Jan. 1, 2012 through Dec. 31, 2012 (please notice date difference from other requests).
5. The current contract and memoranda of understanding and communications/correspondence between LFUCG (and its agents and assigns) and Triangle Foundation (and its agents and assigns and other companies that manage the TP [Triangle Park] regarding LFUCG's (and its agents and assigns including but not limited to Lexington Center Corp., and Downtown Lexington Corp., and its agents and assigns) decorating TP for the Christmas season for the period of time between Nov. 1, 2012 through Feb. 28, 2013, including but not limited to decoration of the TP Christmas tree.
6. The total value of tax dollar contributions and gifts given/paid to Triangle Park Foundation and its agents and assigns (and other companies that manage the TP) for the period of time Jan. 1, 2012 through Feb. 28, 2013 (please notice date difference from other requests).
(Emphasis omitted.) Mr. Fritz initiated an appeal to the Attorney General, which was dated December 12, 2013, but received by this office on January 8, 2014, alleging that he had received no response to his open records request.
On January 23, 2014, LFUCG attorney Michael R. Sanner responded to the appeal, attaching a copy of a letter to Mr. Fritz dated December 16, 2013, from LFUCG General Services Commissioner Geoff Reed, stating as follows:
This is in response to the above referenced open records request received on December 12, 2013 for the following items:
As to the first request, copies of all current contracts between LFUCG and Meridian for Facilities Management services for Courthouse Complex are now available for your review.
As to your second request, Meridian does not provide any Christmas decoration services for the Plaza. A copy of email dated 12/12/13 from Mike Wiley, Meridian on site Facility Manager, is available for your review.
As for your third and fourth request, there are no data on file since no services have been rendered by Meridian regarding Christmas decorations.
All current documents will be available for thirty (30) days from the date of this letter for your review, after which the documents will be returned to the filing system and this matter will be considered closed. Records can be reviewed in the Department of General Services from 9am -- 4:30pm. Monday -- Friday. You can schedule a time for reviewing the documents by calling Beverly Higgins at 859 258-3900 and copies of documents may be made at 10 cents per page.
Mr. Fritz, in in a January 29, 2014, reply letter, claims that he never received this response letter from Commissioner Reed. Mr. Sanner states that "[t]he response was not returned as unable to deliver," and that "[w]hen Mr. Fritz failed to respond to inspect the records, Beverly Higgins of General Services where the records are located, called his office and spoke to his secretary regarding his inspection of the records." Mr. Fritz replies that he did not have a secretary.
This office cannot, in the context of an open records appeal, resolve disputed questions of fact regarding whether a particular letter or phone call was received. Even assuming the December 16 response was made as indicated, however, we find that the letter failed to comply with the Open Records Act because it was an incomplete response.
Item 4 of the request was not, as the response implies, limited to work on Christmas decorations, but pertained to the total amount paid to Meridian in calendar year 2012. LFUCG's response to item 4 was thus inadequate. Furthermore, LFUCG made no answer of any kind to items 5 and 6. Therefore, we necessarily find a violation of KRS 61.880(1), which requires a written disposition of any request within three business days.
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:
Mr. John FritzMichael R. Sanner, Esq.