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 City of Jeffersonville violated the Kentucky Open Records Act in partially denying the requests for specified financial information and various City records submitted by Leonard Wilson on December 1, 2004, and December 7, 2004, respectively. With regard to those records which the City has already provided to Mr. Wilson, any related issues are now moot. Accordingly, this office must decline to issue a decision as to those records. To the extent that Mr. Wilson has requested information rather than specifically described public records, the City is not statutorily obligated to honor his requests. However, the City must make a good faith effort to provide Mr. Wilson with access to those existing records in its custody which might yield the specified information still at issue. Contrary to the City's assertion, redacted versions of banking records such as the requested certificate of deposit are subject to inspection under the Open Records Act. With the exception of denying Mr. Wilson access to this record in its entirety, the City did not violate the Open Records Act relative to his requests.
On December 1, 2004, Mr. Wilson submitted a written request for "Minutes to previous meetings," the Treasurer's report, "Bills paid/Bills to be paid," the number of water meters "Tabor has set" from January to November 2004, the amount of revenue generated by the picnic shelters, the ball field, and the community building, the amount of money budgeted and disbursed for all City projects, a copy of his written request, and a copy of "CD #4007806-$ 15,000.00," to Stacey C. Honeycutt, City Clerk. In a timely response, Mayor Richard Henderson partially denied Mr. Wilson's request. As observed by Mayor Henderson:
Here is the information that you requested. Enclosed [are nos.] 1, 2, 3 and 7. #4 is not a public record and would take considerable time to research to acquire. Through the discussion with the City Attorney[,] Leah Hawkins[,] this is not a public record. #5 [is] $ 1831.00 combined. #6 your request is too vague. 1 The words "all projects" would in my opinion [] be everything the city has done to date this [fiscal] year beginning July 1, 2004[,] thru June 30, 2005. Enclosed is a copy of the [budget adopted] by the City of Jeffersonville. And finally[,] #8 is not a public record.
Having received the City's response, Mr. Wilson submitted a separate but related request on December 7, 2004. Specifically, Mr. Wilson requested "a copy of the documentation" concerning the total number of water meters set during the specified time frame, the "three accounts that [were] combined" and the name of the resulting account, CD No. 4007806 in the amount of $ 15,000.00, the money spent on "the concession building, the horse area [fence]," and the account from which that money was drawn, and a signed copy of his written request. In a timely response, Mayor Henderson advised Mr. Wilson as follows:
The information you requested is as follows per conversation with [City] Attorney Leah Hawkins. #1 is not an existing document. #[2:] I gave you this information [in response to your] request dated 1/6/04 and you had it listed as #8. #3 is not a public record. And #4 is not an existing record.
By letter dated December 12, 2004, Mr. Wilson appeals from these partial denials of his requests.
Upon receiving notification of Mr. Wilson's appeal from this office, City Attorney Leah Hawkins responded on behalf of the City. According to Ms. Hawkins, the City has provided Mr. Wilson with copies of records which are responsive to Items 1, 2, 3, and 7 of his initial request. With respect to the fourth item, total number of water meters, Ms. Hawkins correctly observes:
KRS 61.872(3)(b) allows a person to inspect public records by receiving copies of the public record [s] from the public agency through the mail, only after a requestor precisely describes the public records which are readily available within the public agency. Mr. Wilson made a request for information, not a request for a specific public record. A public agency is not obligated to create records to satisfy a particular open records request. 97-ORD-56, 96-ORD-139, 95-ORD-48. Neither is a public agency required to honor a request for information as opposed to a request for specifically described records. See 99-ORD-71, 97-ORD-182, 96-ORD-146, 96-ORD-53, 95-ORD-150, 95-ORD-131.
