Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Garrard County Memorial Hospital, Inc. violated the Kentucky Open Records Act in its disposition of David Wilson's request for "copies of certain records: a listing of all outstanding debts accumulated by the Garrard County Memorial Hospital[,] Inc. since its inception in September of 2001, including the name and address of each creditor." For the following reasons, we conclude that GCMH, having conceded its status as a "public agency, " committed a procedural violation of the Open Records Act in failing to comply with the requirements of KRS 61.880(1) and decisions from this office interpreting that provision, as to any existing records in its custody that are responsive to Mr. Wilson's request. With respect to records that do not currently exist, however, GCMH has fulfilled its obligation under the Act by affirmatively indicating as much to Mr. Wilson, and exceeded its statutory duty in agreeing to compile information and generate documents to satisfy Mr. Wilson's request.
By letter dated April 18, 2004, Mr. Wilson directed his request to the GCMH "Custodian of Records" via certified mail. Gwinette Ray, apparently acting on behalf of GCMH, accepted delivery of the request on April 21, 2004. Having "received no reply," Mr. Wilson initiated this appeal from the "de[]facto refusal of the Garrard County Memorial Hospital to provide [him] with copies [of] or allow [him] to inspect records that are in the county's possession." According to Mr. Wilson:
The Garrard County Memorial Hospital is owned by Garrard County. A non-profit corporation was formed in September of 2001 to operate the hospital. The county is currently on the hook for more than $ 4.5 million dollars of hospital debt. This does not include debt accumulated since the incorporation. I'm trying to determine the full extent of the debt and what mismanagement or malfeasance has taken place.
Responding to Mr. Wilson's appeal on behalf of GCMH, attorney William A. Bausch explained:
Garrard County Memorial Hospital, Inc. is a non-profit corporation established in accordance with KRS 58.120. 1 Mr. Wilson states that [GMCH] is "owned by Garrard County." GCMH is an independent corporation and is not owned by Garrard County.
Second, attached hereto and incorporated by reference as Exhibit 1, is a copy of GCMH's response 2 to Mr. Wilson's initial open records request. As indicated in our response, there are no employees at GCMH and no one to receive mail. A volunteer has been obtaining the mail on an intermittent basis and Mr. Wilson's request was forwarded to our office. A response was drafted as quickly as possible, but of course, an inherent delay resulted from the fact that there are no employees or regular mail pickup.
GCMH closed the facility and ceased all operations on August 29, 2003. The reason for this closure was the lack of funds to continue operations or to pay employees. Of course, this led to the immediate termination of employment for all hospital employees. The computer equipment that ran the accounting software was leased equipment and the leaseholder has subsequently obtained the equipment in question. GCMH is involved in substantial litigation, including, but not limited to, a suit against the managing entity that was overseeing operations during a substantial period of time for which Mr. Wilson is seeking information. Every effort, given the constraints of lack of employees and computer records, to generate final accounting reports is being made. However, as stated in Exhibit 1, it is believed that this will be a prolonged effort and will require the generation and/or creation of reports that do not currently exist. Even though this is not required pursuant to an open[]records request, this information will be provided upon its creation.
Upon receiving GCMH's initial "tardy and unsatisfactory reply," Mr. Wilson sought to "amend [his] previous complaint" in supplemental correspondence 3 received by this office on May 10, 2004. In his view, "the threat of litigation is present in all matters that are the subject of open records requests." Mr. Wilson is "sure that the potential plaintiffs already know who they are and how much is owed to them[,]" and "as one of the ultimate debtors," he "would simply like to have this information as well." According to Mr. Wilson, the argument that "no hospital employees and no funds" are available to process his request is "ludicrous" and "it would have been easier and cheaper to copy and send the documents" that he requested or notify him of a location where he could view the documents. "It seems apparent" to him that Garrard County "never actually stopped behaving as the owner, controller, and ultimate holder of liability for the hospital." Mr. Wilson "has no doubt that the hospital creditors mail out statements monthly[,] and, [w]ith free access to those statements," he believes that he "can resolve this matter in a reasonable length of time."
