Request By:
Mr. Paul V. Guagliardo
Assistant Director of Law
City of Louisville
City Hall, Room 200
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Jon L. Fleischaker, counsel with Wyatt, Tarrant & Combs, has appealed to the Attorney General on behalf of "The Courier-Journal" pursuant to KRS 61.880 your response to open record requests from Nina Walfoort, Assistant City Editor with the Courier-Journal, and Grace Schneider, Reporter with the Courier-Journal. The records sought for inspection are described as follows:
Any and all financial documentation regarding the operation of the five city golf courses received from the city's five golf professionals in response to a request from city officials at a July 26, 1990, meeting at the Board of Alderman chambers.
Any and all financial documentation regarding the operation of the five city golf courses received from the city's five golf professionals before or after the July 26, 1990, meeting at the Board of Alderman chambers.
Any other additional support documents, print-outs, notes or records regarding the sale of food, beer, soft drinks or other concessions; golf merchandise; golf cart rentals; the purchase, lease or debt incurred by pros to operate golf carts; golf lessons, salaries and benefits paid by the golf pros to full, part-time or seasonal employees; and any other expenses incurred by the pros in their operation of the five city golf courses and clubhouses.
Inspection of these records was initially requested in a letter from reporter Grace Schneider to Jay Michael Brown, the city's Director of Law, on October 15, 1990. The City of Louisville responded by letter dated October 18, 1990, from Assistant Director of Law Paul V. Guagliardo, stating that the records were no longer in the city's possession, having been returned to the golf professionals, who originally tendered the documents to the city. Nina Walfoort made two other open record requests by letters dated October 19, 1990, to City Auditor Kalkhof and Alderman Denning. Mr. Guagliardo responded on behalf of Alderman Denning by letter dated October 23, 1990, stating that all the records requested had been returned to the individuals who originally tendered the documents. Mr. William H. Hollander, counsel with Wyatt, Tarrant and Combs law firm, responded on behalf of the Courier-Journal by letter dated October 29, 1990, arguing that the records should be made available for public inspection because records are not exempt from disclosure merely because they are maintained by lower-ranking city employees. Mr. Guagliardo responded to this argument by letter dated November 2, 1990, stating that the city was still uncertain whether the records sought for inspection qualified as "public records" and expressing the city's willingness to try to obtain the records. This letter included a memorandum from Mr. Guagliardo to Robert Kirchdorfer, Director of the Parks Department for the city, recommending that Mr. Kirchdorfer direct the individuals with the records to make them available for inspection. Mr. Oliver H. Barber, Jr., counsel for the five golf professionals, in possession of the records in question, wrote a letter dated November 7, 1990, to Grace Schneider of the Courier-Journal indicating why the golf professionals would not be permitted to inspect the records.
The instant appeal by the Courier-Journal was received by this Office on November 21, 1990. This Office received a response to the Open Records Appeal from Mr. Guagliardo by letter dated November 26, 1990, in which Mr. Guagliardo clarified some of the facts and identified some of the potential issues. Mr. Fleischaker responded to this letter on behalf of the Courier-Journal by letter dated November 20, 1990. The undersigned Assistant Attorney General talked with Mr. Guagliardo on several occasions by telephone in order to obtain clarification of the employment relationship between the city and the five golf professionals and the lease agreement between the golf professionals and the Louisville and Jefferson County Parks Department. This conversation revealed that the City of Louisville employs five golf professionals, each assigned to a separate golf course as follows: (1) Eddie Tyree at Seneca Golf Course, (2) Mark Kemper at Cherokee Golf Course, (3) Moe Denning at Shawnee Golf Course, (4) Paul Schuchard at Iroquois Golf Course, and (5) Doug Weick at Crescent Hill Golf Course. Each golf professional is paid a salary of approximately $ 1,300 per year. The duties of these golf professionals, in their capacity as city employees, include the following: (1) responsible for the supervision and administration of a municipal golf course and clubhouse, (2) enforce the policies and restrictions regarding admissions to the golf course, (3) provide for the maintenance of all city equipment located in the clubhouse at the city golf course, (4) collect green fees and maintain receipts on same, and (5) advise on the construction and maintenance of the golf course. These golf professionals are all nonsupervisory employees and must be eligible for certification as a Class A professional golfer by the Professional Golf Association.
Each golf professional has also entered into a lease agreement with the Louisville and Jefferson County Parks Department which by the terms of the lease agreement does not constitute an employment contract. This lease agreement grants each golf professional the exclusive right to operate food and golf accessory and equipment "concessions," which include the sale of food, beverages, golf supplies, equipment and accessories, and furnishing golf lessons. Each golf professional, in his capacity as lessee, is entitled to retain all proceeds from concession operations. These concessions do not include monies, collected by the golf professional in his capacity as an employee, for the sale of tickets or "green fees."
