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 the Department of the Army, Nashville District, Corps of Engineers (Lake Cumberland), relative to the request of Larry Kunkle for specified information, violated the Kentucky Open Records Act. More specifically, the threshold issue presented is whether the Corps is a public agency within the meaning of KRS 61.870(1). Because the Corps is a federal agency to which the Open Records Act does not apply, the Corps was not statutorily obligated to honor Mr. Kunkle's request; the Corps therefore cannot be said to have violated the Act in failing to provide Mr. Kunkle with any existing records which are responsive to his request within three business days as otherwise required by KRS 61.880(1). Nevertheless, the Corps was in the process of compiling the requested information for Mr. Kunkle as of May 8, 2006, at which point the Corps agreed to provide Mr. Kunkle with a more complete response no later than May 12, 2006; any issues relative to records ultimately provided to Mr. Kunkle are consequently moot.
By letter directed to Craig S. Shoe, Resource Manager, on March 23, 2006, Mr. Kunkle to "submit written answers" 1 to the following questions:
. What was the actual amount of [f]ederal funds spent to improve ramps and parking areas at Old Fall Creek, Tate's Access, Camp Attrahunt, Ramsey Point, and Shinbone in the [F]all of 2003?
. What was the date these funds were available?
. What was the amount of funds diverted from these projects?
. What are the names of the persons that diverted these funds to other projects?
. What was the date these funds were diverted?
. What projects received these funds?
Please list the amount of funds for each project separately?
. What was the amount of [f]ederal funds spent on Old Fall Creek ramp after 2003?
In a letter dated March 28, 2006, Mr. Shoe advised Mr. Kunkle that he forwarded this request to the Nashville District Office since he does "not have access to all of the information" requested. On April 26, 2006, Mr. Shoe supplemented his initial response, observing that Mr. Kunkle's questions "were wide-ranging and the answers require input from several elements." At the time, the Corps was "still in the process of obtaining adequate answers to [his] inquiries" but expected to provide Mr. Kunkle "with the information shortly." Arguing that Mr. Shoe "has refused to provide information to questions in a timely manner as required by the Open Records Act, " Mr. Kunkle initiated this appeal by letter dated April 30, 2006.
Upon receiving notification of Mr. Kunkle's appeal from this office, William T. Hill, District Counsel, responded on behalf of the Corps. As correctly observed by Mr. Hill:
. . . KRS 61.870 defines a public agency subject to the provisions of this law as being a part of state, local, county, or city government, or any body created by state authority. The federal government is not a "public agency" as defined in the Open Records Act, and therefore is not subject to the Kentucky Attorney General's appeal process as provided for in KRS 61.880(2).
That being said, Mr. Hill further correctly asserts there "has been no denial of Mr. Kunkle's request." To the contrary, Mr. Kunkle was notified by letter on March 28, 2006, and by letter on April 26, 2006, that the Corps was "in the process of gathering the requested information. " Mr. Shoe, Lake Cumberland Resource Manager, "has informed the [District Office] that a response to Mr. Kunkle's request will be mailed no later than May 12, 2006."
Our analysis necessarily begins with the definition of the term "public agency" codified at KRS 61.870(1), pursuant to which:
"Public agency" means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school, district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinances, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
Records of agencies falling within the parameters of one or more of these definitional sections are subject to public inspection, unless one or more of the exceptions codified at KRS 61.878(1)(a)-(n) applies, pursuant to the mandatory terms of the state Open Records Act.
As evidenced by the express terms of KRS 61.870(1), the definition of a "public agency" does not encompass federal agencies such as the Corps. In 96-ORD-118, this office clarified that records in the custody or control of federal agencies are governed by the Freedom of Information Act "while the Open Records Act (KRS 61.870 to KRS 61.884) pertains to records in the custody or control of agencies of the state and local governments." Id., p. 1. 2 Based upon the evidence of record, this office must conclude the Corps is not properly characterized as a public agency for purposes of the Open Records Act; it logically follows that the Corps did not violate the Open Records Act in failing to respond within three business days to Mr. Kunkle's request.
Even assuming arguendo the Corps is a public agency, the outcome remains the same as the Corps has now provided Mr. Kunkle with answers to his questions. 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 recognized that when access to public records is denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. OAG 91-140. Absent evidence to the contrary, this office assumes that Mr. Kunkle has received copies of any existing records which are responsive to his request and/or written responses to his questions in accordance with the Corps' supplemental response; nothing more is required. To the contrary, the Corps has gone above and beyond in responding to the request at 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.
Footnotes
Footnotes
1 To clarify, public agencies are not required to honor requests for information as opposed to requests for existing public records; this office has long recognized that public agencies are not obligated to compile a list or create a record to satisfy an open records request. 04-ORD-090, p. 7.
2 Conversely, in 04-ORD-090, the Attorney General observed:
In Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. Contrary to Ms. Schwarz's assertion, therefore, public agencies in Kentucky such as the KSNPC are not governed by the "federal standard" to which she refers on appeal.
Id., p. 5.