Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the responses of the City of Beaver Dam/Beaver Dam Volunteer Fire Department to the open records requests of Jeremy Nance violated the Open Records Act. We conclude that the responses did not violate the Act.
By letter dated March 31, 2004, Mr. Nance submitted a request to the City and Fire Department asking for:
Copy of Financial Statement for the Beaver Dam Fire Dept. of a money account commonly known as Don's Kiddy (Held by J. D. Chavis & Jerry Shepherd) for fiscal years 2000/2001 / 2001/2002 / 2002/2003.
Copy of the budget for this account / copy of the bonding company -- insurance company holding bond and that there may b a minimal charge for copies.
By letter dated March 19, 2004, Amy Pickett, City Treasurer, responded to Mr. Nance's request, advising him:
As per your request found in the City's night deposit box, the City of Beaver Dam does not have an account commonly known as Don's Kiddy. The City has no financial statements for this account and it is not included in the City's budget, so therefore, it is not bonded.
On March 24, 2004, Mr. Nance wrote a letter to Mary Pate, the Mayor of Beaver Dam, stating that he had addressed his open records request to the Fire Department, not the City of Beaver Dam. He renewed his request and asked that the request be handled with proper reply provided.
On March 29, 2004, Mayor Pate responded Mr. Nance's renewed request, stating:
Regarding your request for the financial statement account, commonly known as Don's Kiddy, for fiscal years 2000-2001, 2001-2002, and 2002-2003, a previously stated to you, the City of Beaver Dam has no records of this account. This petty cash account does not fall under the City of Beaver Dam for auditing purposes.
I have checked with our city auditor and she states, "The city has no financial responsibilities for this account".
On April 19, 2004, Mr. Nance wrote another letter to the Mayor, in which he stated:
It has been over 1 week and I haven't received a response to the open records request on the money account of the Beaver Dam Fire Department commonly known as Don's Kiddy. As you are aware a response to the request must [be] made within 3 working days.
If no records have been kept simply reply and let me know that there [aren't] any records from the fire department on this money account.
I expect a speedy reply.
On April 22, 2004, Mayor Pate responded to Mr. Nance's latest request, advising:
Let me begin by saying that I apologize for not responding to your earlier request, in writing, regarding the Beaver Dam Fire Department money, Don's Kiddy. The day you were in and brought your written request, I telephoned the City auditor while you were here and again discussed this issue with her. As she has stated previously, and I passed on to you that day, the City has no fiscal responsibility regarding a petty cash fund within the volunteer fire department. I did not realize you needed me to put the information in written form also.
I put your original request in acting fire chief, Jimmy Dukes' mailbox. In discussing this issue with him, he stated for me to inform you that he would be glad to schedule a meeting with you to discuss this concern. Please give him a call if you wish to schedule a meeting.
As a result of the City's action and responses, Mike Nance, on behalf of his son, submitted an appeal to this office.
After receipt of notification of the appeal and a copy of the letter of appeal, Mayor Pate provided this office with a response to the issues raised in the appeal. In her response, Ms. Pate stated in pertinent part:
The City of Beaver Dam, to my knowledge and confirmed by the City Clerk, has always complied with all open records request. Copies of letters, from the City, verify we have informed Mr. Nance that after discussing this petty cash fund with our City Auditor, the City has no records, is not responsible for auditing purposes and is not fiscally responsible for the petty cash fund referred to as Don's Kiddy. This response has been submitted to Mr. Nance in writing.
The City Auditor stated she has never informed the current Mayor that this account must have a financial statement. She has always maintained that, a petty cash fund held by the volunteer fire department does not fall under the City of Beaver Dam for auditing purposes. The City has no control of funds, which the volunteer firemen contribute to. However, the City is fully aware that all monies received from grants, federal, state and city funds must come through the City budget and are accounted for. All such funds have always been deposited in a city account.
In addition, this office also received a response from A. V. Conway, the City Attorney, who further explained in part:
Following the open records request, the City Commission conducted an inquiry to determine the source of the monies maintained in the fund. It appears to be limited contributions which are held exclusively for Volunteer Fire Department activities. The Mayor conferred with the City Auditor who indicated that the City is not responsible for auditing this fund, or maintaining any control over its contents.
We have insufficient information before us to determine whether the Fire Department is an agency of the City or whether it does or does not qualify as a "public agency" under KRS 61.870(1)(h). 1 Nevertheless, the City responded to Mr. Nance's open records requests on behalf of the Fire Department.
In its responses, the City indicated that the account was not an account of the City over which it had fiscal responsibility and, therefore, it had no records of the account. Under these circumstances, we conclude that the responses of the City advising as to the nature of the account and why it did not have any records pertaining to the account were proper and did not constitute a violation of the Act.
Moreover, the City's responses indicate that Don's Kiddy is an account of the Fire Department members held exclusively for volunteer fire department activities and its source of funding comes from contributions from the members. Although this office has long recognized that "[a]s far as open records are concerned, it is . . . the policy of the Legislature that wherever public funds go, public interest follows," no public funds are involved here. OAG 76-648, p. 2. Accordingly, we find no violation of the Open Records Act as to this issue.
Nevertheless, as noted in Mayor Pate's April 22, 2004 response to Mr. Nance, she had discussed his records request and concerns about the Don's Kiddy account with acting fire chief, Jimmy Dukes and he had indicated that he would be glad to schedule a meeting with Mr. Nance to discuss his concerns about the account.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 In 96-ORD-120, we described various types offire departments. Addressing volunteer fire departments, we stated:
A fourth type of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16.