Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Kingsley violated the Open Records Act in the disposition of Teri and Keith Zipper's open records requests for copies of the "minutes from the February 3, 2005 City of Kingsley monthly Commissioners' meeting and the audited budget document for the City of Kingsley for the current fiscal year. " For the reasons that follow, we find that the agency's disposition of the Zippers' request was procedurally deficient but substantively correct.
In their letter of appeal to this office, dated March 29, 2005, Mr. and Ms. Zipper stated the City failed to respond to their request within three business days from the receipt of their request. They stated that on March 4, 2005, the request was mailed to the City requesting a copy of the minutes of the City's March 3, 2005 meeting; that on March 15, 2005, they attempted phone contact with the City Clerk and left a message on the Clerk's voice mail. They stated their request for a call back was not honored. On March 16, 2005, they sent an e-mail to the city's counsel of record, who responded by e-mail on March 21, 2005, advising:
I have been out of state since March 12, 2005. This is the first time we became aware of your concern. Where (to what address) did you direct your written request?
In response to this letter from the City's counsel, the Zippers advised him of the address to which the request was mailed and of the voice mail to the City Clerk and informed him they were still waiting for a response. On March 18, 2005, Teri Zipper sent a request, addressed to the City via certified mail, again asking for a copy of the minutes of the City's February 3, 2005 meeting and made an additional request for the audited budget document for the City of Kingsley for the current fiscal year.
By letter dated March 22, 2005, the City's counsel responded, advising:
Pursuant to your request of March 4, 2005, enclosed you will find the Kingsley City Meeting Minutes from the February 2005 meeting.
In their letter of appeal, dated March 29, 2005, the Zippers assert they had yet to receive a response to their March 16, 2005 request for a copy of the audited budget document.
After receipt of notification of the appeal and copy of the letter of appeal, Stephen C. Emery, counsel for the City, by letter dated April 6, 2005, advised that the requested minutes and budget document had been provided to the Zippers. Addressing issues raised in the appeal, Mr. Emery explained:
The first request made (the one made by Keith A. Zipper by way of letter dated March 4, 2005) was for "minutes from the February 3, 2005 City of Kingsley monthly Commissioners'/Mayor meeting." See Exhibit A, attached hereto. Mr. Zipper was, on March 22, 2005, informed by undersigned counsel that his request was being fulfilled and was also informed that the requested record was not previously available. See letter to your office dated 29 March 2005, at p. 2. (Exhibit B, attached hereto.)
Mr. Zipper complained that the minutes requested were "technically supposed to be signed and official after the 3 March 2005 meeting." See letter to your office dated 29 March 2005, at pp. 2-3. (Exhibit B, attached hereto.) That complaint is not material to the matter at hand, because prior to fulfillment of Mr. Zipper's request on, or about, March 22, 2005, no minutes of the February 3, 2005 meeting existed. Until that time the only thing that existed were preliminary drafts of the minutes. Mr. Zipper was provided a copy of the official minutes at the first available opportunity. See OAG 89-93. (Inspection of preliminary drafts regarding preparation of official minutes may be denied pursuant KRS 61.878(1)[i].
Before the minutes were prepared, there was simply no record of the minutes of the February 3, 2005 meeting to provide to Mr. Zipper. "[T]he city could not provide access to records which it does not have." 94-ORD-5, citing to 93-ORD-95.
The second request made (the one made by Teri A. Zipper by way of letter dated March 18, 2005) was for "minutes from the February 3, 2005 City of Kingsley monthly Commissioners'/Mayor meeting and the audited budget document for the City of Kingsley for the current fiscal year. " See Exhibit C, attached hereto.)
Again, this request was made before the minutes existed; therefore, there was simply no record of the minutes of the February 3, 2005 meeting to provide to Mrs. Zipper at the time she made her request. Just as previously stated concerning Mr. Zipper's request for the same, these minutes were provided to her on, or about, March 22, 2005, at the first available opportunity.
This request from Mrs. Zipper was picked up in the city's mailbox by the City Treasurer (who does not have possession, custody, or control of the requested record) and was received by the City Clerk on March 28, 2005. Unfortunately, the City Clerk did not realize that the Mayor had been able to locate the requested audited budget until several days after she received this request. However, once she became aware that the requested record of the "audited budget document" had been located, an appropriate response was mailed out on April 5, 2005.
