Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of Garrard County Long Term Care Facility, Inc. relative to the request of David Wilson for copies of specified GCLTCF Board meeting minutes, any records documenting "disbursements made to Christian Care Centers of Lancaster, Inc. after July 11, 2004," any "additional invoices from Gess Mattingly & Atchison P.S.C. or other law firms since June 30, 2004," and "all invoices and billing documents from Tichenor and Associates L.L.P." from the time GCLTCF hired Tichenor to the present, violated the Kentucky Open Records Act. Because GCLTCF has provided Mr. Wilson with copies of all existing minutes, any issues relative to those records are now moot. By affirmatively indicating to Mr. Wilson that the remaining minutes requested do not exist, GCLTCF discharged its duty under the Open Records Act as to those records. In notifying Mr. Wilson that no records which are responsive to his request for disbursements made to CCCL are in its custody or control, GCLTCF substantially complied with the provisions of the Act. With respect to the accessibility of the "additional invoices" from Gess Mattingly & Atchison, and the "invoices and billing documents" generated by Tichenor & Associates, the analysis contained in 04-ORD-084 applies with equal force on the facts presented. To the extent that GCLTCF has failed to provide Mr. Wilson with timely access to the requested records still at issue in the absence of a detailed explanation for the delay, GCLTCF violated KRS 61.872(5). 1 On this issue, the analysis contained in 02-ORD-62 is determinative.
By letter directed to the GCLTCF Custodian of Records on September 28, 2004, Mr. Wilson requested copies of the minutes from the GCLTCF Board meetings held in December 2003, January 2004, April 2004, May 2004, and June 2004, as well as the minutes of all Board meetings held from July 11, 2004, to the present. 2 Said another way, Mr. Wilson's request "should be construed to include any and all minutes of board meetings" which he had not obtained as of that date. 3 In addition, Mr. Wilson requested copies of "any documents related to disbursements made to Christian Care Centers of Lancaster, Inc. after July 11, 2004," and "any additional invoices from Gess Mattingly & Atchison P.S.C. or other law firms since June 30, 2004." Lastly, Mr. Wilson requested copies of "all invoices and billing documents from Tichenor and Associates L.L.P." from the time GCLTCF hired the firm to the present.
In a letter dated October 8, 2004, a copy of which is attached to Mr. Wilson's appeal, Mr. William A. Bausch, of Gess Mattingly & Atchison, responded on behalf of GCLTCF. In relevant part, Mr. Bausch advised Mr. Wilson as follows:
As you are aware, GCLTCF is not operating and has no employees. . . . Despite these difficulties, a response to your request will be undertaken and completed no later than October 22, 2004. This response will be immediately forwarded to your attention, indicating either the availability of the documents in question or the grounds for refusal to produce.
Again, every effort is being made to respond as rapidly as possible and the documents you have requested are being requested or moved from storage, thus requiring the delay in formally responding to your September 28, 2004 request until October 22, 2004.
On November 4, 2004, Mr. Wilson initiated this appeal, claiming that the promised response had "never come." 4 Having summarized his original request, Mr. Wilson further observes that GCLTCF "has previously agreed to produce the legal billing records accumulated before June 30, 2004," but has not done so "as of this writing."
Upon receiving notification of Mr. Wilson's most recent appeal, Mr. Bausch responded on behalf of GCLTCF via facsimile received by this office on November 9, 2004. As explained by Mr. Bausch, "a copy of the October 22, 2004 response has once again been sent to Mr. Wilson, this time via certified mail." With respect to the minutes of GCLTCF Board meetings, GCLTCF observes:
You indicate in your September 28, 2004 letter that you did not receive all of the minutes that were made available for your review on August 13, 2004. This is not correct. You spent less than five minutes making a cursory review of these documents and requested copies. Every document that was made available to you on August 13, 2004 was copies and provided to you. Additionally, on September 10, 2004 you were provided with the following:
There were not meetings of the board of [GCLTCF] in December 2003, January 2004, April 2004, May 2004, June 2004 and September 2004. Therefore, no minutes exist.
Subsequent to your July 11, 2004 letter (and our response) there were meetings of the board of [GCLTCF] on July 20, 2004, and August 16, 2004. A copy of these minutes [is] enclosed.
