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 Metropolitan Sewer District violated the Open Records Act in the disposition of Glenn Bone's December 27, 2002, request for records. For the reasons that follow, we find that the District's disposition of Mr. Bone's request constituted a violation of the requirements of the Act.
On December 27, Mr. Bone requested copies of:
1. [A]ny rule, policy, procedure or memorandum promulgated and maintained by MSD that dictates the manner that employees of MSD are to perform their duties in the posting of signs for the purpose of giving notification to the public that work is to be performed on public streets by MSD.
2. [A]ny document that contains the names of MSD employees pertinent to work performed in the area of 1032-1035 S. 6th Street on October 7, 2002.
This request echoed, but was not identical to, a request Mr. Bone submitted to MSD on November 5, 2002, for, inter alia:
1. [A]ny rule, procedure or ordinance pertinent to the posting signs [sic] for the purpose of giving notification that work is to be performed on public streets by MSD such as but not limited to "NO STOPPING BY ORDER OF MSD" signs.
2. [A]ny document that contains the names of MSD employees pertinent to work that they performed in the area of 1032-1033 South 6th Street on October 7, 2002. 1
MSD responded to his November 5 request, following the initiation of an appeal to the Attorney General, by providing Mr. Bone with "all records from [MSD's] customer service database concerning [his] request of November 5, 2002." These records consisted of a two-page "Service Request Summary" containing ten entries, two of which appear to be pertinent to Mr. Bone, and a two-page "Service Request Detail," the first page documenting Mr. Bone's complaint of "property damage due to construction repair activity," and the second page documenting a complaint filed by a separate, and apparently unrelated individual, of "sewer backup." Mr. Bone's first open records appeal was mooted on the basis of MSD's statement that all records relating to his November 5 request had been released to him. 40 KAR 1:030 Section 6. 2
Having received no response to his December 27 open records request, Mr. Bone initiated this appeal to the Attorney General on January 21, 2003. 3 By letter dated January 29, 2003, MSD advised this office as follows:
In response to Statement #1 in Mr. Bone's letter dated December 27, 2002, please see copy of letter dated December 18, 2002 to Mr. Glenn Bone from our Legal Counsel, Carolyn Shain explaining that we do not have custody of the requested records.
In response to Statement #2 in Mr. Bone's letter dated December 27, 2002, please find attached documentation that was sent to Mr. Bone when he made his original open records request. This documentation is from our customer service database and does contain the name of MSD Crew Supervisor who responded to Mr. Bone's initial complaint.
I have also included copies of our letter responses to each of Mr. Bone's requests. As we have told Mr. Bone, this is all the material we have to satisfy his requests.
MSD mailed a copy of this letter to Mr. Bone.
The referenced December 18 letter from Ms. Shain to Mr. Bone notified him:
[T]he information provided to you is all of the information in our possession concerning work performed in the area of 1032-1033 [sic] South Sixth Street on October 7, 2002.
The customer service requests list the names of employees who responded to customer complaints and/or who were working in the area in question on the above-referenced date.
Ordinances and Laws pertaining to the posting of signs for work to be done on public streets are available to you or your attorney, just as they are available to MSD. The Open Records statute, KRS 61.870 et seq., does not require a public agency to conduct legal research on behalf of a requester. MSD is not the "official custodian" of such statutes and they are not "public records" within our possession.
It is the opinion of this office that these responses were deficient.
