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 response of the Lexington-Fayette Urban County Airport Board to John D. McClune's request for records relating to air traffic control, air traffic controllers at the Blue Grass Airport, and the repaving and the re-location, re-lighting, and re-marking of the runways of the airport violated the Open Records Act.
Specifically, by letter dated September 15, 2006, Mr. McClune submitted the following request for certified copies of:
. All air traffic control policies and procedures in effect for the Blue Grass Airport in Lexington, Kentucky, on or about August 27, 2006.
. All documents regarding the number of air traffic controllers required in the tower cab at the time of the accident giving rise to the Comair Flight 5191 accident on or about August 27, 2006 at the Blue Grass Airport in Lexington, Kentucky.
. All emails, notes, documents, letters, memos, and related information referencing complaints, requests, concerns, or comments of air traffic controllers pertaining to the Blue Grass Airport in Lexington, Kentucky, on and before August 27, 2006.
. All complaints made about air traffic controllers to the Kentucky Blue Grass Airport.
. All safety audits, inspection reports, and safety assessments related to air traffic control at the Blue Grass Airport in Lexington, Kentucky, before August 27, 2006.
. All documents and information provided to the air traffic controllers on or before August 27, 2006, regarding the runway resurfacing and relocation markings, lighting and/or placards at the Blue Grass Airport in Lexington, Kentucky, on or about August 27, 2006.
. All documents, procedures, reports, memos, emails and related documents pertaining to the re-paving of runways, and the relocation, re-lighting and remarking of the runways.
By letter dated September 21, 2006, W. Thomas Halbleib, Jr., attorney for the Board, responded to Mr. McClune's request. Acknowledging receipt of the request on September 18, 2006, he advised:
Your letter suggests that you may be unaware that the Federal Aviation Administration (the "FAA") operates, staffs and maintains the air traffic control tower and is responsible for the air traffic controllers. The Board has no authority or responsibility with respect to any of the forgoing. Therefore, your request may be more appropriately addressed to the FAA.
Shortly thereafter, on September 25, 2006, Mr. McClune initiated the instant appeal. In his letter of appeal, he advised that his office had simultaneously sent an identical request to the FAA and that his office was well aware of responsibilities delegated to the FAA in staffing and operating the control tower and also aware of the responsibilities of a public airport, such as the Blue Grass Airport. He further argued, in relevant part:
If complaints were made to the airport about the air traffic controllers, or comments were made to the airport by air traffic controllers, we are entitled to that information. If the airport provided information to the air traffic controllers regarding the runway resurfacing and relocation of markings, lighting and/or placards at the Blue Grass Airport in Lexington, Kentucky, on or about August 27, 2006, we are entitled to the information. Clearly the airport has documents, procedures, reports, memos, emails, etc. regarding the re-paving of its runways, and the relocation, re-lighting and remarking of its runways. Notably, the response did not indicate that the documents and information did not exist, just that we "may" wish to obtain same from the FAA. This is not an appropriate objection or response. No claim of privilege or other exemption under the Open Records Act was cited by the Board. See Exhibit 2.
?
Of course, if there were no such documents or information provided or if no documents and things exist, the Lexington-Fayette Urban County Airport Board should so state.
(Emphasis in original.)
After receipt of notification of the appeal and copy of the letter of appeal, Mr. Halbleib provided this office with a response to the issues raised in the appeal. In his response, he explained, in relevant part:
Mr. McClune first cites his request for communications regarding complaints of air traffic controllers about the airport. The Airport Board maintains no public records responsive to this request. The air traffic controllers presumably understand that the appropriate recipient for such communications would be the FAA--the entity that pervasively regulates the airfield and operations thereon. Mr. McClune next cites his request for complaints made about air traffic controllers to the airport. Again, the Airport Board maintains no public records responsive to this request. Those most likely to complain about air traffic controllers are employed and controlled by the FAA. Mr. McClune next cites his request for documents and information provided to the air controllers regarding certain Airport construction activities. Again, the Airport Board maintains no public records responsive to this request.
Finally, Mr. McClune cites his request for "[a]ll documents, procedures, reports, memos, emails, and related documents pertaining to the re-paving of runways, and the relocation, relighting and re-marking of runways. " Read in the context of the balance of his letter, it appeared that Mr. McClune's request was focused upon information available to the air traffic controllers on August 27, 2006, records available only from the FAA.
