Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the response of the Office of the Russell County Judge/Executive to Paul B. Osborne's March 31, 1998, open records request to inspect or make copies of any and all documents necessary to determine:
. . .
1. Actual copies of any checks written from the funds of Russell County government to the "Charles M. Smith Coca Cola Fund" (name approximate) between January 1, 1994 and March 1, 1998, and actual copies of any and all checks written on or debited to said Fund during said period.
By letter dated April 6, 1998, Charles M. Smith, Russell County Judge/Executive, responded to Mr. Osborne's request, stating in relevant part: "3. Generators are located at Russell County Garage . . . 5. No checks were written from the funds of Russell County Government to the "CMS Coke Fund."
In his letter of appeal, Mr. Osborne, regarding request number 3, states, in part, that the response is unresponsive because it "simply provides the location and ignores my request for the status of said generators. " As to request number 5, he states that the response was not responsive to his request. Mr. Osborne described this portion of his request, in part, as follows:
The subject matter of this Item is a soda machine located in the Russell County Courthouse. This machine is located on Russell County government property, the electric bill for said machine is paid out of Russell County Government funds, the records for said machine are kept in the office of Russell County Judge Executive Charles M. Smith, and an employee of that office has, from time to time, has been charged with keeping those records and even writing checks that debit the "CMS Coke Fund."
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Office of the Russell County Judge/Executive. As authorized by KRS 61.880(2) and KAR 1:030, Section 2, Judge Smith provided this office with a response to the issues raised in the appeal. In his response, Judge Smith states:
In regard to question number 1, regarding some generators the county owns. Our response was that they were located at the county garage. I was unaware that we had loaned one to the Russell County Rescue Squad for use in emergency situations. Mr. Osborne stated that he was unable to gain access to this building. I am not in charge of this building and therefore have no access to it. I'm sure if he would contact the Rescue Squad they would let him see the generator.
Question number 2 is in reference to a personal fund. Mr. Osborne's request was for copies of checks written from funds of Russell County Government to this fund. As I stated in my response to Mr. Osborne, there were no checks written from the funds of Russell County Government to this fund, therefore my response was accurate.
The question presented here is whether the responses of the Office of the Russell County/Judge Executive were consistent with the Open Records Act. For the reasons set forth below, we find that the responses were consistent in part and inconsistent in part with the Act.
Mr. Osborne requested to inspect and make copies of any and all documents necessary to determine the "status and location of all generators purchased by Russell County." The agency's response was: "Generators are located at the Russell County Garage." Mr. Osborne argues this response is unresponsive because it does not provide him with information as to the status of the generators.
To begin, this office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Our position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given request.
In 97-ORD-6, regarding response requirements under the Open Records Act, this office observed:
While it is certainly true that public agencies are not required to compile information to satisfy [a request for information], we believe that agencies are required to make available for inspection, during normal business hours, records that might yield the information sought. (Emphasis in original.)
Although the response provided Mr. Osborne with at least some of the information he was seeking, it was deficient, to the extent it failed to advise whether public records existed which would provide him with the requested information. If such records exist, they should be made available for Mr. Osborne's inspection. If no such records exist, the agency should affirmatively so state.
Mr. Osborne further argues that the County Judge/Executive was unresponsive to his request for copies of any checks written on or debited to the "CMS Coke Fund."
Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 2, the undersigned contacted Judge Smith by telephone in order to obtain more information about the "CMS Coke Fund." Judge Smith explained that the coke fund was a personal checking account in his name in which receipts from the sale of cokes from a coke machine located in the county courthouse were deposited. In addition, donations given to him for performing marriages were also deposited into the account. He indicated that the coke fund account has been closed out. Judge Smith said that funds from the account, when active, were used to make donations to organizations, such as the Little League, and for other public-spirited purposes.
Thus, from the facts presented this office, receipts from the coke sales are generated by a facility (coke machine) on county property (county courthouse) , the electric bill for running the machine, in all likelihood, paid out of county funds, and the County Judge/Executive comes into the possession and control of them, presumably as a result of his office. We believe these facts establish a close enough connection to public agency activity that records related to the coke sales are public records. No facts have been presented establishing that the operation of the coke machine and sale of cokes was a private endeavor.
In OAG 80-525, after holding that a jailer could not lawfully run a jail commissary for profit, this office held that the jailer was still obligated to keep records on the commissary whether he was operating at a profit to himself or not. In reaching this result, we stated:
Since the jailer is carrying on the commissary operation, though the operation is not treated by statute, it is our opinion that he should maintain commissary records. If he does not maintain such records, then there is no adequate basis for determining whether he is operating at a profit to himself or not. Since this is a public office, the public is entitled to know, one way or the other. Especially is this true, since he has no statutory mandate to run the commissary. Such records, for the reasons given, take on the nature of public records.
By the same reasoning, records relating to the coke fund would be public records and subject to disclosure under the Open Records Act. Absent review of the records in the coke fund, there would be no adequate basis for the public to assess the disposition and accountability of the coke sale receipts. Accordingly, copies of checks written to or debited to the fund, if available, should be made available for Mr. Osborne's inspection.
Finally, Mr. Osborne requests that, because he had evidence that the Russell County government had purchased more than the three generators alleged in Judge Smith's April 6, 1998 response, that this office opine whether or not perjury was committed by the Russell County Judge/Executive.
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated provisions of the Open Records Act. 96-ORD-142. An allegation of perjury is not an issue capable of resolution under the Open Records Act.
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.