Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Mockingbird Valley violated the Open Records Act by failing to provide timely access to records as required by KRS 61.878.
Mr. R. Keith Cullinan filed an appeal, dated August 4, 2016, with this Office stating that he had had no response to a letter he had sent to the City of Mockingbird Valley requesting certain records. The letter attached to the appeal, dated July 29, 2016, was addressed to the Mayor and Commissioners of the City of Mockingbird Valley. The letter of July 29th requested the following records:
1) The schedule of regular meetings as mandated by KRS 61.820(2).
2) Minutes of all meetings for fiscal years ended 6/30/15 and 6/30/16 (except minutes for the months of January, February, March and May, 2016 that I already have).
3) Monthly financial statements for fiscal years ended 6/30/14, 6/30/15, and 6/30/16.
4) Bank statements for all MV funds for fiscal years ended 6/30/14, 6/30/15, and 6/30/16.
5) Detailed list of all expenditures of MV funds for the fiscal years ended 6/30/14, 6/30/15, and 6/30/16.
6) All records of any type (excluding meeting minutes and letters from MV Mayor to constituents) in any way regarding the now-terminated interlocal agreement with Indian Hills for police protection.
7) All records of any type (with the same exclusions as in 6 above) relating to the contractual arrangement entered into between MV and Homeland Patrol.
8) Regarding May Davis's [ sic ] letter of 5/18/16 to MV residents, any records of any type that would disclose the identities of the number of mayors who immediately suggested Homeland Patrol for consideration to provide supplemental police protection to MV.
9) All municipal orders adopted by MV for fiscal years ended 6/30/14, 6/30/15, and 6/30/16.
10) All "Proofs of Receipt" mandated by KRS 15.257 for MV elected officials.
On August 9, 2016, a copy of the appeal letter was sent by this office to Mayor Davis and Hon. Tom Halbleib, attorney representing the City of Mockingbird Valley. On August 10, 2016, Mr. Cullinan sent another letter to this Office, and included a copy of a letter, dated August 3, 2016, from attorney Tom Halbleib on behalf of the City of Mockingbird Valley. The August 3rd letter was in response to Mr. Cullinan's Open Records request of July 29, 2016.
In the August 10th letter Mr. Cullinan addressed those issues that he believes were not sufficiently answered by the City's response of August 3, 2016. By letter dated August 15, 2016, Mr. Halbleib responded to the Open Records appeal. Mr. Halbleib's letter states that it is the letter of July 29, 2016, that forms the basis of this appeal. We agree that it is the letter of July 29, 2016, that was the request for records and is the basis for this appeal. Any additional, or modified, requests contained in later correspondence from Mr. Cullinan are not the subject of this appeal. "The agency may provide the Attorney General with a written response to the issues raised in the complaint ." (Emphasis added). 40 KAR 1:030 Section 2. However, to the extent that Mr. Cullinan's letter of August 10, 2016, reflects that responsive records have been made available to specific requests, those portions of the appeal are moot pursuant to 40 KAR 1:030, Section 6.
The five issues remaining after the City's August 3rd response are discussed below:
1. The schedule of regular meetings as mandated by KRS 61.820(2) : Mr. Cullinan's initial request of July 29, 2016, asked for "[t]he schedule of regular meetings as mandated by KRS 61.820(2)." The City responded to this request first by merely informing Mr. Cullinan that the "[m]eetings of the City Commission take place on the first Tuesday of the month, at 6:00 PM at Mayor Davis' home." In its response to this Office, Mr. Halbleib answered the more specific question for the "record showing adoption" by the City of the schedule of meetings. Mr. Halbleib explained that the City has been unable to find a copy of the August 2007 Ordinance setting the time of the regular meetings at 6:00 p.m. on the first Tuesday of each month.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. 08-ORD-184. Because the City cannot produce for inspection the ordinance that has been misplaced or no longer exists, we affirm its denial on the basis of the apparent nonexistence of those records. However, the fact that the City is unable to find the ordinance suggests a records management issue. Pursuant to KRS 61.8715, public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act and the State Archives and Records Act, KRS 171.410 - 171.740. The city ordinance in question falls within the parameters of Records Series No. L4941, page 25, Local Governments, General Records Retention Schedule, and is to be retained permanently. The matter of the records management issue will be referred to the Department for Libraries and Archives for action as that agency deems warranted. Accord, 05-ORD-141; 01-ORD-176.
