Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Louisville's responses to Mr. Royden K. Cullinan's series of requests to inspect certain records of the City.
By letter dated July 25, 1996, Mr. Cullinan requested to inspect the following records:
Any work product, memoranda or other correspondence generated pursuant to PSCs 96-3825, 96-3751, 96-2363, 96-3758, 96-3771, and 96-3794 between various aldermen and James W. Hill, Jr.
By letter dated July 31, 1996, Mr. Paul V. Guagliardo, Senior Attorney, City of Louisville, denied Mr. Cullinan's request, by stating:
First, to the extent your request is for "any work product, memoranda or other correspondence. .." your request is too broad and does not describe records with reasonable particularity. Your blanket request is so non-specific as to preclude the custodian from determining what records it encompasses. KRS 61.872; OAG 91-58; 95-ORD-108; 96-ORD-95. I am advised that the records you seek are not contained in any file or category by author.
Secondly, if such records exist, they are exempt under KRS 61.878(1)(i)(j) or (1) (preliminary, intra-office notes, memos, containing recommendations, opinions, attorney-client privilege; attorney work product; confidential by state law).
As you well know, Mr. Hill is an attorney who has been employed by means of a personal service contract by the Board of Alderman. You wish to see an attorney's "work product, memoranda or correspondence" generated between him and his client. The records you seek, if they exist, clearly constitute records exempt under the subsections cited above.
By letter dated August 7, 1996, Mr. Cullinan resubmitted his request, attempting to describe the requested records with reasonable particularity. In this request, Mr. Cullinan states:
I wish to examine the documents (except for billing records) generated pursuant to:
PSC 96-3825, with James W. Hill, Jr. by Alderman Bebe Melton
PSC 96-3751, with James W. Hill, Jr. by Alderman Bill Wilson
PSC 96-2363, with James W. Hill, Jr. by Alderman Bill Wilson
PSC 96-3758, with James W. Hill, Jr. by Alderman Dan Johnson
PSC 96-3771, with James W. Hill, Jr. by Alderman Dan Johnson
PSC 96-3794, with James W. Hill, Jr. by Alderman Dan Johnson
After the required search for the records has been completed, please adhere to the requirements of the Open Records Act by identifying any specific documents you intend to withhold, and by citing how any purported exception applies to said records.
As you know, not all of an attorney's records are automatically exempt from the Act, and it is improper to claim attorney-client privilege until you have identified those specific records which qualify for exemption.
By letter dated August 16, 1996, Mr. Guagliardo denied Mr. Cullinan's resubmitted request again on the same basis stated in his July 31 letter and further explained:
The instant request is broader and less descriptive than the July 25th request. Your request to examine "[any and all] documents (except for billing records) generated pursuant to" the same PSC's identified in your July 25th letter is so non-specific as to preclude the custodian from determining what records it encompasses. KRS 61.872; OAG 91-58; 95-ORD-108; 96-ORD-95. I am advised that if the records you seek even exist, they are not contained in any file or by category by author, PSC contract number or aldermen. Secondly, if the records exist, they are exempt under KRS 61.878(1)(i), (j) or (l) for the same reasons listed in my July 31 letter to you, including but not limited to preliminary, intraoffice notes, memos; attorney-client privilege; attorney-work product.
By letter dated August 27, 1996, Mr. Cullinan again attempted to restate his request. This time, Mr. Cullinan recast his request in the following terms:
Pursuant to the Open Records Act, I wish to inspect the following public documents, all of which pertain to contracts with James W. Hill, Jr. If there are none, please so state as to each request.
Request # 1
According to City records, on May 7, 1996, Mr. Hill was paid $ 2,850.00 under PSC 96-3825 with Alderman Melton for 28.5 hours for "Review of Open Records Request Compliance." I wish to inspect any reports or other documents deriving from this review.