According to Mr. Bausch, "there are no records of any disbursements to Christian Care Centers of Lancaster, Inc. within the records under [GCLTCF's] custody and control. " 5 However, "the invoices for Gess Mattingly & Atchison, P.S.C. are being reviewed and redacted for privileged communications and privacy concerns. This process will be completed within thirty days and [Mr. Bausch] will notify [Mr. Wilson] of the date and time [he] may review these records." With respect to the records maintained by Tichenor & Associates, GCLTCF advises Mr. Wilson as follows:
Accounting and cost report information is in the custody and control of the accountants for the preparation of the appropriate reports. A request has been made to Tichenor & Associates, LLP for their records, as well as a review for potential redaction, given patient concerns or privileged information. I have not received a response from Tichenor & Associates LLP with respect to the timing [of when] these documents will be available and I will supplement my response to you as soon as I have received notification from Tichenor & Associates as to records availability.
In a reply received by this office on November 15, 2004, Mr. Wilson acknowledges receiving the existing minutes which are responsive to his request from GCLTCF, and "will accept" its statement that no additional disbursements have been made to CCCL. However, Mr. Wilson takes issue with the response of GCLTCF relative to the "legal and accounting billing records." Considering that none of these records were produced within sixty days as originally promised, Mr. Wilson asks that "the mootness of this matter be reconsidered." 6 Challenging the assertion that Tichenor & Associates is in "control" of the accounting records, Mr. Wilson requests that decisions be issued "on the merits of these two appeals."
In a letter dated November 27, 2004, Mr. Wilson notifies this office that Mr. Montgomery forwarded a copy of a letter "from the legal representative of the accounting firm of Tichenor & Associates" to him which is allegedly responsive to his request. According to Mr. Wilson, it is not. 7 Therefore, Mr. Wilson requests that the Public Corruption Unit of the Attorney General's Office investigate why GCLTCF "is apparently destroying financial records." 8
Our review begins with the first category of records requested by Mr. Wilson, the minutes of the GCLTCF Board meetings. On appeal, Mr. Wilson concedes that GCLTCF has now provided him with copies of the missing page from the minutes of the April 2003 Board meeting, the minutes of the March 2004 Board meeting, and the minutes of the April 2004 meeting. In addition, GCLTCF has provided Mr. Wilson with the minutes of the Board meetings held subsequent to his original request dated July 11, 2004, on July 20, 2004, and August 16, 2004. Accordingly, any issues relative to those records are now moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has consistently held that if access to public records which are the subject of a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Further comment regarding the minutes of the Board meetings which GCLTCF has provided to Mr. Wilson is therefore unwarranted.
Because the GCLTCF Board did not hold meetings during the remainder of the months specified, "no minutes exist." Likewise, GCLTCF denies having possession of any records which are responsive to Mr. Wilson's request for records documenting disbursements to CCCL. As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-214, p. 3; 04-ORD-036; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD17; OAG 91-112. It stands to reason that GCLTCF cannot produce for inspection and copying that which it does not have, in this case, minutes from Board meetings which were never held, and records documenting disbursements which may or may not have ever been made. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of an agency denying access to public records on this basis, the Attorney General has repeatedly observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
04-ORD-214, p. 4, citing 02-ORD-144, p. 3; 04-ORD-205; 03-ORD-220.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as GCLTCF ultimately did here. 04-ORD-214, p. 4, citing 98-ORD-154, p. 2. 04-ORD-046, p. 4. 9 It is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 04-ORD-214, p. 4, citing 01-ORD-36, p. 2; 04-ORD-205. Rather, the role of the Attorney General in adjudicating a dispute concerning access to public records is defined by KRS 61.880(2), and this office is without authority to deviate from that statute.
Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated in accordance with the mandate of KRS 61.8715, 10 further inquiry is not warranted in reference to these records. To the contrary, the explanation provided by GCLTCF for the lack of minutes from the specified months is entirely credible, and Mr. Wilson "is willing to accept" the latter contention by GCLTCF. Because GCLTCF "cannot furnish that which it does not have," and notified Mr. Wilson in writing that it does not possess records matching either description, GCLTCF has discharged its duty relative to these records. In light of this determination, the remaining issue is whether the actions of GCLTCF relative to the requested "legal and accounting billing records" complied with the Open Records Act.
Although GCLTCF originally denied Mr. Wilson's request for copies of "any records or billings from and disbursements to Gess, Mattingly & Atchison or any other law firm or professional service corporation" on the basis of KRS 61.872(6), GCLTCF subsequently advised this office that it would provide Mr. Wilson with access to all responsive records in its possession within sixty days from August 28, 2004. Given the unique circumstances presented, this office deemed sixty days to be a reasonable time frame. 11 However, GCLTCF indicated that the invoices for Gess Mattingly & Atchison were "being reviewed and redacted" in its response to Mr. Wilson dated October 22, 2004, estimating that the process would be completed within thirty days.
