Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the City of Corydon in responding to Carolyn J. Kalnins's requests for City records. On January 22, 1996, Ms. Kalnins requested access to, "All copies of City Attorney Dane Shields [sic] constitutional oath of office and surety bond. " On February 7, 1996, she requested access to:
. Records of the appointment of the Corydon City Attorney Dane Shield [sic] from the date initially appointed or hired thru the date of the most recent appointment [;]
. Records of the appointments of the City Clerk from the date initially appointed thru the date of the most recent appointment along with certified copies of the recorded oaths of office and surety bond for each appointment [.]
Ms. Kalnins is a former councilperson for the City of Corydon, and her requests were made under the Open Records Act.
In response to Ms. Kalnins's January 22 request, the City advised:
State law does not require a bond unless required by Council. KRS 62.050(3) City Code Sec. 31.45 (E). City Attorney is an Independent Contractor and has already taken Oath as required when sworn in as an attorney - not required to take subsequent oath.
As independent contract attorney, no bond or oath has ever been required for city attorney of Henderson.
In response to the requests she submitted on February 7, the City advised:
As directed by Mayor Self, Official Custodian of Records for the City of Corydon, you are asked to present your request to inspect public records at a regular meeting of the Corydon City Council.
This appeal followed.
On February 26, 1996, Dane Shields, Corydon City Attorney, contacted this office by letter. In that letter, he stated that the information requested by Ms. Kalnins "was made available at the Corydon City Hall, however, Ms. Kalnins did not appear to inspect the information." Additionally, he noted, "part of the information requested is not in existence, and Ms. Kalnins was notified that the information did not exist." In closing, Mr. Shields stated that "any public information that is authorized by KRS Chapter 61 is available for inspection at the Corydon City Hall."
We are asked to determine if the City of Corydon violated provisions of the Open Records Act in its handling of Ms. Kalnins's January 22 and February 7 open records requests. Although we see nothing wrong with the City's response to her January 22 request, we believe that its response to her February 7 request was violative of the Act.
With respect to her first open records request, we find that the City promptly and properly advised Ms. Kalnins, in so many words, that no records exist which satisfy that request. Ms. Kalnins requested a copy of the City Attorney's oath of office and surety bond. The City responded that he is not required to execute a bond or take any oath other than the oath he takes upon admission to the bar. Since no bond or oath is required for the city attorney, these records could not be furnished to her.
This office has long recognized that a public agency cannot furnish access to records which it does not have or which do not exist. OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. Our decisions in an open records dispute are generally limited to two questions: whether the public agency has in its possession the documents requested, and if it does, whether the document is subject to public inspection. The City of Corydon properly advised Ms. Kalnins that the city attorney is not required to execute a bond or take an oath. In the absence of evidence to the contrary, we must assume the truthfulness of the City's assertions.
We believe, however, that the City's response to Ms. Kalnins's February 7 open records requests was deficient. As noted, the City advised Ms. Kalnins, apparently at Mayor Self's direction, to make her request to inspect public records at a regular meeting of the Corydon City Council. This response contravenes a number of provisions of the Open Records Act, as well as the basic tenets which inform the Act. KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In 94-ORD-101, p. 3, this office recognized, "A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)." Thus, an agency may require, as a precondition to inspection of public records, that an applicant submit a written request, that he sign the request, that he print his name legibly on the request, and that he describe the records to be inspected. "We believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2.
Moreover, we have observed on more than one occasion that a mayor cannot, by executive fiat or any other device, regulate access to records in a manner which conflicts with the Open Records Law. 92-ORD-1136, p. 1. In OAG 82-435, at p. 2, we observed:
In enacting the Open Records Law, KRS 61.870 - 61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
See also, OAG 82-518, at p. 1 ("The Mayor does not have the authority to countermand the requirements of the Open Records Law. ").
Mayor Self has apparently directed the custodian of records for the City of Corydon to notify requesters that they must present their open records requests at the regular meetings of the City Council. In so doing, he has placed impermissible restrictions on access to public records. We find nothing in the Act which supports such a requirement. The fact that Ms. Kalnins may have submitted similar requests at an earlier date, or that she failed to inspect records at an appointed time, as Mr. Shields alleges, has no bearing on this issue. If the City of Corydon believes that her requests are unreasonably burdensome, or that they are intended to disrupt its essential functions, the City can invoke KRS 61.872(6). If its invocation is supported by clear and convincing evidence, we will sustain its actions. Having failed to do so, we find that the City violated provisions of the Open Records Act in its responses to Ms. Kalnins's February 7, 1996, requests.
We also note that Attorney Shields's letter of February 22, 1996 recognizes this deficiency and attempts to correct it. The City must make available for inspection those records which exist and are open under KRS Chapter 61. However, neither Mayor Self nor the City can "regulate" the time or manner in which Ms. Kalnins, or any other person, must request public 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.