As to Item No. 5, the City again indicates that the amount of revenue generated was $ 1831.00. A copy of the budget adopted by the City was provided to Mr. Wilson which apparently contains the information described at Item 6. Likewise, the City has already provided Mr. Wilson with a copy of his written request (Item 7). It is the City's position that a CD "is an asset of the City and not a public record. " Moreover, Mr. Wilson received documentation regarding the amount of the CD at issue in response to his initial request dated December 1, 2004. In the City's view, a bank record "with a specific account number and other private information should not be disseminated among the public. Furthermore, a Certificate of Deposit does not meet the definition of public record as set forth in KRS 61.870." 2
With respect to Mr. Wilson's second request, the City reiterates that Item No. 1, documentation concerning the total number of water meters, "is not an existing document." 3 Elaborating upon the City's position, Ms. Hawkins correctly observes:
A public agency is not obligated to honor a request for information as opposed to a request for specifically described public records. This is a request for information, not for a specifically described record. 99-ORD-71, 97-ORD-182, 96-ORD-150, 96-ORD-146, 95-ORD-150, 95-ORD-131. Furthermore, a public agency is not obligated to create records to satisfy a particular open records request. 97-ORD-56, 96-ORD-139, 95-ORD-48.
As to Item No. 2, documentation concerning the three combined accounts, the City reiterates that the "information was previously supplied" to Mr. Wilson. 4 With regard to Item No. 3, the aforementioned CD, the City refers us to its prior response. In reference to Item No. 4, documentation of the money spent on the specified projects, the City again argues that the request is for information rather than documents and, therefore, does not have to be honored. Finally, the City indicates that Mr. Wilson has been provided with a copy of his written request. 5
Our analysis begins with those records and items of information which have already been provided to Mr. Wilson. 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." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that if access to public records which are being sought for inspection or copying is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " As evidenced by the foregoing summary, the City has provided Mr. Wilson with some of the requested information as well as those existing records in its custody which are responsive to his first request with the exception of the total number of water meters, the amount of money designated for "all projects," and CD No. 4007806. Likewise, the City has honored Mr. Wilson's second request with the exception of those items. 6 On appeal, Mr. Wilson concedes as much, focusing exclusively on those requests which the City has characterized as requests for information, and therefore denied, and those which the City has denied because responsive records do not exist. That being the case, any issues relative to the released records, namely, Item Nos. 1, 2, 3, 5, and 7, and Item Nos. 2 and 5, respectively, are now moot and, therefore, the Attorney General must decline to issue a decision on the merits as to those records. In light of this determination, the question becomes whether the City properly denied Mr. Wilson's request for the total number of water meters installed during the specified time frame, the amount of revenue generated by the specified projects, and CD No. 4007806. It is the decision of this office that the City properly denied Mr. Wilson's request for the remaining items as requests for information, but must provide Mr. Wilson with a redacted copy of the CD at issue consistent with the following authorities.
Early on, this office clarified that the "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. 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. Elaborating upon this position, 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, citing 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.
However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). 7 In keeping with this position, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5.
It is unclear from the record whether Mr. Wilson both lives and works in the county where the requested records are located. Assuming that is the case, the City may require Mr. Wilson to conduct an on-site inspection of those existing records in its custody which are potentially responsive to his request prior to providing him with copies. Under such circumstances, Mr. Wilson would only be required to describe the records "with sufficient clarity to enable the public agency to locate and make them available." 97-ORD-46, p. 4. Absent a properly invoked exception authorizing nondisclosure of records containing the information being sought, the City must direct Mr. Wilson to the relevant files so that he may extract the information himself. Bearing in mind "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," KRS 61.871, this resolution of the dispute strikes a reasonable balance between the public's right of access and the agency's need "to prevent excessive disruption of its essential functions." KRS 61.876(1). Accordingly, the accessibility of the CD requested is the remaining issue presented.
