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 Elkhorn City relative to the October 17, 2003 open records request of Billy R. Powell for "the last three audits done for the Elkhorn City Government, that is Mandated by the state," violated the Open Records Act. For the reasons that follow, we find the City's actions, with the exception of a possible procedural deficiency, were substantively proper and did not violate the Act. However, the failure of the City to maintain copies of annual audit reports as required by KRS 91A.040(1) and the Records Retention Schedule Local Government General Records Schedule Accounting Annual Audit -- L4998, raises possible records management issues and may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes.
In his letter of appeal to this office, Mr. Powell indicated that he gave the City Clerk a copy of his open records request on October 17, 2003 and when he went back to the clerk's office on October 22, 2003, he was "refused."
After receipt of notification of the appeal and a copy of the letter of appeal, Hope Ramey, City Clerk, provided this office with a response to the issues raised in the appeal. In her response, Ms. Ramey explained:
I received a request from Councilman Billy R. Powell for the last three years audits on October 17, 2003. Mr. Powell stopped by my office on October 22, 2003 and asked me if I had gathered the information he requested. I informed Mr. Powell the information he requested was at the auditors, Linton & Company. I do not have the audits in my office at this time. I followed up the request by letter in which I informed Mr. Powell that the auditors informed me that everything would be completed by November 30, 2003. I also enclosed a copy of the letter to you. If you have any questions, please contact me at 606-754-5080. You can also contact Linton & Company at 606-432-4422.
In her letter to Mr. Powell, dated October 27, 2003, responding to his request, Ms. Ramey advised:
Per your request for a copy of the audits for the City of Elkhorn City, these audits are currently at the CPA's Linton and Company, located in Pikeville. The CPA's are finishing up and have informed me that they will have everything completed by November 30, 2003. If you have questions pertaining [to] the audits, please contact Linton and Company.
We are asked to determine whether the City's actions in response to Mr. Powell's request for copies of the City's last three audits violated the Open Records Act. For the reasons that follow, we find that the City's response advising Mr. Powell that it did not have the requested audits as they were at the City's auditor's office and that the documents would be completed and available for inspection on November 30, 2003, was substantively correct and did not constitute a violation of the Act.
We begin by noting that the City's failure to respond to Mr. Powell's request 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." Mr. Powell indicated that he tendered his request in writing to the City on October 17, 2003. The City's written response indicates it was dated October 27, 2003. To the extent the response was issued outside the three business day time requirement of KRS 61.880(1), it would constitute a procedural violation of the Act.
Next, we address the substantive issue. While the Attorney General has consistently held that final audit reports are public documents and are therefore subject to public inspection (see, for example, OAG 76-633, OAG 82-340, OAG 84-225, OAG 91-72, 93-ORD-125), this office has just as consistently held that "a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody. " 93-ORD-51, p. 4. The City in its response advised Mr. Powell that it did not have the requested audits as they were currently at its auditor's office, Linton and Company, located in Pikeville, and that the documents would be completed and available for inspection on November 30, 2003. The City's response to Mr. Powell's request was consistent with the provisions of the Act insofar as it cannot make available for inspection documents which it does not have in its possession. Moreover, the City's response was also consistent with KRS 61.872(4) and (5), which provide:
(4) If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
(5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The City complied with these sections by advising Mr. Powell that it did not have custody of the requested audits and by giving him the name and location of its auditors that had custody of them (KRS 61.872(4) and further advising him that the audits would be completed by November 30, 2003 and for Mr. Powell to contact the auditors if he had any questions pertaining to the auditors. (KRS 61.872(5).
It is unclear whether Mr. Powell requested the City's last three completed audits or requested the City's audits for the last three fiscal years. Obviously, the audit for the current fiscal year that has not yet been completed would not have been available. However, the City does not explain whether or not the audits for the past three fiscal years had been completed or, if they had been completed, why they were not maintained in the City's possession available for inspection by the public. This raises possible non-open records questions relative to compliance with KRS 91A.040(1). This statute mandates that each city of the first through fifth class must conduct an audit after the close of each fiscal year, and that the audit "shall be completed by February 1 immediately following the fiscal year being audited." Elkhorn City is a fourth class city (KRS 81.010(4)), and therefore subject to the requirements of KRS 91A.040(1).
Furthermore, whether the requested audits are completed, but not in the possession of the City or whether they were not completed as required by KRS 91A.040(1), raises records retention and management questions. If the audits were completed and the City failed to maintain a copy of the annual audit reports, as required by the Records Retention Schedule Local Government General Records Schedule Accounting Annual Audit -- L4998, or whether the City failed to compete the audits as required by KRS 91A.040(1), may warrant review by the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes. Accordingly, we are referring this matter to the Public Records Division of the Department for Libraries for any additional inquiry the Department may deem appropriate.
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.