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 City of Berea violated the Open Records Act in the disposition of several open records requests concerning properties owned by Phillip Harrison that were submitted by Janet L. Martin over a period of time extending from October 2002 to November 2002. For the reasons that follow, we find that although the City did not violate the Act in affording Ms. Martin access to only those records that currently exist and are in its custody, the City's apparent failure to maintain a complete record of complaints regarding inspections of, and proceedings against, the subject properties raises records management and retention issues that may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
By letter dated October 28, 2002, Ms. Martin submitted a broadly worded request for copies of "all files and pertinent information concerning Mr. and Ms. Harrison." 1 Having reviewed the records produced by the City in response to this request, Ms. Martin subsequently submitted a series of more narrowly worded requests. On November 6, 2002, James T. Gilbert, City of Berea Corporation Counsel, responded to Ms. Martin's request as follows:
[A]ll records of the City of Berea that you have requested regarding these individuals have been provided, other than minutes and other records of the Board of Adjustment, and these are now available for your review at the Code Administrator's Office at City Hall. Copies of all of the other records previously provided to you have been placed in a folder at the Code Administrator's Office, and are available for your re-review.
You requested records back to 1957; the City does not have records concerning Mr. Harrison back that far and has given you everything that it has.
You have further requested records concerning certain state agency reports. The City does not have these records nor are they City records under the Open Records Act. You are certainly invited to contact the state agencies involved and make an Open Records Request to the specified agency. If you need the name and address of the agencies involved, you may get that at the Code Administrator's Office at City Hall.
Undeterred, Ms. Martin continued to submit records requests to the City of Berea, its Fire Department, and its Code Administrator through the month of November. On November 25, 2002, Dale VanWinkle, Code Administrator for the City of Berea's Department of Codes and Planning, again notified Ms. Martin, in writing, that the City had "provided copies . . . of all of the records pertinent to your request that [the City had] been able to find" and that if Ms. Martin disagreed with the City's position she could initiate an appeal to the Attorney General or the Madison Circuit Court. Mr. VanWinkle indicated that "[f]urther correspondence relating to these records [would] not be acknowledged." Shortly thereafter, Ms. Martin commenced this appeal asserting that the City's position that it has disclosed all responsive documents could not be reconciled with statements made by various state agencies, including the Division of Building Code Enforcement, the Division of Fire Prevention, the Division of Air Quality, and the Division of Waste Management, "that it is the City of Berea's jurisdiction."
In supplemental correspondence directed to this office following commencement of Ms. Martin's appeal, Mr. Gilbert elaborated on the City's position. Reaffirming the City's statement that Ms. Martin had "been provided copies of all requested records which the City possesses," and acknowledging the City's duty to permit her to "inspect such records as she desires upon proper request," Mr. Gilbert maintained that "[t]he problem is that she believes the City has records which it does not have." Continuing, he observed:
Ms. Martin has provided you with copies of her numerous communications to the City as well as copies of the City's enforcement procedures against Ms. Martin's neighbor, Mr. Harrison. As can be ascertained from such documents, Ms. Martin has a continuing problem with her perception of Mr. Harrison's compliance with City codes, and the City's enforcement of same. While this is undoubtedly the basis for her complaint to your office, the fact remains that she has been afforded complete and total access to public records in the possession of the City of Berea. Her complaints about her neighbor's code compliance and the City's enforcement procedures regarding such code compliance are not appropriately addressed in this forum. Ms. Martin has specified rights and responsibilities under existing code provisions to appeal any actions of the code enforcement office, and of course she has the ultimate political remedy with the elected officials of the City of Berea.
Pursuant to its statutorily assigned duties, this office reviewed the voluminous materials accompanying Ms. Martin's letter of appeal, but was unable to determine what records remain in dispute. Accordingly, on January 3, 2003, we requested that Ms. Martin "identify what existing records [she] believe[s] the City possesses that are responsive to [her] request but which [she] believe[s] the City is improperly withholding. " In addition, we asked that she provide us with copies of the legal authorities which she referenced in her November 5, 2002, letter to the City.
By letter dated January 8, 2003, Ms. Martin "compiled a detailed listing of records that [she] believe[s] the City is withholding. " Noting that the problems associated with the subject properties date back to 1957, she expressed the view that the City "[sh]ould have more records in its archives" than those already produced. Specifically, she identified eighteen separate categories of records which she believed the City should possess. The eleventh category of records contained seven subparts. In addition, Ms. Martin identified three categories of records which she believed the Berea Fire Department should possess. These records can generally be described as:
- Records of code violations from 1957 to 1989;
- Letters and documents referenced in correspondence exchanged in 1996;
- Complete record from civil action number 96-CI-583;
- Records relating to hazardous material removal and disposal from 1997;
- Records, including inspection reports generated by state agencies, regarding the Harrison property and a cease to occupy order;
- Complete record concerning complaint number 499 filed in 1997 including hazardous materials lists, inspection reports, and photographs;
- Complete record concerning complaint number 57 filed in 2000;
- Business license and occupancy certificate for Teresa's Antiques;
- Division of Waste Management inspection report arising from March 2002 complaint;
- Records relating to 2002 sewer and garbage problems for rental property located at Big Hill Road;
- 2002 Codes Enforcement Order imposing fine on Harrison for failing to complete previous order to paint;
- Burn permits obtained, and inspections and reports on properties from 1957 to November 2002.
