Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Ludlow Volunteer Fire Department violated the Open Records Act in its disposition of Christine Anderson's March 3, 2000, request for copies of "financial records of the . . . Department for fiscal year 1997-98." Ms. Anderson personally served her written request on Gary Hatter, president of the fire department, who apparently refused to accept service. This prompted Ms. Anderson to initiate an open records appeal on March 9. For the reasons that follow, we find that the fire department's response was procedurally and substantively deficient, and that it is statutorily obligated to disclose all financial records for 1997-98, including, but not limited to, budgets, check ledgers, invoices, and receipts, in its possession and in the possession of its independently retained counsel.
On March 21, 2000, Steven C. Martin, an attorney in the law firm of Aronoff, Rosen & Hunt, responded on behalf of the fire department to this office's notification of receipt of Ms. Anderson's appeal. Mr. Martin advised:
We are in the process of gathering documents which would be responsive to the request made through your office for an open records production by the Ludlow Volunteer Fire Department. The documents we are producing are limited by several factors. Your office may or may not know that the City of Ludlow has for some time been suffering through a financial/budgetary crisis. Documents are very difficult to find as a result. Currently the Ludlow Volunteer Fire Department is unable to supplement their files with the City of Ludlow records which actually show payments made to the Fire Department. Those documents are unavailable and a request for them to the City has been refused.
Also, there is an ongoing investigation into the Ludlow Volunteer Fire Department finances. As a result, all of the documents through 1998 are in the possession of independent counsel. That attorney's name is Tim Feldhaus. Currently the Ludlow Volunteer Fired Department has none of those documents. Your office may be able to shed some light since I believe the investigation which was instigated by the Ludlow Police Department is actually being handled by the Attorney General's Office.
In closing, Mr. Martin observed that the fire department "cannot produce documents which it does not have," but expressed the department's willingness to "produce budget documents" in its possession, and to "supplement . . . production once the request is made more specific." He added that the fire department "will also cooperate with obtaining responsive documents from counsel," meaning, we presume, Mr. Feldhaus.
It is the opinion of this office that the Ludlow Volunteer Fire Department violated the Open Records Act by refusing to accept service of Ms. Anderson's open records request and to respond, in writing, to that request within three business days. KRS 61.880(1). Moreover, it is our opinion that the delinquent response submitted on behalf of the fire department did not state a sufficient legal basis for postponing, partially denying, or denying in full, Ms. Anderson's access to clearly nonexempt public records.
We begin by noting that although Mr. Martin initially expressed doubts about the applicability of the Open Records Act to the Ludlow Volunteer Fire Department, insofar as the department "is not a local government department, division, bureau, board, commission . . . authority . . . [or] special taxing district," he apparently retreated from this position in later correspondence. In 96-ORD-120, the Attorney General commented on the applicability of the Act to various types of fire departments:
Among the types of fire departments are city fire departments (KRS Chapter 95), county fire departments (KRS 67.083(3)(u)), and fire district fire departments (KRS Chapter 75). All of these would be a public agency as the term is defined in KRS 61.870(1) and thus subject to the terms and provisions of the Open Records Act.
A fourth kind of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16.
96-ORD-120, p. 3. The Ludlow Fire Department falls into the fourth category of fire departments, and acknowledges its status as a public agency for open records purposes because it receives 25 percent or more of its funds from state or local authority funds. Compare 96-ORD-120 (Dry Ridge Rural Volunteer Fire Department, Inc., is not a public agency because it was organized as a nonprofit corporation and receives less than 25% of its funds expended in the state from state or local authority funds).
This being the case, the Ludlow Volunteer Fire Department is subject to the procedural requirements of the Open Records Act, set forth at KRS 61.880(1), upon presentation of an open records request. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The fire department cannot avoid its statutory duties under the law by refusing to accept service of a request, and its failure to respond in writing, and within three business days, to Ms. Anderson's open records request constituted a violation of the Open Records Act. We urge the department to review the cited provision to insure that future responses conform to the requirements of the Act.
Turning to the substantive issues in this appeal, we find that the fire department does not state a legally sufficient basis for denying Ms. Anderson access to its 1997-98 financial records, in part or in full, and that it does not advance a reasonable explanation for postponing access. Clearly, the disputed records are nonexempt public records. As this office has so often noted, "Amounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. Stated alternatively, "Where public funds go, the public's interest follows." 96-ORD-50, p. 4.
In defending its inability to produce financial records for the 1997-98 fiscal year, the fire department does not invoke one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), but instead asserts that City of Ludlow records showing payments made to the department are "difficult to find" due to a city financial/budgeting crisis. Additionally, the fire department maintains, the Attorney General's Office is currently investigating department finances, and "as a result, all of the documents through 1998 are in the possession of independent counsel . . .[,] Tim Feldhaus[,]" and not in its possession. With respect to city records supplementing department records, we merely note that Ms. Anderson did not request supplemental city financial records, but confined her request to "financial records of the Ludlow Fire Department. " Because Ms. Anderson did not request supplemental city records relating to the fire department, the department has no obligation to produce them for inspection.
With respect to its own financial records through 1998, the department's argument that they are in the possession of "independent counsel, " Mr. Feldhaus, is unpersuasive. At Mr. Martin's suggestion, on March 28 we contacted the Public Corruption Unit of the Attorney General's office to ascertain the nature of its investigation, and Mr. Feldhaus's role in the investigation. We were advised that the office's ongoing investigation is confined to charitable gaming issues, and that, in fact, Mr. Feldhaus represents the fire department in this matter. Given these facts, we find no support for the department's position that it cannot disclose the documents because they are not in its possession. In 95-ORD-114, this office addressed a similar question. There, a requester sought access to a United States Department of Justice letter that had been sent to a county hospital. The hospital defended its inability to produce the record, asserting that the letter was in the possession of the hospital's attorney. We rejected this argument as a basis for denying access, reasoning that "the hospital cannot circumvent the requirements of the Open Records Act by stating its attorney has the requested document . . . [since] the attorney [has] possession of the document . . . in his capacity as counsel for the hospital." 95-ORD-114, p. 2. Compare, 97-ORD-15 (University is not obligated to retrieve, and provide a copy of, signed agreement between faculty member, acting in his private capacity, and private attorney, because possessor of record is not a public agency and agreement is not a public record) . As noted, the records at issue in this appeal are clearly public records, and the fire department is obligated to retrieve them and furnish Ms. Anderson with copies forthwith.
In closing, we note that Mr. Martin's response on behalf of the department suggests a willingness to produce responsive documents as time and circumstance permit. The Open Records Act does not allow such latitude in producing nonexempt public records. Timely access to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; KRS 61.880(1). The burden on the agency to produce public records in three working days is, not infrequently, an onerous one. Nevertheless, the only exception to this general rule is found at KRS 61.872(5), which provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The Ludlow Volunteer Fire Department's assertion that the requested records are in the possession of its attorney, Mr. Feldhaus, does not constitute a sufficient legal basis for postponing Ms. Anderson's access to the records. Nor does its assertion that her request is nonspecific. Ms. Anderson requested an identified category of records, namely, financial records, for a limited period of time, namely, the 1997-98 fiscal year. In so doing, she satisfied the requirements of both KRS 61.872(2) and KRS 61.872(3)(b). Consistent with the principles set forth above, we believe it is incumbent on the fire department to discharge its duties under KRS 61.880(1) by furnishing her with copies of those records in a timely fashion.
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.