To begin, MSD violated KRS 61.880 in failing to respond to Mr. Bone's December 17 request in writing and within three business days. That statute sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of the statute requires a public agency to respond to the requester within three working days of receipt of the request, notifying the requester in writing of its decision relative to disclosure, and if that decision is to honor the request, providing the requester with the records identified in his or her request on or before the three day period of limitation has expired. These requirements, the Attorney General has often noted, "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. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public. MSD did not respond to Mr. Bone's December 27 request in writing and within three business days. Although MSD mailed Mr. Bone a copy of the January 29, 2003, letter directed to this office in response to his open records appeal, this did not satisfy its obligation under KRS 61.880(1). We urge MSD to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
MSD's belated response to this office was also deficient insofar as it failed to address Mr. Bone's request for rules, policies, procedures, or memoranda "promulgated and maintained by MSD that dictate the manner that employees of MSD are to perform their duties in the posting of signs for the purpose of giving notification to the public that work is to be performed on public streets by MSD." This request was, as noted, different from his November 5 request, and MSD's citation to its December 18 response to his November 5 request was not sufficient to discharge its statutory duty relative to his December 27 request. In its December 18, response, MSD notified Mr. Bone that "Ordinances and laws pertaining to the posting of signs" were not public records of which MSD was official custodian, and that MSD was not obligated to conduct legal research in order to locate them. While MSD's earlier response was consistent with prior decisions of this office, 4 to the extent that he had previously requested ordinances, and MSD has not already compiled any existing ordinances that are applicable to that agency, Mr. Bone's November 5 request, as well as his December 27 request, extended to rules, policies, and procedures. By this, we believe it is clear he sought access to internal MSD policies and procedures such as those that might be maintained in a training manual or employee handbook. While it is possible that MSD does not maintain a training manual or employee handbook with rules, policies, or procedures "dictat[ing] the manner that employees of MSD are to perform their duties in the posting of signs . . . ." MSD was obligated to conduct a search for such a record or records and if that search proved unproductive, to so notify Mr. Bone. As this office recently observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. [Citations omitted.]
02-ORD-144, p. 3. MSD's failure to adequately respond to this portion of Mr. Bone's request constituted a violation of the Open Records Act.
It is also by no means clear that MSD conducted an adequate search for records responsive to Mr. Bone's request for documents containing the names of MSD employees who performed work in the area of 1032-1035 South Sixth Street on October 7, 2002. The records released to Mr. Bone in response to his November 5 request, and characterized as dispositive of his December 27 request, relate exclusively to his complaint to MSD concerning property damage. They do not contain the names of the MSD employees described in his request. The "Service Request Detail" does, however, indicate that the work was performed by the "Beargrass Creek Area Team, MSD West Operations Maintenance Team," and that "[p]er T. Graves crew states they did not place or throw any cone on top of caller's car." From this, we can deduce that the Beargrass Creek Area Team, West Operations Maintenance Team was dispatched to the location on October 7 and that some or all of the members of the team were questioned by T. Graves and stated that they "did not place or throw any cone on top of caller's car." If a work order for this service call exists, or if a record documenting which employees comprise the Beargrass Creek Area Team, West Operations Maintenance Team exists, or if T. Graves took written notes of his or her interview of the crew members and those notes still exist, these records should be produced for Mr. Bone's inspection. If no such records exist, and no other record, such as time cards, can be produced in response to his request, MSD is again obliged to affirmatively so state. Its failure to do so, to date, constitutes a violation of the Open Records Act.
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.
Distributed to:
Glenn Bone1032 South 6th Street Louisville, KY 40203
Bud Schardein, Acting Exec. DirectorMetropolitan Sewer District700 West Liberty Street Louisville, KY 40203-1913
Glenna L. TodovichLegal DepartmentMetropolitan Sewer District700 West Liberty Street Louisville, KY 40203-1913
Carolyn Shain, General CounselLegal DepartmentMetropolitan Sewer District700 West Liberty Street Louisville, KY 40203-1913
Footnotes
Footnotes
1 Mr. Bone also requested a copy of his complaint to MSD about the work performed by MSD employees on October 7, 2002, and a copy of "any finding or investigation pertinent to the complaint."
2 40 KAR 1:030 Section 6 provides that "[I]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
3 Because of an unmanageable increase in the number of open records appeals filed with this office, Mr. Bone's appeal was placed on extension pursuant to KRS 61.880(2)(b)3.
4 See 94-ORD-121 (holding that although university was not required to conduct research in order to satisfy a request for policies governing records retention and management, university's own records retention and disposal schedule stated that those policies must be maintained in the vice-presidential area, the policies had therefore presumably been compiled, and the university improperly equated nonobligatory research with an obligatory search for existing records).