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 Lancaster violated the Kentucky Open Records Act in denying the clarified request of John A. Nelson, managing editor of The Advocate Messenger, for copies of "any documents (agreements, checks, copies of checks, canceled checks, check stubs, etc.) which state the 'mutually agreed upon amount' referred to in the 'Settlement and Release Agreement'" that the City provided to Mr. Nelson in response to his initial request. Alternatively, Mr. Nelson requested copies of "any documents that were referred to or incorporated into the settlement agreement which reflect the amount paid or to be paid." In response, A. Stuart Bennett, counsel for the City in the matter, advised Mr. Nelson that he does not have in his possession any documents which are responsive to the subject request without further explanation. It is the decision of this office that the City's response is both procedurally deficient and contrary to governing precedent.
By letter dated January 7, 2005, Mr. Nelson initiated this appeal. As observed by Mr. Nelson:
The Advocate-Messenger has for the second time requested in writing documents related to the settlement of a lawsuit between the City of Lancaster and a former employee, Deborah Carter. The first request was met after an appeal to your office, but the document provided did not contain the information being sought. So, a new request detailing the specific information of interest was sent to the attorney representing the city in the matter, Mr. A. Stuart Bennett. A copy of that request was sent to Lancaster Mayor Billy Moss.
Citing 00-ORD-207, Mr. Nelson correctly argues that the City is "not relieved of the responsibility to produce the record" simply because it is not in possession of the record. In addition, "such records in the possession of an insurance company facilitating the settlement remain the city's records, even though the company made the direct payment." Although The Advocate Messenger does not know whether an insurance company is involved in this settlement, Mr. Nelson knows "the requested records exist, because they are referred to in the settlement agreement. " Relying upon 04-ORD-242, Mr. Nelson also notes that an agency must conduct a reasonable search for the records requested, and "'document what efforts were made to locate the requested records, or offer some explanation for the nonexistence of the records.'" It is the position of The Advocate Messenger that the requested records "are clearly public records and that it is incumbent upon the city or its agent to make them available." We agree.
Upon receiving notification of Mr. Nelson's appeal from this office, Mr. Bennett responded on behalf of the City. Reiterating that he does not possess, and "therefore cannot produce" any responsive records, Mr. Bennett recommends "that Mr. Nelson direct his efforts elsewhere." While the City obviously cannot produce for inspection or copying records which it does not have or which do not exist, 03-ORD-205, p. 3, the City did not fulfill its obligation with this cursory response. In failing to advise Mr. Nelson to whom his request should be directed as mandated by KRS 61.872(4), 1 the City committed a procedural violation of the Open Records Act. As long recognized by the Attorney General, 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 record request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5. To avoid future violations, the City should be guided by this principle in responding to requests submitted pursuant to the Open Records Act.
Turning to the substantive issue presented, the City has expressly denied neither the existence nor the accessibility of the records requested, relying instead upon its lack of possession. However, the fact that Mr. Bennett may not personally maintain records which are responsive to Mr. Nelson's request, or an unidentified private entity has custody of such records at the request of the City, whichever the case may be, does not relieve the City of its statutory duty to produce such records. To the contrary, this office has recognized that "it is the nature and purpose of a document, not the place where it is kept," that confirms its status as a public record in rejecting the argument that a city could not compel its insurance carrier to disclose a settlement agreement which the carrier was holding "at the instance of and as custodian on the city's behalf." 00-ORD-207, p. 5. In our view, the reasoning of 00-ORD-207, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Accordingly, the same outcome follows. Although the City ultimately complied with the Open Records Act relative to Mr. Nelson's initial request by furnishing him with a copy of the requested settlement agreement, the City violated the Open Records Act in denying Mr. Nelson's revised request for access to records containing the "mutually agreed upon amount referred to in the Settlement and Release Agreement," the existence of which the City has not denied, merely because the City does not have actual possession of the requested records. To remedy this error, the City must provide Mr. Nelson with copies of any responsive records upon receipt of this decision.
A party aggrieved by this decision may appeal it by initiating an action 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.
John A. NelsonManaging Editor The Advocate Messenger330 S. FourthP.O. Box 149Danville, KY 40423-0149
Mayor Billy Carter MossCity of Lancaster101 Stanford StreetLancaster, KY 40444
James S. SandersCity AttorneyCity of Lancaster100 Paulding StreetP.O. Box 571Lancaster, KY 40444
A. Stuart BennettJackson Kelly PLLC175 East Main StreetP.O. Box 2150Lexington, KY 40588-9945
Footnotes
Footnotes
1 KRS 61.872(4) provides:
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.
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