In 04-ORD-084, 12 a copy of which is attached hereto and incorporated by reference, this office conclusively resolved any issue regarding the accessibility of such records in favor of Mr. Wilson. That being the case, the question becomes whether GCLTCF has violated the Open Records Act in failing to provide Mr. Wilson with "timely access" to the requested records which are clearly subject to inspection. In concluding that an agency had failed to provide timely access to the records identified in a request, the Attorney General reasoned:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. We believe that determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to [e]nsure that those individuals are afforded timely access to the records they wish to inspect.
00-ORD-188, pp. 6-7, citing 93-ORD-134, pp. 11-12. 13 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-140, p. 4, citing 01-ORD-38, p. 5. Noticeably absent from the response of GCLTCF are these mandatory elements. However, this determination is now academic as more than thirty days has elapsed since GCLTCF responded to Mr. Wilson's request. Assuming that GCLTCF provided Mr. Wilson with access to the legal billing records within the designated time frame, GCLTCF complied with the Open Records Act. If not, GCLTCF subverted the intent of the Act short of denial of inspection by failing to afford Mr. Wilson "timely access" to those records.
Although this office imputes no improper motive to GCLTCF, the response issued by Tichenor & Associates to Mr. Bausch relative to Mr. Wilson's request raises records management issues. 14 In 1994, the General Assembly substantially amended the Open Records Act, finding an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Early on, the Attorney General recognized that KRS 171.690 makes no provision for the storage of records with a private firm. OAG 82-283, p. 1. In keeping with this legislative scheme, a public agency "may not store any records with a private storage firm without approval from DLA, and even with such approval, can only store records with a private firm if the local agency maintains and operates the storage space." Id.
More recently, this office reaffirmed the principle that "public records in the custody of a private agent are subject to inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l)." 04-ORD-123, p. 3. Because Tichenor & Associates also appears to hold the requested records "at the instance of and as custodian on [GCLTCF's] behalf," its position that it has no control over these records is equally without merit. Id., p. 2. "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); 04-ORD-123. 15 Consistent with the foregoing authorities, this office hereby refers the matter to the Public Records Division of the Department for Libraries and Archives for whatever action that agency deems appropriate.
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 proceedings.
Footnotes
Footnotes
1 KRS 61.872(5) provides:
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.
2 Prior to making his request, Mr. Wilson explains:
I made an open records request on July 11, 2004 for the minutes of all board meetings [held] since the corporation['s] inception. Subsequently, we met for a review of those documents on August 13, 2004 and I elected to purchase copies of all minutes. Ultimately, I received copies from you on August 27, 2004 only to discover that I had not received any minutes for meetings after December 4, 2004 (November's meeting).
I complained about this situation to you in my letter of August 30, 2004 and you then sent me the unsigned minutes for the February and March 2004 meetings. I have yet to receive all the minutes I reviewed on August 13, 2004.
3 Attached to Mr. Wilson's letter of appeal is a copy of the letter from this office dated August 20, 2004, acknowledging receipt of his open records appeal dated July 26, 2004, in which Mr. Wilson challenged the denial by GCLTCF of his request for copies of specified records including the minutes from all GCLTCF Board meetings. Because GCLTCF agreed to make the records available to Mr. Wilson on Friday, August 13, 2004, any issues relative to the requested records became moot. Citing 40 KAR 1:030, Section 6, this office therefore declined to issue a decision on the merits of his appeal. Also attached to his appeal is a copy of Mr. Wilson's letter to the GCLTCF Custodian of Records (Dr. H. E. Montgomery, Jr.) dated August 30, 2004, in which he acknowledges receiving copies of the minutes from Dr. Montgomery on August 27, 2004, but complains that December 4, 2003, is the last Board meeting from which minutes have been provided to him and "page # 3 of 3 is missing from the April 29, 2003 board minutes. " In a response directed to Mr. Wilson on September 10, 2004, Dr. Montgomery enclosed copies of the missing page from the minutes of the April Board meeting, the minutes of the GCLTCF Board meeting of February 3, 2004, and the minutes of the GCLTCF Board meeting of March 11, 2004. Because the latter meeting was "a Joint Long Term Care/Acute Care meeting," Dr. Montgomery advised Mr. Wilson that he might have already received a copy from the Acute Care Facility. According to Dr. Montgomery, the referenced meetings "are the only Long Term Care Facility Board meetings held prior" to his request of July 11, 2004.
4 With respect to factual disputes of this nature, the Attorney General has consistently observed:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that [Mr. Wilson has been] permitted [to inspect] some records [he] asked to inspect, and that copies of some records have been provided. Hopefully, any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3. As in these decisions, the record on appeal does not contain sufficient information concerning the actual delivery and receipt of the response issued by GCLTCF or the minutes initially provided to Mr. Wilson for this office to conclusively resolve the related factual discrepancies.