Request # 2
According to City records, on April 25, 1995, Mr. Hill was paid $ 3,096.00 under PSC 95-3691 with Alderman Melton and Alderman Wilson for 38.7 hours for "Ethics Law" from August, 1994 to December, 1994. I wish to inspect any reports or other documents deriving from these referenced services.
Request # 3
According to City records, on December 22, 1995, Mr. Hill was paid $ 2,400.00 under PSC 96-3794 with Alderman Johnson for 24 hours for "airport expansion and street closings." I wish to inspect any reports or other documents deriving from these referenced services.
Request # 4
According to City records, on October 27, 1995, Mr. Hill was paid $ 2,500.00 under PSC 96-3771 with Alderman Johnson for 25 hours for "research & meetings for July, August & September." I wish to inspect any reports or other documents deriving from these referenced services.
Request # 5
According to City records, on September 19, 1995, Mr. Hill was paid $ 1,600.00 under PSC 96-3758 with Alderman Johnson for 16 hours for "Alcohol Beverage Research." I wish to inspect any reports or other documents deriving from these referenced services.
Request # 6
According to City records, on August 17, 1995, Mr. Hill was paid $ 5,500.00 under PSC 96-3751 with Alderman Wilson for 55 hours, with no detail provided as to the services rendered. I wish to inspect any reports or other documents deriving from these referenced services.
Request # 7
According to City records, on July 26, 1995, Mr. Hill was paid $ 5,500.00 under PSC 96-2363 with Alderman Wilson for 55 hours for "research & meetings related issue development." I wish to inspect any reports or other documents deriving from these referenced services.
By letter dated September 4, 1996, Mr. Guagliardo responded to this latest of Mr. Cullinan's request, stating:
This is in response to your Open Records request of August 27, 1996. Your letter contained seven separate "any and all" - type requests for records concerning aldermanic PSC's.
Your request is too broad to be able to give any categorical replies. However, at this time, I am advised that no such records "deriving" from the contracts in question can be located. If any such records existed, they would be exempt under KRS 61.878(1)(i)(j) and (l) (preliminary, inter office, recommendations, opinions, attorney-client, attorney work product) .
After receipt of the letter of appeal and, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Guagliardo provided this office with a written response to the issues raised in the appeal. In this response, Mr. Guagliardo reiterated that the City's position was still as stated in its July 31 reply. He states that "Mr. Cullinan's blanket, open-ended, any-and-all-records-that-relate type of request was too broad because there is no reasonable way to determine how many records could be implicated or the nature of the records.
Mr. Guagliardo states he explained to Mr. Cullinan that any such documents which might exist were not contained in any file by author, PSC contract or aldermen. He further explained to him that the City could give no categorical response as to the existence of an unspecified document.
We are asked to determine whether the responses of the City were consistent with the Open Records Act. For the reasons which follow, we conclude that the responses of the City were not consistent with the Act.
KRS 61.880(1) requires that a public agency advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, the agency should list each document which it will not permit the requesting party to inspect and state how the inspection relied upon applies to the particular record withheld from inspection. If the record sought for inspection does not exist, the agency should specifically so indicate.
In 95-ORD-96, this office articulated a standard by which to measure the adequacy of an agency's search for a record. There we held that an agency must make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. Moreover, the agency, if the requested records could not be located, should describe the efforts it made to locate those records. 96-ORD-48.
We believe that Mr. Cullinan's last attempt to describe the records he was seeking to inspect was sufficiently specific to advise the City as to the records sought. In its response to this last request, the City indicated that any such records which might exist were not in any file by author, PSC contract or alderman. This response does not adequately describe the efforts the City made in conducting its search or that the search method used could reasonably be expected to produce the requested records.
It is the decision of this office that the City's response to Mr. Cullinan's last request was inconsistent with the Open Records Act to the extent that it failed to adequately describe the efforts made to locate the records in question. Accordingly, the City should respond to this last request of Mr. Cullinan's by describing the efforts made to locate the records and explain why the methods used could be reasonably calculated to locate the requested records, if they existed.
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.