Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kenton County Public Library did not violate the Open Records Act in the disposition of Rod Ratliff's requests 1 for records relating to two private subcontractors to Morel Construction Company, the general contractor on a public construction project at the William E. Durr Branch Library. On behalf of the Kenton County Public Library, Director Wayne Onkst denied Mr. Ratliff's requests, asserting that the requested records were not prepared by, owned, used, in the possession of, or retained by the Library, and therefore did not qualify as public records within the meaning of KRS 61.870(2). 2 Given this fact, Mr. Onkst continued, the Library could not produce for inspection records which were not now, nor had ever been, in its possession or custody.
It is the decision of this office that 99-ORD-202, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. Here, as in 99-ORD-202, we find that although records of a subcontractor or a contractor under contract with a public agency "are records in which the public has a legitimate interest" insofar as "[a]mounts paid from public coffers are perhaps uniquely of public concern...," we are not empowered to declare, in the context of an open records appeal, that an agency's "failure to require that records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " 99-ORD-202, p.2. Because "Kentucky's open records law applies only to records which are in existence, and in the possession or control of a public agency, " and the Kenton County Public Library has elected not to take possession of, and exercises no control over the requested records, "satisfied that the available documentation is adequate so long as the contractor performs the work in the contract for the bid amount and in a manner that satisfies the [contractual] specifications," we hold that the Library properly denied Mr. Ratliff's requests on the basis that it could not produce for inspection nonpublic records that were not in its custody or control. 3
Having so concluded, we nevertheless note that Mr. Ratliff is not without recourse. The Kenton County Public Library notified him, albeit belatedly, 4 that he might obtain the requested records through the Department of Labor, where a prevailing wage investigation has been, or is, being conducted. Mr. Ratliff may wish to pursue his records access issue through that avenue. Moreover, it is unclear whether Mr. Ratliff was ever afforded access to bid documents on the project which he expressly requested on June 13 and June 15, 2006. If the Library has not yet honored this portion of his request, or has otherwise taken no action, we find that the Library must forthwith produce these public records for his inspection.
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 Mr. Ratliff submitted a series of requests over a period of time extending from June 13, 2006, to August 17, 2006.
2 KRS 61.870(2) defines the term "public record" as "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. "
3 At page 5 of 99-ORD-202, the Attorney General admonished, "This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " In an unpublished opinion issued earlier that year, the Kentucky Court of Appeals determined that routine billing documents generated by a private law firm in the representation of the City of Louisville, and maintained by the law firm, were held "at the instance of and as custodian on the City's behalf," and that "[i]n the end, it is the nature and purpose of the document, not to place where it is kept, that determines its status as a public record. " City of Louisville v. Brian L. Cullinan, No. 1998-CA-001237 MR (Ky.App. August 1999). In the appeal before us, there is no evidence that the requested records were secreted away on private premises, nor is there any authority cited for the proposition that the contractor was legally obligated to provide the Library with itemized documentation relating to payroll expenditures. The relationship between the Library and the subcontractors is simply too attenuated to require us to apply the holding in Cullinan, above.
4 We disagree with the Library's interpretation of its obligations under KRS 61.872(4). Although it is unclear when the prevailing wage investigation was undertaken by the Department of Labor, we believe it was incumbent upon the Library to furnish Mr. Ratliff with the name and location of the official custodian of the Department's records as soon as it learned that the records might be available through the Department.