Generally speaking, the financial and operational records of a public agency are subject to public inspection. See 04-ORD-113 (bank statements); 98-ORD-17 (records documenting deposits, interest rates, account fees, and a list of all certificates of deposit or repurchase agreements); OAG 91-7, p. 3 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ); OAG 90-30, p. 3 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 89-91, pp. 3-4 ("Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets of the city" are among the categories of records properly characterized as "generally recognized public recordation subject to public scrutiny in a city clerk's office"); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 76-648 (holding that "wherever public funds go, public interest follows"). In our view, this reasoning logically encompasses an actual certificate of deposit. Although the evidence of record reveals neither the exact location nor the content of the CD at issue, the fact that it contains excepted material does not render the entire record inaccessible. 8 To the contrary, KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." Accordingly, the City may redact any protected information from the CD, but must identify those portions withheld and articulate the basis for denial in terms of the applicable statutory exception. Upon remedying the error of issuing a blanket denial in response to Mr. Wilson's request for a copy of CD No. 4007806, and allowing Mr. Wilson to conduct his own "fishing expedition" for records containing the requested information still at issue, the City will be in compliance with the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In characterizing Mr. Wilson's request for the money spent "for all projects" as "vague," the City was implicitly requesting that Mr. Wilson frame his request with more precision which constitutes neither an attempt to subvert the intent of the Open Records Act nor a violation. On this issue, the Attorney General has expressly held:
[A] request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
94-ORD-14, p. 7. Accordingly, this office has consistently recognized:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61[.871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available.
92-ORD-1261, p. 3. As originally framed, Mr. Wilson's request for Item No. 6 did not identify the records with "reasonably particularity" so as to enable the City to locate and provide access to the records being sought.
2 KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority[.]"
3 The City obviously cannot produce for inspection and copying that which it does not have. 02-ORD-118, p. 3. 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. " KRS 61.870(2); 02-ORD-120, p. 2. As consistently recognized by this office, "a public agency cannot provide access to records that it does not have or which do not exist." 04-ORD-205, p. 4, citing 03-ORD-205, p. 3; 02-ORD-145; 01-ORD-36; 99-ORD-98; 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 duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the City did in this instance. 03-ORD-205, p. 3, citing 99-ORD-98. Our office is "not empowered to go beyond the written record to determine whether [City] employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 00-ORD-16, p. 5.
4 With respect to duplicative requests for records, this office has recognized that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. In support of this position, the Attorney General reasoned:
KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three or four times requires a level of "patience and long-suffering" that the legislature could not have intended. Citing OAG 77-151, p. 3.
Id. While the record does not contain sufficient evidence upon which to base a determination here, the City is not required to satisfy an identical request unless Mr. Wilson can explain the necessity of reproducing the records which have already been provided such as loss or destruction of the records.
5 In a letter dated January 7, 2005, Mr. Wilson rebuts the City's position that his appeal should be dismissed, requesting that the matter be "investigated and action taken." However, the Attorney General is not empowered to conduct such an investigation. Nor can this office impose penalties for violations of the Open Records Act as only the courts are vested with authority to take such action. KRS 61.882(5); See 99-ORD-121; 93-ORD-135; OAG 90-58; OAG 82-342; OAG 80-367; OAG 79-380. In 96-ORD-120, the Attorney General observed:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
Id., p. 3. See also 96-ORD-171; 96-ORD-142. In short, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statute. Accordingly, this office has consistently "refrain[ed] from opining on whether records were willfully withheld pursuant to KRS 61.882(5)." 99-ORD-121, p. 18, citing OAG 90-58, p. 6.
6 Item No. 4 of Mr. Wilson's second request is presumably a more specific version of Item No. 6 of his first request.
7 KRS 61.872 establishes guidelines for providing access to public records under the Open Records Act. In relevant part, KRS 61.872 provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In sum, the Open Records Act contemplates access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, assuming that the requester precisely describes the records and the records are readily available within the agency. 02-ORD-26, p. 5; 97-ORD-16. See 02-ORD-26, p. 6, for a discussion of the greater burden imposed upon requesters seeking to receive copies of records through the mail.
8 See 02-ORD-164, pp. 4-5, citing City of Louisville v. Brian L. Cullinan, Ky. App., No. 1998-Ca-001237 (8/13/99), relative to the duty of a public agency to produce records which are maintained by a private agency "at the instance of and as custodian on the [agency's] behalf . . . "