Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the McCracken County Property Valuation Administrator ("PVA") violated the Open Records Act in its disposition of Debra Hanna's open records requests. For the reasons stated below, we find that the PVA made procedural errors in responding to the requests, but the record on appeal does not reflect substantive violations of the Act.
Debra Hanna ("Appellant") made a request for records to the PVA on January 18, 2018, requesting numerous records generally regarding bank statements, check registers, and vehicle/travel logs. The PVA answered on January 22, 2018, stating that the agency was compiling the requested records but would need until February 6, 2018, to mail the copies. After receiving that response, Appellant amended her records request, by letter dated January 30, 2018, and made a request to conduct an on-site inspection on February 6, 2018, of a wide variety of records. Appellant's request included records such as bank accounts, receipts for cash, vehicle operating costs, vehicle mileage, vehicle log books, vehicle sales, staff travel costs, and policies and procedures.
After her inspection 1 of records on February 6, Appellant sent another letter to the PVA, dated February 19, 2018, complaining that she had not received "a single monthly check register nor were any available for [her] review on 2/6/18 at [the PVA's] office." Appellant stated that, on February 23, 2018, she would pick up the check registers and "a copy of all insurance claims filed on the auto policy for the same time period [January 1, 2014, through current date]."
Nancy Bock, McCracken County Property Valuation Administrator, responded by letter on February 22, 2018, stating that the records would be available for inspection on March 1, 2018, to allow the "PVA staff a reasonable period of time to compile the [records] without having to endure an unduly burdensome distraction from their necessary daily duties. " The PVA further stated that it was not the official custodian of some of the requested records. Those records were in the custody and control of the Department of Revenue, and rather than deny Appellant's request, the PVA would "facilitate the production of said records by the Department of Revenue for [Appellant's] inspection at the PVA office. Naturally the Department of Revenue needs a reasonable period of time to compile and transmit these documents for the same reasons my office does. This further supports the necessity of the aforesaid March 1, 2018, inspection date." 2
It was after this response that Appellant, by letter dated February 26, 2018, filed her appeal of the PVA's disposition of her requests. The appeal complained that, during the February 6 on-site inspection of records, the PVA "provided a general ledger printout of the cash account, which in no way represents the information contained in a check register. " Appellant complained that the PVA was not complying with the Open Records Act's requirement that public agencies provide requested records within three days of receipt of the written request.
The PVA responded to the appeal on March 8, 2018, asserting that its responses to Appellant's requests complied with the Act's requirements for agencies to respond to requests for records by explaining the reason for delay, and the date certain that the records would be made available. The PVA also explained that, in regards to the check register, Appellant "was provided a detailed record of financial transactions conducted by my office in the electronic format in which said records are maintained and relied upon by my office the regular course of my duties."
Analysis . One of Appellant's two complaints appears to be that the PVA did not provide records within three days after receipt of the records requests. KRS 61.872(5) addresses the issue of timeliness by an agency responding to a records request:
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.
In response to the requests of January 18 and February 19, the PVA did "immediately notify" appellant of the earliest date on which the records would be available. The PVA's response of January 22, to the January 18 request, stated, as the reason for delay, that "due to previously scheduled obligations this week, and the time it will take to compile the requested documents for inspection, we need additional time to comply with your request. We should be able to fully comply with your request on February 6, 2018, by mailing you copies of the requested records on that date." Although, the PVA issued a written response within three "business days" per KRS 61.880(1) 3 , it did not expressly invoke KRS 61.872(5) in its response and failed to provide a detailed explanation for the delay. The PVA's explanation for the delay in producing the record being due to "previously scheduled obligations," and compiling the records, does not suffice as a detailed explanation for delaying production and constitutes a procedural violation of KRS 61.872(5).
In responding to the request of February 19, the PVA stated that the Department of Revenue ("Revenue") would need a "reasonable period of time to compile and transmit" the records that the PVA was getting from Revenue. We commend the PVA's work in facilitating the production of records from Revenue, but find its explanation only marginally sufficient for the delay in producing the requested records under the facts of this appeal. While this explanation, by the barest margin, satisfies the requirements of KRS 61.872(5), we also note a procedural violation of KRS 61.872(4) 4. The PVA must comply with this requirement of the Act, even though it went beyond the requirements of the provision in compiling the records from Revenue.
Appellant's other complaint regards the alleged failure of the PVA to provide "check registers. " Appellant's February 19 letter states that she has "not received a single monthly check register nor were any available for [her] review on 2/6/18 at [the PVA] office." The PVA directly responded to this claim by explaining that Appellant "takes exception to the format by which certain records were provided for her inspection, namely, what she describes as 'check registers. ' However, [Appellant] was provided a detailed record of financial transactions conducted by my office in the electronic format in which said records are maintained and relied upon by my office in the regular course of my duties."
This Office has long recognized that while an agency should make the records containing the requested information available for public inspection and copying, a requester cannot require the agency to compile the information in a certain format. OAG 91-12, p. 5; OAG 82-279, p. 1. Rather, "'what the public gets is what [the public agency has] and in the format in which [the agency has] it.'" 96-ORD-251, p. 1, (citing OAG 91-12, p. 4). This precedent is dispositive of the complaint regarding the "check registers. " The record reflects that the PVA does not keep its financial records in the format requested by Appellant, i.e., check registers, and has provided the responsive records in the format in which they are maintained by the agency. We find no violation of the Act in the PVA's production of financial records in lieu of "check registers, " as the agency does not maintain its records in that format.
On March 12, 2018, after the PVA responded to the notice of appeal, Appellant faxed a letter to this Office, making new assertions that all records responsive to her request had not been provided, despite the PVA's response that it had complied fully with the records requests. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2 (citing OAG 89-81, p. 3).
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The record on appeal does not provide certainty as to what records were provided for inspection on February 6, 2018, when Appellant inspected records at the PVA's office.
2 The record on appeal does not identify which records were in the custody and control of the Kentucky Department of Revenue.
3 KRS 61.880(1), in relevant part, states: "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision."
4 KRS 61.872(4) states: "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."