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 comes to the Attorney General on appeal from the Housing Authority of Falmouth's denial of Tamara Steele's July 1, 1998 open records request, as a Commissioner of the Housing Authority, to have "a monthly accounting report on all expenditures" sent to her. Ms. Steele requested that the report include:
-Occupancy statistics and vacancies;
-Rent collections and evictions;
-Maintenance, procurement and contracts;
-Staffing (to include salaries, bonuses, hiring, terminations, etc.; and
-Budget expenditures and financial status.
By letter dated July 2, 1998, Rocky A. Hughes, Chairman of the Housing Authority, denied Ms. Steele's request. In his letter, Mr. Hughes stated, in part:
The Housing Authority of Falmouth is not required to prepare "special" reports solely for the convenience of a particular Commissioner. Any interim or preliminary reports, whether they be monthly or quarterly, which are prepared, pursuant to HUD regulations, as part of the annual audit process ought to be made available to a Commissioner even if they are not otherwise a public record because of their preliminary nature . . . In short, it is my opinion that you are entitled to review any information or documents in the possession of the Housing Authority of Falmouth, but you cannot require that the Housing Authority "create" special documents summarizing or otherwise compiling the information in a manner to suit your perception of how the requested information should be categorized.
In closing, such documents in which you will be able to review the requested information would be in the 1997 audit, which was reviewed at the last board meeting, the 1999 budget, which was reviewed and approved by resolution at the April board meeting, and the Report on Occupancy, which is filed at HUD every year. However, in accordance with Section .08 of the Housing Authority's Open Records Policy and also KRS 61.872 (5), the Housing Authority of Falmouth has the right to refuse to permit inspection of the public records if they feel that the application places an unreasonable burden by requiring the production (and/or creation) of voluminous public records or if they believe that repeated requests are intended to disrupt other essential functions of the agency.
Along with her letter of appeal, Ms. Steele enclosed two pages from the Public Housing Commissioner Handbook. She highlighted the following language:
Commissioners should require a monthly accounting report on all expenditures. Commissioners should also require the Executive Director to brief them at least monthly on:
To function properly, Commissioners must have knowledge of the financial status and quality of PHA operations, and an understanding of the program requirements.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and enclosed a copy of Ms. Steele's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, R. Gregory Lathram, Counsel for the Housing Authority of Falmouth, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Lathram stated that, after consulting with general counsel for the United States Department of Housing and Urban Development - Louisville, (HUD) the Housing Authority would rely upon Mr. Hughes initial response provided to Ms. Steele. He summarized that response as follows:
You will note that Mr. Hughes' response essentially is Ms. Steele [is] entitled to review and copy any document in Housing Authority files in her capacity as a Commissioner. However, the Housing Authority will not undertake to create a document which does not exist. As you may be aware, HUD regulations require that a Housing Authority maintain certain documents to receive Federal funding for the programs it administers.
Mr. Lathram further stated that the Housing Authority did not have the staff or the funds to create new management reporting programs simply because Ms. Steele wanted already available information in a different format. He added:
As a practical matter, it would appear that the information sought by Ms. Steele, such as 1997 financial audit and the 1997 Report on Occupancy, already is available and has been reviewed by Ms. Steele. In addition, as pointed out by Mr. Hughes in his letter to Ms. Steele dated July 2, 1998, there are bimonthly reports distributed to the Commissioners prior to each meeting containing most of the statistics requested by her.
In addition to Mr. Lathram's response, Mr. Hughes also provided this office with a response to the letter of appeal. In this response, he reiterated that Ms. Steele's information requests were appropriate and she could have access to any documents at the Housing Authority. He further explained:
All of the information requested by Ms. Steele is available in some format, pursuant to HUD regulations regarding the administration of public housing authorities which are financed entirely with Federal funds. The information requested by Ms. Steele is available either bimonthly, quarterly, or annually under HUD regulations and is routinely distributed to all Commissioners on that basis.
We are asked to determine whether the responses of the Housing Authority was consistent with the Open Records Act. For the reasons which follow, we conclude that the Housing Authority properly denied Ms. Steele's open records request.
It is well settled that a public agency is not required to create a document that does not already exist in order to satisfy an open records request. 95-ORD-82. Moreover the Kentucky Open Records Act was not intended to provide a requester with particular information or to require public agencies to compile information to conform to the parameters of a given request. 98-ORD-41.
In its responses, the Housing Authority stated that the report which Ms. Steele requested does not exist and it was not required to create such a document. The Housing Authority further advised Ms. Steele that all the information she seeks is available in Housing Authority records which the agency has agreed to provide to her, including preliminary records which she would be entitled to see in her capacity as a Commissioner of the Housing Authority. Accordingly, under these facts, we conclude the Housing Authority's responses to Ms. Steele's request were consistent with the Open Record Act and prior decisions of this office.
Furthermore, in 96-ORD-64, we held that it is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency's in deciding what records need to be created or retained. Thus, we do not consider whether such a record needs to be created. In this regard, the agency indicated that its records are maintained as HUD regulations require them to be in order to receive federal funding for the program it administers.
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.