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 actions of the City of Windy Hills in response to the open records requests of Lynn S. Renau violated the Open Records Act. Because the City has agreed to provide Ms. Renau with access to the records she requested, we conclude that the substantive issue in the appeal is moot and no decision will be rendered in this regard. 40 KAR 1:030, Section 6. However, because the appeal raises possible records management issues, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
After initiation of her appeal to this office, Foster L. Haunz, Attorney for the City of Windy Hills, by letter dated March 17, 2003, advised this office that the records Ms. Renau requested would be made available for her inspection "at the offices of Thomas R. Clark, CPA, 1827 Brownsboro Road, Louisville, Ky. on Monday, March 24, 2003, between the hours of 9:00 am and 4:00 pm."
40 KAR 1:030, Section 6, provides: "If 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." Accordingly, since Ms. Renau will be or has been provided access to the records she requested, the records access issue that she raises in her appeal is moot and no decision will be rendered on this issue.
Nevertheless, we believe that this appeal raises records management issues, and we have referred these issues to the Department for Libraries and Archives for additional inquiry as that agency deems appropriate. In its response to this office addressing the issues raised in the appeal, the City explained that Ms. Renau's requests asked for access to all the public records generated by the City since its incorporation in 1952. The City further explained, in part:
City records are currently being kept at the personal residence of the City Clerk/Treasurer. Older records were boxed by the former City Clerk(s)/Treasurer(s), and likely never looked at in decades. With great difficulty, the City is making these boxes available to Ms. Renau.
In a response to Ms. Renau's February 27, 2003, request, Louis A. Phillips, Mayor, by letter dated, March 1, 2003, advised her that the City was assembling the records of the City to make them available for her review and acknowledged that she had advised the City that some of the historic minutes appeared to be missing. Mayor Phillips further advised her that a "search for the missing records is underway and we will work as quickly as possible to locate them." The City's description of its designated records storage practices and its admitted difficulties in accessing and retrieving its records raises significant records management issues.
It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the City in determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
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.
Lynn S. Renau726 Waterford RoadLouisville, KY 40207
Louis A. Phillips. MayorCity of Windy Hills703 Merrifield RoadWindy Hills, KY 40207
Foster L. HaunzCity Attorney1 Riverfront Plaza, Ste. 2016Louisville, KY 40202
Richard BeldingPublic Records Division DirectorDepartment for Libraries and ArchivesP.O. Box 537Frankfort, KY 40601