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 Cave City relative to the requests submitted by Toni Dady on behalf of the Justice Coalition, Barren County Chapter, on November 3, 2004, and November 15, 2004, violated the Kentucky Open Records Act. By failing to notify Ms. Dady in writing of its decision within three business days, the City violated KRS 61.880(1). To the extent that Ms. Dady requested information rather than specifically described public records, the City was not statutorily obligated to honor her requests. Assuming the City possesses any of the "Restaurant and Transient Room Tax" records still at issue, the City must provide Ms. Dady with copies upon receipt of this decision absent an applicable statutory exception. Although this office is unable to resolve the factual issues presented by this appeal, the objective evidence of record reflects that the City has otherwise substantially complied with the Open Records Act in responding to Ms. Dady's requests.
By letter dated November 3, 2004, Ms. Dady submitted a "request for information" to City Clerk Pamela Hunt. More specifically, Ms. Dady requested the date on which health insurance was approved for the members of the City Council, the "names of all individuals that authorized and approved this package," the names of the insurance carrier and agent, and the amount of funds expended for this insurance to date. Upon receiving partially "incorrect" information in response to her request, Ms. Dady submitted another "request for information" on November 15, 2004. Having received the effective date of the insurance and the amount expended, Ms. Dady reiterated her request for the remaining items. In addition, Ms. Dady requested copies of the "Monthly Meetings for above," as well as the "Date, Amount and Name of Bank for [the] Convention Center Grant" with the "Ending Balance to Date," and the "Motel, Hotel and Restaurant Tax revenue received by [the] City----1997 to Date," including the "Expenditures/transfer of funds by date and amount of each transaction" and the account balance.
By letter dated November 26, 2004, Ms. Dady initiated this appeal challenging the actions of the City relative to her separate but related requests. According to Ms. Dady, the City ultimately provided her with three pages of the "Cave City Council Health Insurance Analysis, 1995-2004," which included the amount of funds spent on the insurance to date, the names of the City Council members, the insurance company and the carrier, but did not identify the agent, the date on which the plan was issued, or the person "initiating" or approving the plan. 1 As observed by Ms. Dady, the City provided her with copies of the "[minutes of the] Fiscal annual meetings" in response to her request for the "[minutes of the] monthly Council meetings." With respect to her second request, Ms. Dady indicates that the City provided her with "some of the [minutes of] the monthly meetings" on November 23, 2004, but the minutes of January 1995 through June 1995 were not included. In addition, Ms. Dady has "received nothing" concerning the three million dollar grant or the hotel/ motel restaurant tax as requested because "the clerk claims it's locked in the computer and she doesn't have the password." 2
Upon receiving notification of Ms. Dady's appeal from this office, Bobby H. Richardson, City Attorney, responded on behalf of the City. As correctly observed by Mr. Richardson:
You will note that the November 3rd request is not in fact a request for records or documents; but, rather, is simply a request for information. The Open Records Statute only requires that records or documents that are identified be made available-not that the custodian of records search the records to find certain information.
As to Request No. 2, on November 15, 2004, the only request for records is [for] "copies of monthly meetings for above." Again, that [is] an invalid request as well as being very vague. It is not stated whether it is the city council meetings or some committee meeting. It is not the responsibility of the custodian to search the records to find information that the requester wants; but, rather, simply to make available or provide identified records.
In an effort "to be cooperative and comply with the requests," the City Clerk has searched through the records "to find the information requested." According to the City: "All requested information in the custody of the city clerk is contained in documents" which have been provided to Ms. Dady. "In an effort to go beyond the requirements of the law," the City Clerk is copying the minutes of each City Council meeting "from July 19, 1995, until date."
With respect to Ms. Dady's second request "dealing with the Cave City Convention Center Grant and the Motel and Restaurant Tax," the City contends that Ms. Dady is again requesting information rather than specifically described public records. However, "the information is contained in the records provided to [Ms. Dady]." 3 According to Mr. Richardson:
The last three attachments to the Appeal are directed to the Cave City Convention Center. These records are not within the custody of the City of Cave City, and the clerk cannot respond regarding them. The Cave City Convention Center is a quasi independent agency, operated by an independent board of directors. The request and appeal should be directed to that agency-not to the city clerk. 4
In conclusion, the City asserts that "all information requested has been supplied within the documents given to the requesting party, 5 and it is the position of the [C]ity that it is the responsibility of the requesting party to secure from the documents the information that is desired."
