Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Plantation's response to Becky Peak's open records request to the City's Mayor violated the Open Records Act. 1 For the reasons that follow, we conclude that the City's response did not violate the Act.
By letter dated April 29, 2002, Ms. Peak, a City Council member, made the following request to Joseph P. Donnelly, Mayor, City of Plantation:
Attached is a copy of a request previously submitted under the Open Records Act. Also attached is the written response from the City Clerk/Treasurer. As I again begin to prepare for the budget that you will propose, I request all related materials, documents, and official records regarding the bid specifications, Requests for Proposals, and a summary of all proposals received and evaluated for the current city contracts for:
a) police services
b) garbage services
c) Auditing/financial services
d) Attorney/legal services
e) Snow and ice removal
This request is made under the Open Records Act and Kentucky Revised Statute 61.878. Therefore, I will expect a written response from you by Friday, May 3, 2002.
The record before us does not indicate that a response was provided to Ms. Peak's request to the Mayor within three business days after the City's receipt of the request, as required by KRS 61.880(1). Failure to timely respond to the request constitutes a procedural violation of the Open Records Act.
After receipt of Notification of the appeal and a copy of the letter of appeal, C. Patrick Carrico, counsel for the City, provided this office with a response to the issues raised in the appeal. As to the Mayor's response to Ms. Peak's request, Mr. Carrico, in relevant part, advised:
7. Regarding the April 29, 2002 request by Ms. Peak, to the Mayor (copy of which is attached and is incorporated hereto as "Exhibit K-1":
Ms. Peak's request was for access to materials, documents and records regarding "bid specifications, Requests For Proposals," and a "summary" of all proposals received and evaluated for the certain "current" city contracts. The Mayor provided no such materials, documents or records, for the following reasons"
"For police services"
a. The City neither received nor prepared any formal, written bid specifications, issued no requests for proposals, and did not prepare any written summary of proposals received and evaluated. The mayor orally investigated the City's available options, and summarized orally to the City Council concerning such matters at its regular meeting on July 24, 2000. (A copy of the minutes of that meeting is attached as "EXHIBIT L" hereto. Those minutes show the Council approved an agreement to accept services from the City of Graymoor-Devondale. The agreement was formalized in the form of Resolution No. 1, series 2000-2001 (copy of which is attached hereto as "EXHIBIT M"), approving execution of the interlocal agreement for such services between the two cities (the Interlocal Cooperation Agreement being "EXHIBIT N" attached hereto).
"Garbage services"
b. Prior to the June 25, 2001 City Council Meeting, Ms. Peak on more than one occasion informed the assembled Council during regular meetings that she was employed in some sort of procurement capacity for a private corporation, and that consequently she had a special interest in the City's procurement practices and procedures. She specifically requested that the Mayor allow her personally to negotiate bids on behalf of the City for the garbage collection contract. The Mayor granted her request. (A copy of the City Council's June 25, 2001 regular meeting, confirm Ms. Peak's direct involvement in such negotiations. ) (A copy of those minutes is attached and is incorporated hereto as "EXHIBIT O".)
Thereafter, Ms. Peak orally informed the Clerk that "there is not enough time for formal bids and specifications" for garbage collection services before the approaching deadline for adoption of the City's annual fiscal budget. Therefore, Ms. Peak told the Clerk, she (Ms. Peak) was recommending that the City Council simply negotiate an extension of the existing contract with Rumpke of Kentucky, Inc. The Mayor was informed of Ms. Peak's recommendation. The result of the aforementioned negotiations was an agreed extension of the existing contract, as evidenced by Rumpke's August 2, 2001 letter (copy of which is attached as "EXHIBIT P" hereto.), and by an Addendum to the contract (copy of which is attached as "EXHIBIT Q" hereto). Services currently provided to the City by Rumpke are pursuant to that agreement.
Previous to Ms. Peak's taking office as a member of the City Council, the Council on July 24, 2000 initially had approved the contractual arrangement with Rumpke. The Mayor informed Council that the City had received oral proposals from Rumpke and BFI. He summarized both (as disclosed by the minutes of that meeting, copy of which is attached hereto as "EXHIBIT L".) The council approved by motion the agreement with Rumpke (see EXHIBIT L).
"Auditing/financial services"
c. There is not now, and there never has been, to the Mayor's knowledge, any written bid specification, written request for proposal, or written summary of the City's arrangement with its certified public accountant, Welenken Himmelfarb, & Co., CPA, for accounting services. The Clerk routinely prepares the municipality's books of account. Welenken Himmelfarb conducts and provides the City with reports of its audits. That firm presents the City with an invoice for its fees, immediately following each separate audit. This arrangement has been in existence, continuously, since 1996 or [1997].
"Attorney/legal services"
d. I have served the City as its attorney for more than ten years, perhaps closer to 15 years. There is not now, and there never has been, to my knowledge, any written bid specification, written request for proposal, or written summary of this contractual arrangement between me and the City. I bill the City for my services at the rate of $ 75.00 per hour, from time to time. Approximately, ten years ago, I unilaterally increased the fee rate from $ 65.00 to $ 75.00 and the City Council approved that increase.
"Snow and ice removal services"
e. There is not now, and there never has been, to the Mayor's knowledge, any written bid specification, written request for proposal, or written summary of the City's arrangement with Twin Mac Services, of Crestwood, Kentucky, for snow and ice removal, and for sanding, on the City's paved rights of way. The agreement was arrived at orally, without written documentation of any sort. It provides that if accumulated snowfall is one inch or more, Twin Mac automatically plows. Typically, no member of the City administration or of the Council specifically requests that such services be performed. Likewise, with respect to the occasional sanding of the paved streets. After plowing and/or sanding, Twin Mac sends its invoice for payment, and the Council routinely authorizes the Clerk to pay.
We are asked to determine whether the response of the City to this request of Ms. Peak violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of the noted procedural violation, the response did not constitute a violation of the Act.
A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request regardless of whether it has the requested records or not. KRS 61.880(1) provides in relevant part:
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.
"The procedural requirements of the Open Records Act, " this office has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p.5. Nothing in the statute relieves the agency of the duty to comply with these requirements when the records identified in the request are not in its custody or do not exist. The failure to respond to Ms. Peak's request in writing within three business days after its receipt constituted a procedural violation of the Open Records Act.
Addressing the substantive issue, the City, in its response to the letter of appeal, has advised this office and Ms. Peak that the requested records do not exist and explained why. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Thus, we conclude the City's response to the letter of appeal, was in substantial compliance with the Open Records Act, by affirmatively advising Ms. Peak that the City had no records pertaining to her request for "bid specifications, Requests for Proposals, and a summary of all proposals received and evaluated for the current city contracts" for the identified services and a detailed explanation as to why no such records 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.
Becky Peak2526 Hermitage WayLouisville, KY 40242
Joseph P. Donnelly8506 Saurel DriveLouisville, KY 40222Linda HauberP.O. Box 22698Louisville, KY 40222
C. Patrick Carrico40555 Shelbyville RoadLouisville, KY 40207-3106
Footnotes
Footnotes
1 In her letter of appeal, Ms. Peak also challenged the City's response to a separate request made to the City Clerk/Treasurer. However, counsel for the City advised this office that Ms. Peak had been provided with copies of records she had requested from the City Clerk/Treasurer. Thus, under 40 KAR 1:030, Section 6, the appeal as to that request is moot and no decision will be rendered.
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