Request By:
Brenda Kersey
353 Fox Harbour Drive
Lexington, KY 40517Shirley Brown, Clerk
City of Frankfort
315 West Second Street
P.O. Box 697
Frankfort, KY 40602A. J. Higgs, Attorney
City of Frankfort
213 St. Clair Street, Suite 204
Frankfort, KY 40601Richard Belding
Public Records Division Director
Department for Libraries and Archives
P.O. Box 537
Frankfort, KY 40601Jerry Carlton
Local Records Division Director
Department for Libraries and Archives
P.O. Box 537
Frankfort, KY 40601
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 Frankfort, relative to the April 9, 2003 request of Brenda Kersey for a copy of audio tapes of a May 30, 2002 city commission meeting and a subsequent April 18, 2003 telephone request for a copy of the original open records request form she had submitted in June 2002 to obtain the tapes, violated the Open Records Act. For the reasons that follow, we find no violation of the Act. The City's apparent failure to maintain a copy of Ms. Kersey's open records request form raises a records management and retention issue that may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
In a response, dated April 11, 2003, Shirley Brown, City Clerk, advised Ms. Kersey that the audio records would be available for review in her office on Wednesday, April 16, 2003, at 10:00 a.m.
In a letter dated April 23, 2003, Ms. Brown informed Ms. Kersey that she had been unable to locate the open records request form Ms. Kersey had submitted to the City in June 2002, but would continue to search for the form in the event it had been misfiled.
In her letter of appeal, dated April 23, 2003, Ms. Kersey indicated that she had originally requested the tapes shortly after the May 2002 meeting and had been told that the tape recorder had been turned off for part of the meeting and there was nothing on the second tape other than a motion to adjourn. She stated that, in response to her recent request, the City had provided her with two full tapes of the May 30, 2002 city commission meeting. She indicated that the first tape was clear and audible, but the second tape was inaudible. She claimed that the second tape would provide evidence needed to prove she was harassed and discriminated against.
After receipt of notification of the appeal and a copy Ms. Kersey's letter of appeal, Ms. Brown submitted a response to this office on behalf of the City addressing the issues raised in the appeal. In her response, Ms. Brown advised:
Regarding the inaudible or incomplete tape, the City Commission meeting taking place on May 30, 2002 was an open work session to discuss the following year's budget. Enclosed please find a copy of the "Call of Special Meeting" signed by the Mayor and sent to media. By practice, this Commission does not take any action at work sessions; therefore, minutes are not kept. OAG 81-387. The audio tape recorder was on during a part of the discussion, but was apparently turned off at some point in the meeting. Ms. Kersey was provided with copies of the only audio tapes made of this meeting. She has not made any complaint of inaudibility to the City. Presumably, the quality of the tapes given Ms. Kersey is the same as that of the original tapes in the City's possession; however, Ms. Kersey is certainly welcome to come to City Hall and listen to the tapes from which her copies were made.
Regarding Ms. Kersey's April 18, 2003 telephone request for a copy of a public records inspection request submitted by her in June, 2002, City files have been thoroughly searched by two City employees who were unable to find Ms. Kersey's June, 2002 request. There has been no effort to suppress anything, nor to retaliate against anyone; we merely have thus far been unable to locate the requested document. Our search continues.
Under the facts presented in this appeal, we find no violation of the Open Records Act. This office has, on more than one occasion, stated that "what the public gets is what [the agency has] and in the format in which [the agency] has it," OAG 91-12, p. 5, 99-ORD-190, p. 4. The City advised Ms. Kersey and this office that the tape recorder had apparently been turned off during the course of the May 30, 2002 meeting and, thus, not all of the meeting was recorded. As noted above, the City provided Ms. Kersey with a copy of its tapes of the portion of the meeting that was recorded. The City has also offered to let her come to City Hall and listen to the tapes from which her copies were made. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. We conclude that the City complied with the Open Records Act by providing Ms. Kersey with a copy of its tapes of the meeting.
We next address the City's inability to locate Ms. Kersey's open records request which was submitted in June 2002. Our review of the Records Retention Schedule -- Local Government -- Common Records - Administrative , the relevant portion of which is enclosed, indicates that the retention period for open records requests is one year. Such records fall within Series No. L4963, and are deemed "vital records" that must be retained by local agencies for one year. The record before us indicates Ms. Kersey's open records request was submitted in June 2002 and her request for a copy of that document was made on April 18, 2003. Thus, the City should have retained a copy of the requested document for one year after its receipt. The City has advised Ms. Kersey and this office that it has made a diligent search for the request form, but has been unable to locate a copy of the record. The City's inability to locate the record 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. Thus, we are obliged to refer this matter to the Department for Libraries and Archives for further inquiry as that agency deems warranted. 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.
Finally, Ms. Kersey, in her letter of appeal, raises an Open Meetings Act issue related to the City's failure to keep a record of the second half of the May 30, 2002 meeting. We are precluded from rendering an Open Meetings Act decision on this issue, because it has not been properly presented to this office in compliance with the requirements of KRS 61.846 and 40 KAR 1:030, Section 1, which set forth the procedures that must be followed before this office can render an Open Meetings Act decision. 93-ORD-34.
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.