By letter dated December 14, 2004, Ms. Dady replied to the arguments raised by the City. According to Ms. Dady, not once "has any one request been complete at one time." Since the Ms. Hunt has acknowledged that "she and the Bookkeeper at the Convention Center went to South Central Bank and opened an account" for the three million dollars in question, the Justice Coalition "no longer bothered her with that." Although Ms. Dady received a copy of the 1995-1996 budget which is not responsive to her request, the City provided her with copies of the minutes of the monthly City Council meetings from July 1995 through June 1997 as agreed. In her view, the Transient Room and Restaurant Tax records provided by the City are partially responsive and somewhat duplicative. 6 However, the City Attorney has advised Ms. Dady that no records exist which are responsive to her request for "CDs/Savings" for the Tax funds at issue. 7
As a public agency, the City is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or her purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. 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. (Emphasis added).
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 the [City'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:
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 in 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.
As previously noted, the City did not initially respond to either of the requests submitted by Ms. Dady in writing or within the requisite time frame. More specifically, the City responded to her request dated November 3, 2004, sometime after November 11, 2004, and provided Ms. Dady with a partial response to her request dated November 15, 2004, on November 23, 2004. Such a delay constitutes a violation of the Open Records Act absent a "detailed explanation" accompanied by "the place, time, and earliest date on which the public record will be available for inspection" as required by KRS 61.872(5), both of which are noticeably lacking here. To this extent, the responses provided by the City are procedurally deficient. 8 Although the City was not obligated to honor Ms. Dady's requests for information, as explained below, the City was statutorily obligated to issue a timely written response to that effect. Failing to respond, as the City did initially, constitutes a violation of KRS 61.880(1). As repeatedly observed by this office, the procedural requirements of the 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; 04-ORD-080. To avoid future violations, the City should adhere to these guidelines when responding to requests submitted pursuant to the Open Records Act.
Turning to the substantive issues presented, the subject requests for names, dates, and amounts are properly characterized as requests for information rather than existing public records with the exception of the request for copies of the minutes of the City Council meetings. 9 Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. 10 On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this issue, the Attorney General has recognized:
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.
04-ORD-080, p. 13, citing OAG 87-84. 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.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. 11
In light of these authorities, the City could have refused to honor Ms. Dady's requests as framed and, therefore, did not commit a substantive violation of the Act in its belated disposition of her requests. With the exception of the responsive portions of the "General Ledger," and any existing records in its custody which are responsive to her request for the Restaurant and Transient Room Tax Records, the City appears to have provided Ms. Dady with copies of records containing the requested information. That being the case, any issues related to those records are now moot. Pursuant to 40 KAR 1:030, Section 6: "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." See 04-ORD-046; 03-ORD-087. 12 Because any issues relative to the information/records requested became moot upon the City's release of any responsive records in its custody, this office must decline to issue a decision on the merits as to those records.
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.
Toni DadyJustice CoalitionBarren County Chapter1006 Mammoth Cave Rd.Cave City, KY 42127
Pamela N. HuntCity Clerk of Cave CityP.O. Box 567Cave City, KY 42127
Bobby RichardsonCity Attorney117 E. Washington StreetGlasgow, KY 42144
Footnotes
Footnotes
1 On November 7, 2004, and again on November 11, 2004, Ms. Dady called the City Clerk to inquire whether the requested copies were available, but did not receive the Insurance Analysis until sometime later.
2 Although Ms. Dady "also requested a copy of the Bi-Laws/Articles from the Convention Center[,]"and received a copy of the Kentucky Revised Statutes instead, our review focuses exclusively on the actions of the City relative to the subject requests which do not encompass these records. However, such records are generally subject to inspection.
Attached to Ms. Dady's letter of appeal are copies of three requests directed to the Cave City Convention Center dated November 10, 2004 ("All monthly income and expenses beginning in 1997 to date, including taxes generated by hotels, motels, restaurants, and monies from any and all grants and disbursements of the funds"), November 15, 2004 (copies of "[the minutes of] all Board meetings beginning 1995 to date"), and November 16, 2004 (a copy of "the Convention Center Bi-Laws, Rules and Regulations"). Because the City and the Convention Center are separate entities, and the records identified in these requests are in the custody of the Convention Center, the City appears to have belatedly discharged its statutory duty in this respect by providing Ms. Dady with the name and address of the custodial agency as required by KRS 61.872(4).
3 Regarding factual disputes of this nature between a requester and a public agency, the Attorney General has long recognized:
This office cannot, with the information currently available, adjudicate 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 [the City] has permitted inspection of some records [Ms. Dady] 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.
