04-ORD-123 | KOGC

Opinion

Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether the City of Windy Hills violated the Open Records Act in the disposition of Lynn S. Renau's June 11 request for "all [City of Windy Hills] drainage records." 1 For the reasons that follow, we find that the City mischaracterized the requested records as non-public records because they are located in the offices of the city's independent attorney and "do not relate to a city function," and, consequently, erred in maintaining that Ms. Renau must inspect the records at the attorney's private law office.

By letter dated July 7, 2004, 2 Mayor Louis A. Phillips advised Ms. Renau that neither the city's counsel, Foster L. Haunz, nor he "believe the records in the custody (and always in the custody) of [the city's] independent attorney are subject to disclosure under the Open Records Law. " It was the city's position that "[t]he location [of the records] within the attorney's office is not a matter over which the city has any control." Additionally, Mayor Phillips advised, the requested records "do not relate to a function of the Windy Hills government or council in that our city does not handle drainage matters, this being a function of the Metropolitan Sewer District." Nevertheless, he indicated, Mr. Haunz agreed to allow Ms. Renau to inspect a file labeled "drainage matters" by appointment in his private law office located in downtown Louisville. Dissatisfied with the city's response, Ms. Renau initiated this appeal.

In supplemental correspondence directed to the Attorney General following commencement of this appeal, Mayor Phillips explained that the dispute between these parties centers on "a letter written by . . . [MSD] to the attorney representing the city, and was read by him at a city council meeting." Noting that the city's clerk was unable to locate a copy of the letter in the city's records, he identified the question on appeal as "whether the files of independent counsel for a city can be accessed through the Open Records Law, where the files were created or maintained by the attorney from inception in the normal representation of a client (city)." Mayor Phillips answered this question in the negative, characterizing the requested records as "attorney records, not city records." Respectfully, we disagree. 3

It is the opinion of this office that the city's attorney, regardless of whether he is a city officer or a city contractor, holds the requested records at the instance of and as custodian on the city's behalf, and that the city's position that it has no control over these records is without merit. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999). 4 (Copy enclosed.)

In City of Louisville v. Brian Cullinan, above, the Kentucky Court of Appeals rejected the city's argument that documentation of legal expenses billed to the city by its contract attorneys were not public records because the city was not in possession of the items requested, and therefore not the custodian of the records. The court reasoned:

There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents . . . .

City of Louisville at 4. On this basis, the court concluded that "the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6), " Id., and affirmed the circuit court's judgment ordering production of the records.

Numerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). For example, in 95-ORD-114 we held that a public hospital improperly denied access to a letter from the U.S. Department of Justice on the basis that the letter was not in the hospital's possession, but instead in the possession of the hospital's attorney, because the hospital failed to articulate any statutory basis for denial. Similarly, in 99-ORD-194 we held that a water district improperly postponed access to a merger agreement on the basis that the agreement was not in its possession, but instead in the possession of its attorney, holding that the fact that an agency's attorney may have possession of a public record does not negate the agency's duties under the Open Records Act. Finally, in 00-ORD-93 we held that a fire department's assertion that requested public records were not available for inspection because they were in the possession of its attorney did not constitute a sufficient legal basis for postponing the requester's access to the records. See also, 00-ORD-207 (city improperly denied request for access to settlement agreement on the basis that records of insurance carrier, and defense attorney hired by carrier, could not "be opened by a demand upon the city"). While we continue to ascribe to the view that there may be rare occasions when records identified in an open records request are not public records because they reside in the custody of a private entity, 5 we approach this question with greater caution after the court's decision in City of Louisville v. Brian Cullinan, above.

We have reviewed the record proffered by Mr. Haunz as evidence "that there is nothing to hide," and which was apparently extracted from the file maintained in his office labeled "drainage matters." That letter confirms that representatives of the Metropolitan Sewer District have been invited to attend at least one city council meeting "to discuss your drainage concerns," which the MSD representative denominates "City of Windy Hills Concerns" in the letter's subject line. Moreover, the record on appeal reflects that Mr. Haunz read this letter at a public meeting in apparent response to "drainage concerns," and that much of the opposition to the construction of sidewalks within the city arises out of "drainage concerns." While "drainage matters" may be "a function of Metropolitan Sewer District," those matters constitute public business 6 of the City of Windy Hills to the extent that they impact the council's decision to construct sidewalks in the city.