From a procedural standpoint, the City's disposition of the Zippers' requests was procedurally deficient. The procedures governing agency response to open records requests are set forth at KRS 61.880(1), which 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
To the extent that the City failed to issue a written response to the requests within three business days, after their receipt, including a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld, the agency violated KRS 61.880(1). The fact that the City's counsel or the official custodian of the requested records, was out of the state or did not receive the request until his return, did not relieve the City of its duty to issue a timely, written response. 98-ORD-161; 00-ORD-226. The three-day statutory response time is not tolled by the absence of the agency's records custodian. It is incumbent on the City to make proper provision for the uninterrupted processing of open records requests.
In 01-ORD-140, this office addressed the issue of a public agency having an official custodian of public records and, in the custodian's absence, the appointment of an acting custodian to respond to open records requests. At pages 5 and 6 of that decision, we explained:
. . . the Attorney General has recognized that in the event the official custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; see also, 96-ORD-185, p. 3 (holding that the Open Records Act "presumes the appointment of a records custodian 'who is responsible for the maintenance, care, and keeping of public records . . .,' KRS 61.870(5), as well as the timely processing of open records requests [(KRS 61.880(1)], and in his absence, the appointment of an alternate to fulfill his duties"). The three day statutory response time is not tolled by the absence of the agency's records custodian. 98-ORD-161, p. 3; see also, 00-ORD-226. It is incumbent on the [public agency] , as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests. Any other interpretation of the provisions of the Open Records Law is, in our view, "clearly inconsistent with the natural and harmonious reading of KRS 61.870 [et seq.] considering the overall purpose of the . . . Law," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), as well as the recognition that "the value of information is partly a function of time." Fiduccia, at 1041.
The failure to have an individual available to timely process open records requests was inconsistent with the requirements of the Open Records Act. This would include providing a written response advising Mr. and Ms. Zipper that the minutes of the February 3, 2005 meeting would not be subject to disclosure until they were officially approved by the public agency. The same would apply to the request for the audited budget document. If, for some reason, an adequate search could not be conducted in counsel's absence, or the requested document could not be located, the City should have promptly notified Mr. and Ms. Zipper by written response within three business days after receipt of the request and provided them with an explanation for the delay and the earliest date they might expect to receive a substantive response to their request. KRS 61.872(5); KRS 61.880(1).
We find no error in that portion of the City's responses that, at the time of Mr. and Ms. Zipper's requests for a copy of the minutes of the February 3, 2005 meeting, there were no official minutes, as they had yet to be prepared and had not been officially approved by the City. 03-ORD-033 and 93-ORD-67.
[T]he Attorney General has stated that "both the Open Meetings Statute, KRS 61.805 to 61.850, and the Open Records Statute, KRS 61.870 to 61.884, mandate public access to the minutes of a public body." OAG 83-139, p. 2. Nevertheless, we have opined:
OAG 80-421, p. 3. This is because written and shorthand notes:
made in a meeting for the purpose of preparing the minutes are only preliminary records and may therefore be withheld from public inspection. Actions taken by a public agency or board must be recorded in the minutes and the minutes will become official after they have been approved at the next meeting of the Board. The Board members, of course, can challenge the secretary's draft of the minutes of the meeting and it is for the majority of the Board to decide whether to accept the draft and make if official, or order a revision.
OAG 79-333, p. 1, 2.
98-ORD-36, p. 3, 4. However, as noted above, the City violated KRS 61.880(1) in failing to advise the Zippers of the status of the February 3, 2005 meeting minutes in writing and the basis for withholding the document within three business days after receipt of each request. Of course, once the minutes are approved by the City, they must be made available for inspection and copying.
Finally, in a response to the City's supplemental response to this office, Mr. and Ms. Zipper stated that they had received a letter from the Kingsley City Clerk on April 6, 2005 advising that the requested audited budget document would be available for inspection on April 8, 2005. 40 KAR 1:030, Section 6, provides: "If the 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." Accordingly, since Mr. and Ms. Zipper will be or have been provided access to the records they requested, the records access issue raised in their appeal is moot and no decision will be rendered as to this issue.
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.