2. Monthly financial statements for fiscal years ended 6/30/14, 6/30/15 and 6/30/16 . The City's response of August 3, 2016, to Mr. Cullinan's request for monthly financial statements states: "To the extent that the City maintains records responsive to this request, it will make them available." The City's supplemental correspondence of August 15, 2016, further states that "[Mr. Cullinan] appears to believe that the law requires the City to maintain monthly financial statements. I am unaware of any such requirement. The City prepares financial statements for some but not all months." There does not appear to be a violation of the Open Records Act in that the City has offered to make available those records it does possess. To the extent that Mr. Cullinan is alleging that the City has not complied with a requirement to create a monthly financial statement, we will include this issue in the referral to the Kentucky Department for Library and Archives for action as they deem appropriate. We cannot declare the City's failure to produce nonexistent records a violation of the Open Records Act or, as a corollary, compel the City to disclose records that were never created or that were not retained. Having determined that the City did not violate the Open Records Act in failing to disclose nonexistent monthly financial reports, and having referred this matter to the Department for Libraries and Archives for any additional action that agency deems warranted, this office has fully discharged its duties under KRS 61.880(2) and KRS 61.8715 in regards to this specific request.
3. " All records of any type ? relating to the contractual arrangement entered into between MV and Homeland Patrol ." Mr. Halbleib responded that he has "previously made available to [Mr. Cullinan] a copy of the City's contract; if you need another, please let me know. I have asked that Commissioners review their individual files in search of additional responsive records, but those records are not readily available to the City. I will supplement this response by not later than August 18 to let you know whether additional responsive records are identified."
The relevant statute regarding this request and response is KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) 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 City did not respond that the requested records were in active use, in storage or not otherwise available; Mr. Halbleib merely states that he has asked the commissioners to review their files for additional responsive records. There is no detailed explanation given as to why the commissioners could not immediately review their files and provide any additional responsive records within the three day limit provided by KRS 61.872(5). See, 09-ORD-139. The City violated KRS 61.872(5) by not providing the requested records within three business days or providing a detailed explanation of the cause for further delay.
4. City Municipal Orders . Mr. Cullinan's letter of August 10, 2016, questioned the City's response to his request for "[a]ll City municipal orders adopted by [the City] for fiscal years ended 6/30/14, 6/30/15, and 6/30/16." The City's response stated that "[t]he City will make these records available to the extent that it maintains any." Mr. Cullinan states that this response failed to state whether such records exist, and if they do exist, but the City does not maintain them 1, the City should so state and advise him where they are maintained.
As the City has affirmatively indicated that it will provide the records it maintains, Mr. Cullinan has provided no basis upon which this Office can find a violation of the Open Records Act regarding the municipal orders. Should the City not have records which it presumptively should maintain, then that would be a situation better addressed to the Kentucky Department for Library and Archives.
5. Mr. Cullinan's request for Proofs of Receipt "mandated by KRS 15.257 for MV elected officials ." The City's response stated that KRS 15.257 does not mandate that the City maintain Proofs of Receipt and the City has no responsive records. We note that KRS 15.257 is the statute that requires distribution to mayors (and other elected officials) of Open Records Act information provided by the Office of the Attorney General but is not the statute (KRS 65.055(2)) that requires the mayor to have signatory proof that the material has been distributed to the elected and appointed officials of the city's legislative body and boards. As Mr. Cullinan requested records required by KRS 15.257, rather than KRS 65.055, we find no violation in the City's response that it maintains no responsive records.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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