5 Pursuant toKRS 61.872(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.
It is unclear from the record whether GCLTCF is denying that such records exist or merely denying that such records are in its possession, although it appears that records of disbursements would be encompassed in the "accounting and cost report information" which is in the "custody and control" of Tichenor & Associates. Assuming that is the case, GCLTCF has complied with this provision. If not, GCLTCF must provide Mr. Wilson with the name and address of the custodial agency, if known, to fully discharge its statutory duty.
6 Attached to Mr. Wilson's reply is a copy of the letter dated August 30, 2004, in which this office acknowledges receipt of his open records appeal dated July 11, 2004, challenging the denial by the GCLTCF of his request for copies of specified records, including "any records or billings from and disbursements to Gess Mattingly & Atchison or any other law firm or professional service corporation from August 1, 2003, to the present." Upon receiving notification of Mr. Wilson's appeal, Mr. Bausch notified this office that GCLTCF would supply "all documentation within its possession, within sixty days" to Mr. Wilson, a time frame which this office deemed reasonable under the unique circumstances presented. Although GCLTCF is no longer operational and has no employees, it agreed to make every effort to provide the requested information in less time. Accordingly, any issues relative to those records became moot so this office was again precluded from issuing a decision pursuant to 40 KAR 1:030, Section 6.
7 Upon receiving Mr. Bausch's letter requesting copies ofinvoices to satisfy Mr. Wilson's request, David J. Hale, of Reed Weitkamp Schell & Vice PLLC, responded as follows:
While we appreciate the difficult position in which your clients have been placed, Tichenor is not in a position to quickly and inexpensively retrieve the records you have requested. The records are stored in offsite long-term storage and it will take significant amounts of time to retrieve, review and copy the requested records. While we wish to be cooperative, we would prefer to first have a clear understanding of the resources available to reimburse our out-of-pocket costs for retrieval, review and copying of these records. Additionally, if the person requesting the records is able to more narrowly focus his request, the costs may be reduced.
It is Mr. Wilson's contention that:
. . . the "Local Government Records Retention Schedule" (Page J1, Series No. L5011) requires that an "Accounts Payable File" be maintained and include vendor invoices. These invoices are required to be maintained for three years. 725 KAR 1:030 mandates the use of these Retention Schedules on the statutory authority of KRS 171.450.
8 As long recognized by this office:
Under the Open Records Act [,] the Attorney General has a precise and limited function which, as set forth in KRS 61.880(2)(a), is to review a properly filed appeal and issue a written decision stating whether the agency violated the provisions of the Open Records Act. Thus, in the matter before us at this time we can only address whether the response to the request for documents was proper under the provisions of the Open Records Act. (Emphasis added).
96-ORD-118, p. 1. Accordingly, this issue is beyond the scope of our review in the context of an open records appeal.
9 On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98.
10 In relevant part, KRS 61.8715 "finds an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . ."
11 Prior decisions involving Mr. Wilson and Garrard County Memorial Hospital, Inc., a separate but related entity which is also represented by Gess Mattingly & Atchison, and the dissolution of which the same individuals appear to be overseeing, provide insight as to the convoluted history shared by these parties. See 04-ORD-080, 04-ORD-084, and 04-ORD-113.
12 At issue in 04-ORD-084 was whether GCMH violated the Open Records Act in refusing to accept service of Mr. Wilson's request for records documenting any fees paid within the prior twelve months to "any law firms or professional service corporations including but not limited to McBrayer, McGinnis, Leslie and Kirkland, PLLC and Gess Mattingly & Atchison." In concluding that Mr. Wilson would prevail on the merits even if GCMH had provided a legal basis for its apparent denial of his request, this office observed that "the public's right to access records reflecting public funds expended for the rendition of legal services is beyond dispute, and this reasoning is equally applicable" to records of the type requested which are generated by "professional service corporations." Id., p. 5.
13 See 02-ORD-62, a copy of which is attached hereto and incorporated by reference, for the detailed analysis employed by this office in determining whether an agency has provided timely access to records requested.
14 725 KAR 1:030, cited by Mr. Wilson, is entitled "Disposal or destruction of public records; procedure.," and relies upon KRS 171.450 as statutory authority.
15 Although Cullinan is an unpublished opinion which cannot be cited or used as authority in any other case in any court of this state pursuant to Rules of Civil Procedure (CR) 76.28(4)(c), it reflects the position of the Court on this narrow issue unless and until the Court adopts a contrary view in a published opinion. In Cullinan, 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 those records and was therefore not the custodian. Affirming the circuit court's judgment ordering production 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 . . . .
Id. 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.