Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Bryan Smeathers in connection with his attempts to obtain access to various documents allegedly in the possession or custody of the city of Owensboro.
In a letter to the city clerk of the city of Owensboro, dated March 17, 1994, Mr. Smeathers requested access to the following documents:
All City Manager delegations of authority as defined in KRS 83A.150 (9),
Copy of unemployment contract/agreement between the city and the City Manager,
Minutes of the city commission authorizing the hiring of the current City Manager.
Mr. Smeathers was advised in a letter dated March 18, 1994, and signed by the city attorney and the city clerk as follows:
In response to your open records request dated March 17, 1994, please be advised that the documents you seek to inspect, that exist and are in the custody of the City of Owensboro, will be made available for your
inspection at City Hall, Monday through Friday, during regular business hours (8 a.m. - 5 p.m.). Photo copies will be provided upon request, at the city staff's convenience, at a cost of $ .10 per page.
In another request for access to documents, dated March 17, 1994, Mr. Smeathers, in a handwritten letter, sought to obtain access to seven categories of records. The city clerk responded to Mr. Smeathers in a letter dated March 22, 1994. The first paragraph of the March 22, 1994 letter is similar to the letter to Mr. Smeathers from the city attorney and the city clerk, dated March 18, 1994. The second paragraph refers to Mr. Smeathers's previous requests for the same information and states that he was advised at those times that some of the requested records do not exist.
Mr. Smeathers, in his letter of appeal to this office, received March 31, 1994, complains about the city's responses of March 18, 1994 and March 22, 1994. He maintains that they are vague and nonspecific.
We are aware of the fact that the Open Records Act, on occasion, can cause inconveniences and hardships to a public agency and that a city the size of Owensboro must receive many requests for records. We are certainly cognizant of the fact that Mr. Smeathers files numerous and lengthy requests for records with the city and that he could have initially gone to the clerk's office to ascertain what records he would have actually been given relative to these two requests. The fact remains, however, that the city's two responses are deficient under the Open Records Law.
Two basic questions confront a public agency in any request for access to records. The first question to be answered is whether the document exists and is in possession or custody of the public agency. The second question is if the document exists and is in possession or custody of the agency, must the record be made available for inspection or is it subject to one of the statutorily recognized exceptions to public inspection.
Thus, the city in its responses should have specifically stated the materials requested that do not exist or that it does not have. In OAG 91-101, copy enclosed, we said that an agency obviously cannot furnish records which it does not have in its possession. "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
If the records do exist and are in the city's possession, and inspection is denied, the city should list each document that it will not permit the requesting party to inspect, state the exception to public inspection relied upon, and set forth a brief explanation of how the exception applies to the specific record withheld. See KRS 61.880(1). In addition, if there are any other legitimate reasons for not making the requested records available, such as the fact that those same documents were recently furnished to the requesting party, those reasons should be set forth by the public agency.
For the information and consideration of the parties to this appeal, we are enclosing copies of OAG 88-53, OAG 86-36, and OAG 85-47, all of which deal with the required response of a public agency to a request for access to public documents.
It is the decision of the Attorney General that the responses of the city to the requests for access to documents are not in compliance with the terms and provisions of the Open Records Act. The city should issue another response specifically stating which of the requested records do not exist or are not in the possession or control of the city. As to those records which do exist and which are in the city's possession or custody, and which the city will not permit the requestor to inspect, the city must state the exception to public inspection relied upon and how that exception applies to the specific record withheld.
The City of Owensboro may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the adverse party pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.