TO BE PUBLISHED
97-OMD-49
March 24, 1997
In re: Theodore Steward/City of Walton
Open Meetings Decision
This matter comes to the Attorney General as an appeal by Theodore Steward in connection with his complaint against the city of Walton relative to special meetings.
Mr. Steward, in a letter received March 10, 1997, states that he is appealing the city's refusal to provide him with copies of the times and dates of all faxes sent to the newspaper of record concerning all special meetings held by the city in 1996. In letters to the mayor, dated December 9, 1996, January 24, 1997, and February 26, 1997, he requested printed proof of the times and dates of all faxes sent to the newspaper of record in 1996 pertaining to special meetings of the city.
Documents accompanying Mr. Steward's letter of appeal reveal materials he received from the city relative to six special meetings held in 1996. The acting city clerk had certified that notices of all special meetings, except for the special meeting of May 9, 1996, were faxed to The Kentucky Post twenty-four hours prior to the time the meetings were held.
On March 19, 1997, this office received a letter, with attachments, from Terry R. Edwards, the attorney for the city of Walton. Mr. Edwards stated that both he and the mayor responded to Mr. Steward's letter of December 9, 1996, and the city clerk responded to Mr. Steward's letter to the city, dated January 24, 1997. Mr. Edwards produced documents indicating City Clerk Ann Leake certified that notices of the special meetings of July 2, September 12, October 10, October 29, and October 30, 1996, were faxed to The Kentucky Post twenty-four hours prior to the times those meetings were held.
Ms. Leake did not issue a certification relative to the May 9, 1996 meeting because she was not the city clerk at that time. Mr. Edwards stated that the person serving as city clerk in May of 1996 would be able to certify that the notice for that special meeting was faxed to the newspaper at least twenty-four hours prior to the meeting.
It is the city's position that although printed proof is not available that the notices were timely faxed, the city clerk's certifications that such faxes were sent to the newspaper at least twenty-four hours prior to the special meetings are prime facie proof that they were timely sent. Also, the city's fax machine does not provide printed proof as to when messages were sent, according to Mr. Edwards.
The Open Meetings Act has provisions dealing with special meetings and the city's duties and obligations when such a meeting has been called. KRS 61.823 pertains to special meetings and subsection (4)(a) of that statute provides in part:
As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting.
The statute requires in part that a written notice of a special meeting be delivered, faxed, or mailed to a newspaper which has filed a written request to receive notice of special meetings. That was done in this case as the city clerks have certified or, in the case of the May 9, 1996 meeting, would certify that notices of the special meetings were timely faxed to the newspaper of record. There is no evidence that the newspaper was not timely notified of the special meetings. The newspaper has neither filed an appeal nor produced any statement relative to the city's failure to furnish timely notices of special meetings. Even the complaining party seems to be more concerned with the city's failure to furnish printed documents produced by the facsimile machine as to the precise date and time when the notices were faxed rather than disputing the certification of the clerks that the notices were timely sent.
It is, therefore, the decision of the Attorney General that the city has complied with the requirements of KRS 61.823(4)(a) as the record indicates that notices of special meetings were timely faxed to the newspaper which had filed a written request with the city to be notified of special meetings.
The complaining party, Mr. Steward, has stated that the city failed to furnish him with printed proof of the times and dates of all faxes sent to the newspaper in 1996 concerning special meetings. The city attorney maintains that the city's fax machine “does not provide such printed proof.” Mr. Steward has been furnished with copies of certifications of the city clerk that notices of special meetings were timely faxed to the newspaper.
In connection with the Open Records Act (KRS 61.870 to KRS 61.884) and a public agency's obligation to furnish copies of records, this office has consistently concluded that a public agency cannot be required to furnish copies of documents which it does not have or which do not exist. While the city attorney subsequently stated that the city's fax machine does not provide the kind of printed proof sought by the complaining party, the city in its initial response to Mr. Steward should have advised him as to whether the documents he requested access to actually existed or were in the city's possession. See 96-ORD-101, 96-ORD-141, and 96-ORD-164, copies enclosed.
It is the decision of the Attorney General that the city did not violate the provisions of the Open Records Act when it failed to furnish copies of documents which it does not have or which do not exist.
A party aggrieved by this decision may challenge it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a), KRS 61.848, KRS 61.880(5), and KRS 61.882. Pursuant to KRS 61.846(5) and KRS 61.880(3), the Attorney General must be notified of any action filed in the circuit court but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings and Open Records Acts.
A. B. Chandler III
Attorney General
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been distributed to:
Theodore Steward
60 High Street
Walton, Kentucky 41094
Terry R. Edwards
Dallas, Neace & Koenig
Star Bank Building
7992 Dixie Highway
Florence, Kentucky 41042