In supplemental correspondence received by this office on May 17, 2004, Mr. Wilson again disputes the contention that GCMH does not have adequate funds or personnel to address his request and cannot utilize county employees for that purpose because "these are separate[,] unrelated entities since the incorporation of the hospital in 2001." Attached to his letter is a copy of a newspaper article regarding a lawsuit against Garrard County, the plaintiffs in which "apparently believe that [GCMH] and Garrard County itself are related" assuming the facts contained in the article are correct, in Mr. Wilson's estimation. 4
As evidenced by the foregoing, Mr. Wilson's appeal is premised on the assumption that GCMH is a "public agency" for purposes of the Open Records Act and, therefore, is subject to its provisions. Given the discrepancies surrounding this fundamental premise, the Attorney General requested, pursuant to KRS 61.880(2)(c), that Mr. Bausch provide this office with documentation to substantiate his claim that GCMH is an "independent corporation" as opposed to a "public agency" since its non-profit status alone is not determinative, in an attempt to conclusively resolve this threshold issue. More specifically, we asked Mr. Bausch to expand upon his statement that the corporation was created in accordance with KRS 58.120 since that provision applies to "Any governmental agency acquiring any public project[,] . . ." (Emphasis added). On May 17, 2004, Mr. Bausch attempted to clarify his earlier position, advising this office as follows:
I apologize if my prior correspondence indicated that GCMH (GCMH) is not subject to open records. My prior response was only intended to state that GCMH is not "owned" by Garrard County itself. This distinction is critical in that the Kentucky Revised Statutes allow for the creation of a quasi governmental entity that does not subject the County to liability for the actions of a properly established non-profit corporation. GCMH is such a quasi governmental, non-profit corporation, in that it is not owned by the County and therefore, does not subject the County to responsibility for obligations incurred in the operation of the facility.
I believe it inappropriate in an open records appeal to discuss any items concerning Mr. Wilson's ongoing lawsuits of any nature. The strict issue at question is whether or not GCMH is subject to an open records request. It is the position of GCMH that it should respond to all open[] records requests in the best manner possible.
My prior correspondence to Mr. Wilson indicated that there is serious threat of litigation that I am not at liberty to discuss more fully. At the current time, an action is pending in the United States [District] Court, Eastern District of Kentucky pursuant to the Federal Civil False Claims Act, 31 USC § 3729 et. seq. A portion of this complaint directly involves the exact materials that are being requested by Mr. Wilson and their possible inclusion or exclusion, on one or more cost reports filed with CMS (Medicare).
Our initial response to Mr. Wilson was to indicate that due to the lack of employees at the hospital that is now ongoing, the information he requested will take 60 or more days to prepare.
Under the Open Records Act, it is not necessary or required that an entity create information or documents to respond to a request. However, GCMH has agreed that it will, upon completion of the creation of these documents, present them to Mr. Wilson. In addition, there are exceptions to production of information related to ongoing litigation and as can be seen by the above-referenced action, the very questions to which Mr. Wilson is seeking an answer, are being prepared in response to that litigation.
It was also indicated in my prior response that due to a delay in receiving the open records request, we were unable to meet the three-day response time. However, within three days of the date counsel received a copy of the open records request, a response was sent to Mr. Wilson.
Unfortunately, Mr. Bausch's letter is not responsive to our request. Aside from reiterating that GCMH is not "owned" by Garrard County, Mr. Bausch provides no insight or guidance as to the proper characterization of this separate entity in the current context. In acknowledging that GCMH should respond to "all open[]records requests in the best manner possible," however, Mr. Bausch is presumably conceding that GCMH qualifies as a "public agency" under one or more of the definitions codified at KRS 61.870(1), 5 albeit implicitly, or waiving any challenge to that characterization at a minimum. 6 Absent evidence to the contrary, then, our analysis will proceed on that assumption.
Assuming that GCMH is a public agency, its failure to respond to Mr. Wilson's request in writing, within three business days of its receipt on April 21, 2004, constitutes a violation of KRS 61.880(1), despite the extreme circumstances complicating the process for GCMH. KRS 61.880(1) sets forth the procedural guidelines with which an agency must comply in responding to an open records request. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall 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 shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [GCMH's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, pp. 3, 4.