OPINION OF THE ATTORNEY GENERAL
The issue presented by this appeal is whether the records sought for inspection by the Courier-Journal constitute public records within the meaning of the Open Records Law. It is the opinion of this Office that the documents in question constitute private records of individuals which are not in the possession of a public agency and therefore are not covered by the Open Records Law.
KRS 61.870(2) defines "public record" as follows:
All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority.
The Courier-Journal argues that the records sought for inspection constitute "public records" for several reasons. First, the Courier-Journal argues that these records were "used" by the City of Louisville when the records were reviewed by City Auditor Kalkhof and Alderman Denning. Second, the Courier-Journal argues that the documents sought for inspection are "in the possession of or retained by a public agency, " namely the golf professionals, because the golf professionals are local officers. Third, the Courier-Journal argues that the documents sought for inspection are public records because the records are "related to functions, activities, programs or operations funded by state or local authority. " This Office rejects all three arguments for the reasons given below.
It appears from the correspondence and information obtained by the undersigned Assistant Attorney General in telephone conversations with Mr. Guagliardo that Alderman Denning requested that some or all of the five city golf professionals permit inspection of certain financial records maintained by the golf professionals in their capacities as lessees with the Louisville and Jefferson County Parks Department. There is no indication that this request by Alderman Denning was authorized by a majority of the Board of Alderman while in session as such a body. This Office is therefore of the opinion that Alderman Denning undertook this request as an individual and not on behalf of the governing body of the City. Consequently, the records which these golf professionals voluntarily provided to Alderman Denning in his individual capacity does not constitute "use" of records by the City of Louisville. OAG 79-496. [Copy enclosed. ]
Furthermore, even if Alderman Denning were acting in his official capacity on behalf of the Board of Alderman, this Office is of the opinion that financial records voluntarily produced for review by an individual and then returned to that individual are not converted into "public records. " A public agency cannot provide records which have been reviewed by public officials and returned to the private individuals. Such records would have to be obtained from the individuals involved because obviously a public agency cannot furnish access to documents for which the public agency no longer has custody. OAG 89-7 and 88-44. [Copies enclosed. ]
There appears to be no dispute among the parties that the records sought for inspection by the Courier-Journal are in the possession of five individual "golf professionals." These five individuals serve both as employees of the City of Louisville and as lessees with the Louisville and Jefferson County Parks Department. The City of Louisville has apparently made available for inspection all records and correspondence requested by the Courier-Journal which are maintained by these individual golf professionals in their capacity as employees of the city. Such records and correspondence include receipts of green fees collected by the golf professionals on behalf of the City of Louisville. These are clearly public records in the possession of a public agency, regardless of whether these golf professionals are defined as employees or officers.
However, these individuals also generate and maintain various records in their capacity as lessees with the Louisville and Jefferson County Parks Department. These records pertain to sale of food, beverages, golf supplies, equipment and accessories, and furnishing golf lessons which are "concession" rights granted to these individuals in their capacities as lessees. It is these records which the Courier-Journal apparently wishes to inspect. The records of "concession" money earned and collected by these five individuals is not subject to mandatory audit by the City of Louisville or Jefferson County and the "concession" fees do not at any time become public money so as to constitute funding by state or local authority. Therefore, records pertaining to these transactions are in the possession of private individuals responsible for their generation, maintenance, and storage in their capacity as lessees with the Louisville and Jefferson County Parks Department. These records are therefore not "in the possession of or retained by a public agency" as argued by the Courier-Journal. See OAG 82-216. [Copy enclosed. ]
The Courier-Journal's argument that records maintained by these five individuals relate to the financial operations of the city's golf courses and therefore are "related to functions, activities, programs or operations funded by state or local authority" is also rejected. The City of Louisville does not receive any percentage or portion of "concession" monies collected by these individuals for the sale of food, beverages, golf supplies, equipment and accessories, and furnishing golf lessons to the public. The only monies recieved by the City of Louisville which relate to the financial operations of the Ciyt are the sale of tickets or "green fees." Records of the latter are of course open records and apparently have been made available for inspection. If this argument by the Courier-Journal were accepted, then any person, business, or corporation doing business with a public agency would be required to permit anyone to inspect their business records pertaining to their contractual relationship with the public agency. Such a ruling would have a "chilling effect" and discourage individuals, businesses, and corporations from entering into contracts with public agencies.
This Office has previously opined that a contractor with a governmental entity must accept certain necessary consequences of involvement in public affairs. Such a contractor loses status as a "private individual" in connection with written correspondence with a public agency regarding administration or issues associated with administration of a governmental or public contract. OAG 90-7. [Copy enclosed. ] However, this Office declines to extend this ruling to require contractors to make available to any individual for public inspection, any and all of their business records relating to their contract with the governmental entity, at least in the instant case where such records are not mandatorily audited by the governmental entity.
It is the opinion of the Attorney General that the records sought for inspection by the Courier-Journal do not constitute public records as defined by KRS 61.870(2). You therefore acted consistently with the provisions of the Open Records Law. The Courier-Journal may institute proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court of the district where the records are maintained pursuant to KRS 61.880(5).