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 Muldraugh violated the Open Records Act in the disposition of Stephen Leeds' February 14, 2005, requests for the city's "2004 audited combined financial statement and other financial information," and the "fiscal year . . . 2005 budget and all documentation supporting financial figures." For the reasons that follow, we affirm the city's disposition of Mr. Leeds' requests and find that any errors associated with its response were inadvertent, rather than intentional, and have since been corrected.
In a response issued on February 16, 2005, Muldraugh City Clerk Caroline J. Cline notified Mr. Leeds that the city's "audited combined financial statement for fiscal year ending 2004 . . . has not been completed," that the "expected completion date for that audit is May 1, 2005," and that a copy of the audit would thereafter be available for public inspection. In a separate response, Ms. Cline provided Mr. Leeds with a copy of Ordinance No. 231, the budget for fiscal year 2003-2004, and supporting documentation. Dissatisfied with the city's responses to his requests, Mr. Leeds initiated this appeal, questioning the city's failure to produce the FY 2005 budget and supporting documentation, per his request, and the city's failure to comply with the statutory requirements for submission of the mayor's budget message and a completed audit.
In supplemental correspondence directed to this office following commencement of Mr. Leeds' appeal, the city elaborated on its position relative to the disposition of his requests. Acknowledging the error in furnishing Mr. Leeds with Ordinance No. 231, the budget for FY 2003-2004, Ms. Cline indicated that she would immediately provide him with Ordinance No. 249, the budget for FY 2004-2005. Responding to his criticisms relative to completion of the city's FY 2004 audit, she explained that the company retained to conduct the audit had experienced staffing problems and was unable to finalize the audit before May 1, 2005, but advised that Muldraugh filed for an extension of time on submission of the audit with the Governor's Office of Local Development, per that office's instruction. Finally, Ms. Cline described the measures taken to insure compliance with KRS 91A.030(7), and produced the minutes of those meetings at which the city's statutory obligations were discharged. Having produced those records which were responsive to Mr. Leeds' specific requests, as well as those which were, in its view, responsive to his nonspecific requests, and having offered a plausible explanation for its inability to produce the remaining specifically requested records, the City of Muldraugh cannot be said to have violated the Open Records Act in the disposition of those requests.
In promptly responding to Mr. Leeds' request for "fiscal year 2005 budget and all documentation supporting financial figures," the city originally produced the wrong budget ordinance. That error was not brought to the city's attention at the time and was corrected upon receipt of this office's notification of appeal. No further discussion of this issue is warranted. The city also produced a breakdown of budget totals for FY 2005 which included detailed anticipated revenues and expenditures and the Mayor's budget message. Given the nonspecificity of Mr. Leed's request for "all documentation supporting financial figures," we find that the Open Records Act required no more. Further, we find that his complaint concerning the city's implementation of KRS 91A.030(7) cannot be adjudicated in an open records appeal. Because our analysis in an open records appeal is restricted to a determination of "whether the agency violated provisions of KRS 61.870 to 61.884," we do not address the alleged ambiguities or deficiencies in the records produced. Allegations of improprieties in the discharge of official functions cannot be adjudicated in an open records appeal, but may, upon sufficient evidence, be presented to the courts. The city properly discharged its duty under the Open Records Act in responding to this portion of Mr. Leeds' request by producing all existing public records.
With reference to Mr. Leeds' request for the city's FY 2004 audit, Ms. Cline advised that although not currently available the audit would be completed and available after May 1, 2005. She subsequently explained that the company conducting the audit was unable to meet the anticipated deadline due to staffing problems, and that the city had obtained an extension per the instruction of the Governor's Office of Local Development. Analyzing a similar situation involving financial records of the City of Blackey, in 04-ORD-191 the Attorney General observed:
97-ORD-116, p. 1, 2. Thus, in 94-ORD-140, we affirmed the Ohio County Sheriff's Department's denial of a request for investigative records on the basis the records did not exist when the sheriff explained that his office did not conduct the investigation. See also, 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by University's regulations); 98-ORD-23 (Department for Libraries and Archives explains that certification documents for agency compliance with records management policies do not exist because Department has no formal certification program due to limited fiscal and staff resources.) Conversely, in 97-ORD-103, 97-ORD-116, and 97-ORD-146, we held that because the public agencies failed to offer even a minimal explanation for the nonexistence of records which were apparently required by law, we could not determine if the agencies met their statutory burden of proof under KRS 61.880(2)(c).
This appeal is more closely akin to 94-ORD-140, 97-ORD-17, 98-ORD-23, and 04-ORD-191. In the latter decision, the Attorney General noted that the City of Blackey acknowledged its noncompliance with the requirements of KRS 91A.040(3) and described the efforts underway to insure compliance. Here, as in the cited decisions, the City of Muldraugh offers a plausible explanation for its inability to produce the FY 2004 audit. As noted above, this is not the appropriate forum for resolution of non-open records issues, including issues pertaining to compliance with KRS 91A.030. Currently, no record exists that is responsive to this portion of Mr. Leeds' request. All other responsive records have been produced. We therefore find no error in the City of Muldraugh's response to his requests.
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.
Distributed to:
Stephen Leedsc/o Economy Suite Motel230 North Dixie Hwy.Muldraugh, KY 40159
Caroline J. ClineCity Clerk/TreasurerCity of Muldraugh120 South Main StreetP.O. Box 395Muldraugh, KY 40155-0395
Danny J. Tate, MayorCity of Muldraugh120 S. Main StreetP.O. Box 395Muldraugh, KY 40155
Michael Pike, City AttorneyCity of Muldraugh550 West Lincoln TrailRadcliff, KY 40160