Per our request, Ms. Martin provided this office with the referenced legal authorities.
Our review of Ms. Martin's response to our letter, coupled with an examination of the nuisance ordinance which she furnished and the applicable records retention requirements for local governments, indicates that the City has made a concerted effort to honor in full her open records request. However, the nonexistence of some records identified in that request raises records retention and management questions that may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes. In making this determination, we emphasize that nothing in the record on appeal suggests a lack of good faith on the part of the city or an intent to conceal public records.
We begin by noting that the City's failure to respond to each of Ms. Martin's requests in writing, and in a timely fashion, was inconsistent with the requirements of KRS 61.880(1). That provision, containing procedural guidelines for public agency response to an open records request, requires the agency to "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 . . . notify in writing the person making the request, within the three (3) day period, of its decision." The fact that Ms. Martin submitted multiple requests in a brief period of time did not relieve the City of its statutory duty. To the extent that the City failed to respond to each of her requests in a manner consistent with KRS 61.880(1), its inaction violated the Open Records Act.
As noted above, the record on appeal demonstrates that the City of Berea has produced numerous documents in response to Ms. Martin's requests. The City asserts that no additional responsive records exist. When an agency's denial of an open records request is postulated on the nonexistence of the records requested, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120. Moreover, where some, but not all, of the records requested are disclosed, this office has generally declined to attempt to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. Nevertheless, we proceed with analysis in the appeal before us based on Chapter 50 of the City of Berea's Code of Ordinances, relating to public nuisances, and the Records Retention Schedule for Local Governments.
In 1994, the intent of the Open Records Act was statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Section 50.003(A) and (B) of the City of Berea Code of Ordinances requires the filing of complaints alleging the existence of a public nuisance with the code enforcement officer and imposes on that officer the duty to inspect the premises that prompted the complaint and to "make a written report of the findings of the inspection, " including photographs, "wherever practicable." The Records Retention Schedule for Local Governments, developed by the State Archives and Records Commission and the Public Records Division of the Department for Libraries and Archives, contains a number of ostensibly applicable records retention requirements for these and other records to which Ms. Martin requested access. These consist of:
Series No. L4822 (relating to Fire Departments/Districts) Inspections of Property Files (including the basic inspection form, copies of violation notice, and fire marshall inspection forms) which must be retained at the agency for five years;
Series No. L4823 (relating to Fire Departments/Districts) Notification of Violation (used to notify those who are in violation of any law or ordinance relating to fire prevention and protection or where conditions are found that are likely to cause fire loss) which must be retained at the agency for seven years;
Series No. L4979 (relating to Planning and Zoning). Condemnation Files (documenting the record of proceedings, events, and conditions of a property slated for condemnation for reasons such as collapse of property, unsanitary conditions, health of public in jeopardy, or a lack of public utilities) which is a vital record that must be permanently retained at the agency;
Series No. L4965 (relating to common administrative records). Citizen Complaint/Petitions (documenting complaints filed by citizens that are passed to appropriate agencies or referred to local governing body for action and consisting of correspondence between the complainant and the local government and copies of petitions) which must be retained at the agency for two years;
Series No. L4749 (relating to licensing). Application for Business/Occupational License File (documenting the application for a license to conduct a business or occupation in a city, including inter alia, the application and a copy of the license or permit) which must be retained at the agency for three years.
These provisions of the Berea Code of Ordinances, operating in tandem with the referenced records series, appear to require the creation and retention of certain records to which the City was unable to afford Ms. Martin access. For this reason, we are referring this matter to the Public Records Division of the Department for Libraries and Archives for any additional inquiry the Department deems appropriate.
Ultimately, of course, we cannot afford Ms. Martin the relief she seeks, namely access to the records identified in her request which the City was unable to produce. Nor can we declare the City's failure to produce nonexistent records a violation of the Open Records Act or, as a corollary, compel the City to disclose records that were never created or that were not retained. Having determined that the City did not violate the Act in failing to disclose nonexistent records, and having referred this matter to the Department for Libraries and Archives for any additional action that agency deems warranted, this office has fully discharged its duties under KRS 61.880(2) and KRS 61.8715.
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.
Distribution to:
Janet L. Martin615 Big Hill RoadBerea, KY 40403
Dr. Clifford Kerby, Mayor (former) Steven Connelly, Mayor (current)City of Berea212 Chestnut StreetBerea, KY 40403
James T. GilbertAttorney for City of BereaP.O. Box 1178Richmond, KY 40476-1178
Randy StoneAdministrator for City of Berea212 Chestnut StreetBerea, KY 40403
Dale VanWinklePlanning & ZoningCity of Berea212 Chestnut StreetBerea, KY 40403
Bob Davis, ChiefBerea Fire Department212 Chestnut StreetBerea, KY 40403
Footnotes
Footnotes
1 Ms. Martin identified the Harrisons by name and home address. We omit the latter item of information in deference to their privacy interests. Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994).