Here, someone acting on behalf of GCMH accepted delivery of Mr. Wilson's request on April 21, 2004, as indicated on the certified mail receipt attached to his letter of appeal. GCMH concedes as much, arguing that the "inherent delay" resulted from the closing of the hospital itself. Although the delay was minimal, GCMH did not respond until April 29, 2004, which was obviously beyond the designated time period of three business days. From a procedural standpoint, therefore, the response of GCMH was inconsistent with the provision of the Open Records Act.
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, as is the case here, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5) (Emphasis added); 02-ORD-165. In other words, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5. (Emphasis added).
Noticeably absent from GCMH's belated response are these mandatory elements. Whether the explanation offered by GCMH - a lack of hospital employees and funds - is sufficiently detailed to satisfy the former requirement is a closer question, but its response clearly fails to satisfy the latter requirement of specifying the place, time, and earliest date on which the records will be available for inspection. To this extent, the response of GCMH was procedurally deficient. As a public agency, GCMH is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted under the Open Records Act. While we appreciate the unique challenges impeding the ability of GCMH to comply with these requirements, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records."). See also 96-ORD-185. Neither the press of business nor the absence of the official custodian justifies an untimely delay in providing access to public records. 02-ORD-165, p. 3. "It is incumbent on [GCMH], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 [et seq.] considering the overall purpose of the [Act]," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. 7 As repeatedly observed by this office, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
In a related vein, the failure of GCMH to cite the specific statutory exception upon which it relied in tentatively denying Mr. Wilson access to some or all of the requested records is also contrary to the express language of the Open Records Act. If GCMH elects to withhold any information contained within records that are responsive to Mr. Wilson's request, it must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof withheld, per KRS 61.880(1). 01-ORD-232; 99-ORD-155. In 97-ORD-41, this office observed:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
Id., p. 6. In short, the vague reference to "several bas[e]s upon which [the requested] information may or may not" be subject to disclosure, "including, but not limited to, the threat or actual filing of litigation," does not contain the specificity envisioned by KRS 61.880(1), nor does the reference to "substantial litigation" including a suit against the managing entity relied upon by GCMH found in its supplemental response. 8 "Because [GCMH] failed to cite the statutory exception upon which it relied in denying [the] request as to the records at issue, and explain how the exception applies to those records, its response was procedurally deficient" in this regard as well. 04-ORD-44, p. 4. 9
Turning to the substantive issues presented, this office has consistently recognized that a public agency cannot provide a requester with access to a records that it does not have or which do not exist. 04-ORD-046, p. 4, citing 00-ORD-83; 02-ORD-120; 01-ORD-11; 98-ORD-71; 98-ORD-35; 96-ORD-190; OAG 97-ORD-17; OAG 91-112; OAG 83-111. An agency discharges its duty under the Open Records Act by affirmatively so indicating as GCMH did here. 03-ORD-205, p. 3, citing 99-ORD-98. 10 Although there are occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of records by demonstrating any efforts made to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, we do not believe that additional inquiry is warranted on the current facts. Aside from Mr. Wilson's bare allegation to the contrary, there is nothing in the record on appeal that brings into question the veracity of GCMH's assertion that computers equipped with the accounting software containing responsive records were seized by their leaseholder. Because GCMH "cannot produce that which it does not have" and satisfied its duty to affirmatively indicate as much to Mr. Wilson, we conclude that GCMH did not commit a substantive violation of the Open Records Act.
In its response on appeal, however, GCMH indicated that every effort is being made "to generate final accounting reports" but "this will require the generation and/or creation of reports that do not currently exist." Even though such action is not required by GCMH under the Open Records Act, as correctly observed by Mr. Bausch, "this information will be provided upon its creation." In generating documents that are responsive to Mr. Wilson's request, GCMH is going above and beyond its statutory obligations. "[R]equests for information, as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. In addressing this issue, the Attorney General has observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, "[W]hat the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." OAG 91-12, p. 5.
02-ORD-165, pp. 4-5. Consistent with the foregoing, we conclude that the actions of GCMH relative to the request of Mr. Wilson were consistent with the provisions of the Open Records Act with the exception of the noted procedural errors.
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.
