Opinion
Opinion By: Andy Beshear,Attorney General;Mitchel Denham,Assistant Deputy Attorney General
Open Records Decision
Richard Leal appeals the Hardin County Fiscal Court's handling of an open records request dated November 9, 2015, that reached the Fiscal Court's records custodian, Hardin County Judge/Executive Harry L. Berry, on November 12, 2015. Mr. Leal requested:
[A]ll documents detailing the costs of any newly purchased furnishings (desks, chairs, pictures, rugs, etc.) for your [Judge Berry's] new office at the 13 million dollar plus Hardin County building to include any/all rooms within that building for all departments . . . , [i]ncluding any new costs for any rooms/offices for magistrates.
. . .
[C]opies or [sic] biddings for current or future plans on any remodeling . . . [,] includ[ing] any current or future bids/ purchases for new furnishings [in relation to] the transfer of the Hardin County Attorney's office into the old courthouse.
Judge Berry responded to Mr. Leal's requests on November 17, 2015.
In his response, Judge Berry acknowledged receipt of Mr. Leal's request on November 12, and advised Mr. Leal as follows:
it may take until November 30, 2015, to access and compile the documents you requested. Once we retrieve the files, search for the applicable documents, compile and copy them, we will notify you the documents are ready for you to pick up, along with an invoice for copy charges.
He notified Mr. Leal that his response was limited to expenses incurred by the fiscal court. Shortly thereafter, Mr. Leal initiated this appeal objecting to the timeliness of Judge Berry's response, the Judge's failure to provide a detailed explanation of the cause for delay beyond the three working day deadline established in KRS 61.880(1), and other omissions.
Upon receipt of notification of Mr. Leal's appeal, Hardin County Attorney Jennifer P. Oldham supplemented Judge Berry's original response. She reiterated that the Judge's November 17 response to a request that reached his office on November 12 was, in fact, consistent with KRS 61.880(1). As for Mr. Leal's objections concerning the Judge's omission of a detailed explanation of the cause for postponing access to the requested records, Ms. Oldham explained that the November 30 production date was:
actually 10 business days from receipt of the initial request. Two county/state holidays intervened during that period of time. Ten business days is a reasonable amount of time in which to search and compile records. Such reasonable allowance is permitted under the law.
She attached a copy of Judge Berry's November 30, 2015, final response in which he provided Mr. Leal with thirty-four pages of responsive fiscal court records" and a written "final cost breakdown of the County Government Building located on 150 Provident Way . . . ." Ms. Oldham requested a finding from this office that Mr. Leal's requests are intended to disrupt the other essential functions of the Hardin County Judge/Executive and the Hardin County Attorney. In support she summarized Mr. Leal's correspondence with the fiscal court from January 7, 2002, to January 15, 2015. We defer resolution of this issue until it is presented as the basis for denial of Mr. Leal's future request(s).
I. Although Hardin County Fiscal Court substantially complied with Open Records Act by producing available responsive records and responding to written inquiries, fiscal court should have provided a detailed explanation of the cause for delay as required by KRS 61.872(5), when it postponed access to those records .
The record on appeal contains no evidence supporting Mr. Leal's allegation that Judge Berry did not comply with KRS 61.880(1) by responding to Mr. Leal's request, dated November 9 but received on November 12, within the three working day deadline found at KRS 61.880(1). Judge Berry's response was, however, deficient insofar as he suggested "it may take until November 30, 2015" to produce records responsive to Mr. Leal's request but failed to provide "a detailed explanation of the cause . . . for further delay" and to specify "the place, time, and earliest date on which the public record[s would] be available for inspection." KRS 61.872(5). Judge Berry stated that "retriev[ing] the files, search[ing] for the applicable documents, compil[ing] and copy[ing]" justified an extension of the three day statutory deadline but provided no details related to the specific records requested. This response did not give a detailed explanation of the cause for delay and was therefore deficient.
II. Hardin County Judge/Executive properly notified requester that he could disclose only those records for which he was designated official custodian and went beyond his statutory duties by providing narrative responses to requester's questions .
Mr. Leal originally requested access to records detailing costs for newly purchased furnishings in " your [Judge Berry's] new office . . . to include any/all rooms within [the now Hardin County Courthouse] . . . [and] any new costs for any rooms/offices for magistrates. " Additionally, he requested "bid [s] for current or future plans on any remodeling" and the cost of new furniture associated with "current or future" remodeling. 1 Judge Berry produced the responsive records for which he was designated official custodian of records and voluntarily provided narrative responses to some of Mr. Leal's improperly framed requests for information. He emphasized that he could only provide Mr. Leal with records over which he exercised custodial authority. In so doing, he fully discharged, and, indeed, exceeded, his statutory duties.
Mr. Leal's open records requests included a number of questions that required written responses and, therefore, the creation of a record. Among these questions, Mr. Leal asked whether old furnishings from the old courthouse were used/transferred to the new building and, if not, why not. Mr. Leal also requested "a total amount of new furnishing . . . for each room" and "a final cost of the cost of the building." Although not legally required to do so, Judge Berry voluntarily provided Mr. Leal with a "final cost breakdown of the County Government Building located on 150 Provident Way" in his November 30, 2015, final response to the November 12, 2015, request. It is well established in the law that a public agency is not legally obligated to create a record that does not already exist, as by way of generating written responses to questions posed, or to compile information that has not already been compiled in a single document, as by creating a previously nonexistent "final cost breakdown. " See, 11-ORD-026, (copy enclosed), and authorities cited therein. Judge Berry, and the Hardin County Fiscal Court, substantially complied with the Act in producing all records in the agency's custody that were responsive to Mr. Leal's properly framed request for records and in answering his improperly framed requests for information.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 We can locate no response to Mr. Leal's request for bids for remodeling and the cost of new furniture associated with remodeling. If he has not yet done so, Judge Berry must respond to the second part of Mr. Leal's November 9 request.