02-ORD-31, p. 4, citing OAG 89-81.
4 Our research has revealed no prior decision of this office establishing with certainty the status of the Convention Center, nor does the record contain evidence which conclusively resolves this issue.
5 See Note 3.
6 Attached to Ms. Dady's reply is a copy of a letter from Ms. Hunt directed to David Gilbert, CPA of Gilbert & Gilbert on November 26, 2004, requesting copies of "the Restaurant and Transient Room Tax accounts in detail from the General Ledger." As observed by Ms. Hunt, the request is for "all transactions, deposits and expenditures from each of the accounts." Ms. Hunt is "unable to generate computer reports on closed years on ABPI." Also forwarded to Ms. Dady was a note from Ms. Hunt informing her that the remainder of the meeting minutes requested would be completed "sometime next week."
By letter dated December 1, 2004, a copy of which is also of record, Ms. Hunt notified Ms. Dady that she "was able to find" responsive records from 1998-2004 relative to the specified accounts, and the "signature pages of [the] health insurance contracts," both of which would be available at her convenience. As explained by Ms. Hunt, contracts which are renewed without change "do not require a signature page" because such a contract is considered a "renewal" of the contract from the previous year. According to a notation made by Ms. Dady, the requested copies were not ready on December 2, 2004. On December 7, 2004, Ms. Hunt notified Ms. Dady that the records relating to the Tax accounts were ready. On the same day, Ms. Dady submitted a "request for information" to the City, outlining the status of her previous requests. Characterizing the City's response to her initial request as "incomplete," Ms. Dady clarified that her request for the "names of all individuals . . . " was "not under the Budget approval," but the person or persons "who actually initiated this insurance plan." Addressing her second request, Ms. Dady advised the City that the minutes of January through June 1995 had been omitted from the minutes provided. In addition, Ms. Dady elaborated upon her request for the Tax records at issue as follows:
Copies of all checks and Bank transfers paid to the Convention Center for Transit Room Tax and Restaurant Tax
Amount of any and all CD[s]/Savings [accounts] with Bank Names for the above Tax funds
Although Ms. Dady also requested copies of all checks and invoices related to the remodeling of City Hall, and the name of the account from which the funds for the remodeling of City Hall were withdrawn, the actions of the City relative to this request are not germane to this appeal since Ms. Dady filed her appeal on November 26, 2004, but requested access to the City Hall records for the first time on December 7, 2004. In her final "request for information" dated December 13, 2004, Ms. Dady advises the City that the missing meeting minutes have been received, but the "General Ledger in Detail for Fiscal Year 2001-2002" concerning the "Hotel/ Motel Tax info" was not included in its response. In relevant part, her request of December 13, 2004, otherwise mirrors that of December 7, 2004.
7 To clarify, the right to inspect attaches only after the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18. As consistently recognized by the Attorney General, "a public agency cannot provide access to records that it does not have or which do not exist." 03-ORD-205, p. 3, citing 99-ORD-98; 02-ORD-145; 01-ORD-36; 97-ORD-17; 93-ORD-134. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. An agency discharges its statutory duty by affirmatively indicating that the requested records do not exist as the City did here. 03-ORD-205, p. 3, citing 99-ORD-98.
8 In general, a public agency cannot postpone 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 the 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 otherwise unavailable, 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. 02-ORD-165, p. 3, citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must comply with KRS 61.872(5). 04-ORD-080; 02-ORD-165.
9 As revised, Ms. Dady's request for the Tax records still at issue is also sufficient.
10 On this issue, the Attorney General has observed:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." Id., citing 96-ORD-223, p. 4 (citation omitted).
11 By facsimile dated December 17, 2004, Ms. Dady alleges that the records provided "are bogus, have been tampered with, altered, and [are] not complete as the City Attorney" contends on appeal. To the contrary, Ms. Dady has still not received cancelled checks "from City Hall to the Convention Center" with the applicable tax for comparison. Therefore, Ms. Dady asks this office to "initiate an investigation, audit, etc." Although KRS 61.991(2)(a) establishes the penalty for public officials who willfully conceal or destroy public records with the intent to violate the Open Records Act, and KRS 519.060 establishes the crime of "tampering with public records, " the Attorney General is not authorized to render a decision on issues arising under these statutes, or to conduct an investigation into alleged violations in the context of an open records appeal. Accordingly, Ms. Dady's recourse in this vein lies with the courts.
12 In applying this mandate, the Attorney General has recognized that if access to public records which a requester seeks to inspect or copy if initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140.