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 McLean County Sheriff's Department violated the Open Records Act in the disposition of Billy R. Davis' July 23, 2002, request for a copy of "the cell phone call listings for . . . [Deputy] Wetzel and [Deputy] Horton for the evening of 9 Jan. 02 (6:00 PM to 12:00 P.M. [sic])." For the reasons that follow, we affirm the Department's denial of Mr. Davis' request.
In a response dated July 25, 2002, McLean County Attorney W. E. Quisenberry, Jr. advised Mr. Davis that cell phone bills "do not contain 'phone call listings' and . . . merely contain the total minutes of usage." Shortly thereafter, Mr. Davis initiated this appeal acknowledging that the Sheriff's Department "might not have detailed phone billing, " but asserting that the Department "could request the detailed billing from their cell phone service and obtain the records [he] requested." It was Mr. Davis' position that because these officers testified "they used their cell phones in lieu of radio to prevent monitoring on the scanner . . . [,] their cell phone records are no less public records than the central dispatch records of radio calls . . . [he] was given for the period concerned." He indicated that he was not interested in obtaining "personal cell phone records which are billed directly to both Wetzel and Horton," but was instead only interested in "the cell phone records on the phones they use in the conduct of their business as deputy sheriffs for the county." In closing, Mr. Davis asserted that the Sheriff's Department should have, at a minimum, "provided the specific exception authorizing the withholding of this record."
In supplemental correspondence directed to this office following commencement of Mr. Davis' appeal, Mr. Quisenberry elaborated on the Department's position. He advised:
While the letter of appeal sometimes uses a reference to "the cell phone records" the specific request made by the requestor was for a "copy of the cell phone call listings for both Wetzel and Horton for the evening of 9 Jan. 02". Mr. Davis' daughter has approached the McLean County Sheriff's Office seeking these records and, as was also done by my response dated July 25, 2002, a copy of which is attached, both Mr. Davis and his daughter were made aware that the only "cell phone records" maintained by the Sheriff's Office were the actual bills that did not break down "cell phone call listings" . These bills are in fact public record and are readily available and have always have [sic] been available to both Mr. Davis and his daughter. The records that Mr. Davis is actually requesting however, are a listing of individual calls. These records are not in the possession of the McLean County Sheriff's Office, although they may be maintained by the private cell phone service.
Under the above facts it is my belief that the McLean County Sheriff's Office is under no obligation to seek and create records not specifically maintained or possessed by them.
In support, Mr. Quisenberry cited OAG 89-4 for the proposition that records "not in the possession, or retained by, a public agency . . . are private records beyond the reach of the Kentucky Open Records Statutes." Mr. Quisenberry subsequently furnished this office with the Cingular billing records for all cell phones used by the McLean County Sheriff's office during the relevant time frame and a copy of the Cingular contract that was in effect during that time. Based on our review of these records, we affirm the Sheriff's position.
In OO-ORD-198, this office concluded that cellular telephone billing records are, in general, subject to public inspection. There, we held that the Lawrence County Sheriff's Department erred in issuing a blanket denial of an open records request for the records on the basis of KRS 61.878(1)(h). We reasoned:
If, in fact, the billing records contain the phone numbers of informants, victims of crime, and alleged criminal defendants, these entries may be redacted on this basis [footnote omitted]. "The fact that individual entries on telephone records enjoy protection under the Open Records Act does not mean that the entire category of records may escape scrutiny for purposes of determining if public funds, time and personnel are being properly used." 98-ORD-92, p. 13. Simply stated, a generic determination that all telephone records of employees of the Lawrence County Sheriff's Department are excluded from the Open Records Act does not satisfy the requirements of the Act. These employees must be held to the same standard of public accountability in the use of publicly funded cellular telephones as . . . public employees as a whole.
00-ORD-198, p. 4. A copy of that decision is attached hereto and incorporated by reference.
The McLean County Sheriff's Department acknowledges that its cellular telephone billing records are generally subject to public inspection, and has agreed to provide Mr. Davis with copies of those records for the relevant time frame. The only remaining question is whether the Department is statutorily obligated to obtain itemized billing records from its cell phone provider. We do not believe that the Open Records Act requires the Department to do so.
In a series of decisions the Attorney General has recognized that the Open Records Act applies to records that have in fact been prepared, owned, used, in the possession of or retained by a public agency and not those which could have been prepared, owned, used, in the possession of or retained by a public agency. See, e.g., 95-ORD-125 (Louisville Firefighters Pension Fund properly denied request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets); 97-ORD-15 (University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the agreement resided); 98-ORD-90 (correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request). These decisions were premised on the definition of a public record codified at KRS 61.870(2). 1
In an unpublished decision issued in 1999, the Kentucky Court of Appeals went one step further and held that documentation of legal expenses billed to the City of Louisville by its private contract attorneys were public records for open records purposes, notwithstanding the fact that the documentation was not in the city's possession. City of Louisville v. Brian L. Cullinan, Ky. App., No. 1998-CA--001237 MR (8/13/99). Referencing KRS 61.870(2), the court observed:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents supporting fees to be billed and paid by the City for legal services rendered. Certainly, the City would not have been authorized to pay money to the contract law firm without the benefit of such records.
We are of the opinion that the question as to custody and possession of these records was answered by the contract law firm when it stated, "[w]e have not been granted permission by our clients to disclose to you the records in question." It is clear from this response that the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6). In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. 66 Am. Jur. 2d Records and Recording Laws, (3 (1973).
City of Louisville at 4. 2
The McLean County Sheriff's Department has acknowledged its duty to disclose routine billing documents supporting fees to be paid by the Department for cellular telephone use. In so doing, the Department disclosed the existing public records documenting public funds expended for public use of cellular telephones under its contract with a private provider, and satisfied the requirement of public accountability recognized in City of Louisville v. Cullinan, above. The Department is not obligated to obtain itemized billing records from its provider in order to satisfy Mr. Davis' request, notwithstanding his concern that those records do not contain the specific information he seeks. We therefore affirm the Department's disposition of Mr. Davis' request.
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.
Billy R. Davis320 South First StreetP.O. Box 128Island, KY 42350
Judy StrattonMcLean County SheriffP.O. Box 331Calhoun, KY 42327
William E. Quisenberry, Jr.McLean County AttorneyP.O. Box 262Calhoun, KY 42327
Footnotes
Footnotes
1 KRS 61.870(2) defines the term public record as:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
2 Although City of Louisville v. Brian L. Cullinan is an unpublished decision that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies to produce records that are maintained off public premises.