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 Ravenna violated the Open Records Act in its disposition of a request for a copy of an agreement to accept compensatory time in lieu of overtime pay between the City and a city police officer. For the reasons stated below, we find that the City of Ravenna violated the Act and that the appearance of a records management issue merits referral to the Department for Library and Archives.
On August 31, 2017, Mr. William Van Cleve ("Appellant") delivered an open records request to the Ravenna City Clerk. His request was for ". . . a copy of the agreement between Police Officer Michael Gross and the City of Ravenna agreeing to take compensatory time in lieu of overtime pay. KRS 337.285." He described the events regarding the delivery of his open records request, and the City's response as follows:
At 2:30 p.m. on August 31, 2017 I hand delivered my open records request to the Ravenna City Clerk (Custodian of Records). I was informed by the city clerk that she had about 15 or 20 minutes of work to do and then she would make me a copy. I agreed that would be good, I would wait. I waited about 20 minutes when the mayor and city clerk came out of the city clerk's office and informed me that the clerk had to leave and would not have time to make a copy for me. I asked the mayor and city clerk, do you have a copy of the written agreement and I was assured that they had it. I waited until 3:50 p.m. for the mayor to make a copy. Then Police Officer Michael Gross came into city hall and gave [the Mayor] a copy of a blank agreement form to accept compensatory time in lieu of overtime payment. At that time the mayor gave me the uncompleted form. The agreement was not signed or dated by the mayor. It is signed and dated by Police Officer Michael Gross on the same day I made my open records request August 31, 2017.
Appellant provided a copy of the form to this office when he appealed the City's response to his open records request. The form is entitled "Agreement to Accept Compensatory Time Off in Lieu of Overtime Pay Form," and reflects that it is an agreement under the provisions of the Fair Labor Standards Act 1 and KRS 337.285 for non-exempt 2 employees to accrue compensatory time at the rate of one and one-half hours for each overtime hour worked. The form has two blank spaces for the dates of the period to which the agreement will apply. The form given to Appellant did not have any dates in those blanks but was signed by Michael Gross and dated August 31, 2017. The lines for "Department Head Approval" are blank. Appellant also provided this Office seven (7) pages which appear to be time sheets for "SRO Michael Gross" from July 11, 2016, through July 23, 2016; January 2, 2017, through January 6, 2017; and May 22, 2017, through June 17, 2017. Appellant also provided two "Payroll Item Detail" sheets for the City of Ravenna, apparently for the purpose of showing that Officer Gross was paid $ 59.25 for the date of January 6, 2017, and $ 309.42 for the date of April 28, 2017. The appeal then appears to cite from the time sheets and payroll sheets as support for Appellant's statement that Officer Gross "was granted 64 hours comp time for 14 hours overtime without any written agreement in place to take comp time in lieu of overtime payment." He filed an appeal of the City's response by letter dated September 13, 2017.
By letter dated September 25, 2017, attorney Brooks Stumbo, responded to the appeal on behalf of the City. The City's response stated that "Mr. Van Cleve was not denied any record and the City provided to him what they had on file . . . By producing what was on file, the City complied with Kentucky's Open Records Act . . ."
ANALYSIS : Appellant's description of events was not contested in any way in the City's response to this appeal. That description of events reflects that the document provided to Appellant was created during the time Appellant was in the City's offices on August 31, 2017. That form was signed and dated by Officer Gross on August 31, 2017, and supports Appellant's description of the events of when he requested the record and how he received the form. The City's response to the appeal was that "the City provided to [Appellant] what they had on file." The City's response does not in any way indicate that it possessed any other responsive record or that it had conducted an unsuccessful search for the requested record. The City did not request any additional information from Appellant to assist in locating the requested record. Appellant waited in the City's offices and would have been available had such additional information been requested. From the description of events provided by Appellant, we can only conclude that the City did not have a record responsive to the open records request at the time Appellant delivered the request, and that the City created the record after the request was delivered.
In such instances, where a public agency cannot afford a requester access to a record that it does not have or that does not exist, the agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150, 04-ORD-43, 09-ORD-088. By failing to affirmatively advise Appellant that no responsive record existed, the City violated the Open Records Act.
Presumption of Record's Existence : The record of this appeal strongly indicates that the City should have had a record, or records, responsive to the request. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340, 341 (Ky. 2005), this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038.
Appellant did not cite any authority that directs the creation of the records to document when non-exempt 3 employees are allowed to accrue compensatory time in lieu of receiving overtime pay. However, the very existence of the "Agreement to Accept Compensatory Time Off in Lieu of Overtime Pay Form" begs the question of why the City was not able to produce records for those instances where Officer Gross accrued or used compensatory time, as reflected in the time sheets provided by Appellant. Also, the "Agreement to Accept Compensatory Time Off in Lieu of Overtime Pay Form" cites to the Fair Labor Standards Act and KRS 337.285 as the bases for allowing accrual of compensatory time by nonexempt employees. KRS 337.285(1) 4 is the state statute that generally requires employers to pay "overtime" wages when a "non-exempt" employee works in excess of forty hours in a work week. However, KRS 337.285(4) 5 permits an employee of a city or county to make a written request to be granted compensatory time "upon a written agreement reached between the employer and the county or city employee before the performance of the work." Thus, it appears to us, that before Officer Gross could be allowed to accrue compensatory time in lieu of overtime pay, he must make a written request to do so and there must be a written agreement between him and the City for him to do so. It is obvious that the request and agreement required by federal and state law (for allowing compensatory time) are the purpose of the "Agreement to Accept Compensatory Time Off in Lieu of Overtime Pay Form."
The "Agreement to Accept Compensatory Time Off in Lieu of Overtime Pay Form" has blank dates that apparently must be filled in before the employee is allowed to accrue compensatory time. Although Appellant's open records request did not specify which time period he was requesting, the record of the appeal indicates that there should have been records responsive to the request in order for Officer Gross to accrue or use compensatory time in 2017, as shown by the payroll records provided on appeal. KRS 337.320 requires employers in the Commonwealth to keep records of amounts paid to each employee; the hours worked each day and each week by each employee; and requires those records to be kept for a year. The FLSA, in general, requires payroll records to be kept at least three years. 6
As we have concluded that the City did not have the responsive records, but that there is a strong presumption 7 that such records should exist, we believe that there may be a records management issue regarding the City's records.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The possible loss of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. 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). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
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 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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