Distributed to:
David Wilson402 Danville StreetLancaster, KY 40444
Joe MillerWilliam A. BauschGess, Mattingly & Atchison, P.S.C.201 W. Short StreetLexington, KY 40507-1269
Jeff MossGarrard County Attorney102 Stanford Street, Suite OneLancaster, KY 40444
Footnotes
Footnotes
1 KRS 58.120 provides:
Any governmental agency acquiring any public project pursuant to the provisions of KRS 58.010 to 58.140 may, at the time of issuing the bonds for such acquisition, provide for additional bonds for extensions and permanent improvements to be placed in escrow and to be negotiated from time to time as proceeds for that purpose may be necessary. Bonds placed in escrow shall, when negotiated, have equal standing with bonds of the same issue.
2 In a letter dated April 29, 2004, a copy of which is attached to Mr. Bausch's response on appeal, Mr. Bausch acknowledged receiving Mr. Wilson's request but advised him "there was an inherent delay in getting the information to [his] office" since "the facility is closed[.]" Mr. Bausch advised Mr. Wilson as follows:
Your request is being treated as an open records request under the Kentucky Revised Statutes. According[ly], there are several bas[es] upon which this information may or may not be allowed, including, but not limited to, the threat or actual filing of litigation.
In order to fully assess this matter, it will take approximately 60 days to review these accounts and provide a response to your request. This review is further hampered by the fact that there are no employees at the hospital to perform this service and no available funds to expedite the processing [of] your request.
3 Mr. Wilson's "amendment" is dated May 3, 2004, and the attached response is dated May 6, 2004. Attached to these documents is a copy of Mr. Bausch's response on behalf of GCMH.
4 As we read Mr. Bausch's response, GCMH is not arguing that the hospital and county are not related but, rather, that GCMH is not owned by the county.
5 KRS 61.870(1) broadly defines "public agency" to include:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority or funds;
(i) Any entity where the majority of its governing body is appointed by a public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined by paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined by paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection [.]
6 As we observed in 99-ORD-152:
The Attorney General has long recognized that the Open Records Act applies to a private nonprofit corporation if it receives 25 percent or more of its funds from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94- ORD-98; 96-ORD-99; 97-ORD-65. Where evidence is introduced that the corporation receives less than 25 percent of its funds from state or local authority, the Attorney General has held that it cannot properly be characterized as a public agency. 93-ORD-90; 96-ORD-127.
Id., p. 2. 94-ORD-68 and 94-ORD-1 are instructive as to the analysis this office employs when sufficient information has been presented to conclusively determine how an agency should be characterized.
7 In OAG 92-117, the record on appeal supported an agency's twenty-one day delay in honoring an open records request. Given the broad scope of the request, the ongoing nature of the Department's investigation into the requester's client, and the need to acquire a copy of the records to review upon concluding the investigation but prior to disclosing the records, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis timely access.'" Id., p. 5. Conversely, the record did not support a delay of ten to thirteen days in 01-ORD-140, and, in 00-ORD-184, this office concluded that a delay of three months was not warranted on the facts presented. In short, no bright line rule exists.
In the instant appeal, the record does not contain sufficient information for this office to make such a fact specific determination. Given the unique circumstances as described by Mr. Bausch, specifically the leaseholder's reclamation of the hospital computers, however, sixty days appears to be a reasonable period of time in which to determine whether any records in the custody of GCMH are responsive to Mr. Wilson's request and provide him with access to any nonexempt information contained therein.
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8 Although GCMH ultimately indicated that an action is pending in U.S. District Court which "directly involves the exact materials that are being requested by Mr. Wilson," a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. The Open Records Act presumes that the agency's initial response pursuant to KRS 61.880(1) "is complete in and of itself." 02-ORD-118, p. 3; 04-ORD-046. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. In responding to future open records requests, GCMH should be guided by these principles.
9 Viewing the record in its entirety, it is apparent that GCMH has exhibited a spirit of cooperation and acted in good faith throughout these proceedings so we ascribe these procedural deficiencies to an honest misunderstanding of its obligations under the Act rather than an improper motive.
10 Because the inability of an agency to produce requested records "due to their apparent nonexistence is tantamount to a partial denial" of a request, it is incumbent on the agency to so indicate "in clear and direct terms." 02-ORD-145, p. 3, citing 01-ORD-38; 00-ORD-83; 97-ORD-16; OAG 91-101; OAG 86-38.