Regardless of where records pertaining to drainage matters are located, they were "prepared, owned, and used at the instance of the city" and are therefore "essentially the city's documents . . . ." Cullinan at p. 4. Although Mr. Haunz holds them "as custodian on the city's behalf," id. it is their nature and purpose that is determinative of their status as public records. We are of the opinion that the question as to the custody and possession of these records was answered by Mayor Phillips, in his supplemental response, when he stated that "the files were created and maintained by the attorney from inception in the normal representation of a client (city). " We find no support for the proposition that the city has no control over its own records, wherever they are reposed, and conclude that they are public records as defined at KRS 61.870(2). 7 On this point, Cullinan is directly controlling.

Whether Mr. Haunz' private law office constitutes suitable facilities for exercise of the right of inspection of these public records is a closer question. That term is not defined by statute. However, in 02-ORD-094, the Attorney General reviewed existing authorities relating to the issue of suitable facilities, observing:

In 93-ORD-39, this office analyzed KRS 61.872(1), requiring public agencies to make suitable facilities available for exercise of the right of inspection, and KRS 61.876(1), requiring public agencies to adopt rules and regulations aimed at providing "full access to public records . . . ," and "assistance and information upon request . . . ." There we concluded that a city manager's abusive conduct toward a requester subverted the intent of the Open Records Act by creating an atmosphere so hostile that it precluded the requester from effectively inspecting the records. We observed:

93-ORD-39, p. 3. In 98-ORD-69, we took this analysis one step further and concluded that although "the requester cannot expect the agency to provide facilities which are large enough to accommodate an army of advisors and analysts, he may certainly expect that the facilities will comfortably accommodate the individuals working in concert or entirely independently." 98-ORD-69, p. 6. We concluded that "[a]s in all matters not specifically addressed by the Open Records Act, we apply a reasonableness standard." Id.

02-ORD-094, pp. 6, 7 (holding that speculation that requester would be harassed while conducting inspection on school board premises was insufficient to support claim of unsuitable facilities); see also 02-ORD-114; 03-ORD-083. This office has never addressed the question presented here: Whether city records must be made available for inspection on city premises.

Because these records are, as noted above, city records, we find that it is reasonable to require their production on city premises. KRS 61.872(1) and KRS 61.872(3)(a) support this conclusion, requiring public agencies, and not their contract attorneys, to make available suitable facilities for the exercise of the right of inspection, and providing that person may inspect public records during the regular office hours of the public agency. The record on appeal discloses that the City of Windy Hills maintains a city hall wherein the records can be inspected. The records consist of a single file which can easily be transported the seven miles from Mr. Haunz's downtown office to the Windy Hills City Hall. The city's argument, in this regard, is based on the erroneous assumption that the records sought are its contract attorney's records. Having rejected this argument, we find that it is incumbent on the city to produce the requested records in suitable facilities located in its city hall. To hold otherwise, in our view, creates the potential for subversion of the intent of the Open Records Act by creating undue hardships for individuals wishing to exercise the right of onsite inspection. Consistent with this decision, the City of Windy Hills should make immediate arrangements for Ms. Renau to conduct an inspection of the file labeled "drainage matters" maintained at its instance by Mr. Haunz, acting as custodian of the file on the city's behalf, in suitable facilities located within its city hall.

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

Mayor Louis A. PhillipsCity of Windy Hills703 Merrifield RoadWindy Hills, KY 40207

Foster L. HaunzCity Attorney1 Riverfront Plaza, Ste. 2016Louisville, KY 40202

Footnotes

Footnotes

1 Those records were specifically identified as "all correspondence from the past and present City of Windy Hills engineers . . ., MSD, consultant's reports, and reports submitted to Foster Haunz, the attorney for the City, and correspondence from him to federal, state, and local agencies."