Request By:
Mr. Dan Adkins
Regional News Staff
Ashland Daily Independent
Ashland, Kentucky 41101
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
As a newspaper reporter you are interested in inspecting the cancelled checks of the CETA program in Magoffin County. You give the following details:
"The account at the Salyersville National Bank, Account No. 373-847-3, was opened in March, 1978, two months after Calloway Montgomery took office (as County Judge/Executive). The account lists Miss Montgomery (Deputy County Judge Executive and daughter of Calloway Montgomery) as the person to receive the monthly bank statements. The account was closed in September, 1978 by an August, 1978 order from the Department for Local Government. During the period from March to August, deposits totalling $9,058.08 were placed in the account; $773.83 was turned over to the fiscal court in September.
"Miss Montgomery refused to turn the cancelled checks from the account over to the fiscal court, and so this issue was added to the court's suit against the county judge. . . .
* * *
"Page 22 of the judge's decision responds to that part of the complaint. In that section, the judge said the fiscal court had not exhausted all means at its disposal to acquire the check stubs and cancelled checks from Ms. Montgomery or from the records of the Salyersville National Bank. . . .
"The bank president has told me that the bank would be willing to supply the copies, with a fee for the work involved, but would require a court order to do so."
You are requesting the Attorney General to take action to acquire the bank records of the account pertaining to the CETA program since you believe that the fiscal court and the public are entitled to an accounting of the funds administered by the Deputy Judge/Executive, Linda Montgomery.
From information you supplied and from our own investigation, we have learned that the Magoffin County Fiscal Court sued the County Judge/Executive and the Deputy in the Magoffin Circuit Court for a declaration of rights. A counterclaim was filed and a special judge heard the case and rendered a decision. County Attorney Marcus Mann represented the Fiscal Court and he informs us that the decision of the special judge is now being appealed to the Court of Appeals of Kentucky. Mr. Mann also informed us that the State Auditor's Office declined to audit the CETA account because it considered that it did not have the authority to do so.
From the facts presented, the Attorney General's Office has no authority to take any action at this time. The rights of the respective parties are still being litigated and we have no information as to violations of the law or of the inability or unwillingness of the Commonwealth's Attorney of the District to handle any prosecutions which may be warranted.
However, under the Open Records Law, KRS 61.870-61.884, we are charged with the responsibility of giving an opinion as to whether the custodian of a public record has properly denied access to the record. We will, therefore, proceed to give our opinion as to the public's right to access to the cancelled checks of the CETA program.
Bank statements, cancelled checks and check stubs are public records when they pertain to the funds of a public agency, and under the Open Records Law they should be made available to any person who requests to inspect them. In the law suit between the Fiscal Court and the Judge/Executive, et al., Linda Montgomery said she did not have the cancelled checks and that one of the magistrates had stolen them from her. One of the parties to the suit could have subpoenaed the records of the Salyersville National Bank pertaining to the account and the Judge could have ordered the bank to produce the records. The bank's records are not public records and are therefore not subject to the Open Records Law. The Attorney General, not being a party to the litigation and not being in the process of prosecuting any charge pertaining to the records, has no standing to demand the records from the bank.
It is our opinion that the account books of the CETA program, any record of bills paid, payroll, check stubs or cancelled checks, and all other records which show funds received and disbursed are public records and if the demand is refused by the custodian, the requester can file suit in the circuit court under the Open Records Law. If the Court finds that the records have been willfully withheld from public inspection in violation of the law, it can award attorneys' fees and court costs and a renalty of up to $25 a day for the time the records were withheld.