For this reason, we suggested that his request might be more appropriately addressed to the FAA. Mr. McClune's Appeal has made clear that his request was not entirely misdirected and that he intended to submit at least part of it to the Board. For your (and his) information the Airport Board has no public records responsive to any of his requests. The Airport Board does not maintain "certified copies" of its public records and has no obligation under the Act to create them for Mr. McClune.
To the extent that Mr. McClune would submit another request that does not request certified copies of the covered public records, he should anticipate a response indicating that the Airport Board maintains no public record responsive to the first six categories of records stated in his prior request. Regarding the seventh category, we suggest that Mr. McClune consider a more precise description of the public records he seeks. His previous request is not limited by reference to a time period, a specific runway, a specific paving or other project, specific lights, specific markings or otherwise. As presented, Mr. McClune's seventh request would require that the Airport Board review extensive public records spanning sixty years to identify those that "pertain[] to the re-paving of runways, and the relocation, re-lighting, and re-marking of the runways, " some of which may no longer exist. . . .
(Emphasis in original.)
By letter dated October 20, 2006, Mr. McClune provided this office with a reply to the Board's supplemental response. In his reply, he countered:
Interestingly, Mr. Halbleib suggests the Board has "no public records responsive to any of [my] requests." Page 2, P4 (emphasis in original). However, in the very next paragraph, Mr. Halbleib then indicates that records apparently exist in response to my request for all documents, procedures, reports, memos, etc. regarding the re-paving of runways, and the relocations, relighting and remarking of runways. " Page 2, P5.
Mr. Halbleib's complaint to that request is that his office cannot "certify" copies, that it would require the examination of some 60 years of documents, and the request is not limited to a specific runway, etc. (There are only two active runways, 4-22 and 8-26.) Mr. Halbleib makes a "time frame" complaint even though he admits in the prior paragraph that he understood that the request was "focused upon information available . . . on August 27, 2006" when read in the context of the Open Records Act request. Page 2, P3. Clearly, the request sought information revealing the extent and type of project existing on the date of the accident for the "re-paving of runways, and the relocation, relighting and remarking of runways. "
It is unclear from the record before us whether the Board does have copies of some of the requested records, but claims that the FAA is the "appropriate recipient" of the requested records and the request must be made to the FAA or the Board does not have copies of the requested records in its possession.
If the Board has copies of records responsive to the request in its possession, but takes the position that the request must be made to the FAA as the "official custodian" of those records, its position is misplaced. In 98-ORD-100, this office rejected the argument that a public agency which prepares, owns, uses, possesses, or retains a public record is relieved of its clearly established duties under the Open Records Act simply because the record is in the custody of another agency from which it can more appropriately be obtained. There, the Lexington-Fayette Urban County Government asserted that it was the "casual possessor" of records in another agency's custody, and not the "official custodian, " and that it therefore could not honor a request for those records. On the basis of KRS 61.870(2) and a series of open records decisions, we held that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card); and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). The weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded. An agency cannot avoid its duties under the Open Records Law by deferring to another agency, but must instead determine, within three working days of receipt of the request for records in its custody and control, whether to honor the request, and notify the person making the request of its decision. KRS 61.880(1) ; OAG 90-71, OAG 91-21, 96-ORD-7, 98-ORD-17, and 98-ORD-100.
The Board maintained in its supplemental response provided to this office that it has no public records responsive to the first six categories of Mr. McClune's request. If this is the case, the Board discharged its statutory duty by so notifying the requester and furnishing him with the name and location of the official custodian of the record, the FAA. KRS 61.872(4). Yet the Board indicates in its supplemental response, that it might have records responsive to the seventh category of the request if Mr. McClune would provide a more precise description of the records he seeks. In his reply, Mr. McClune states that "the request sought information revealing the extent and type of project existing on the date of the accident for the 're-paving of runways, and the relocation, relighting and remarking of runways. '" We believe that this description is sufficiently descriptive to enable the Board to identify and determine if records responsive to Mr. McClune's request exist. Accordingly, the Board must provide him with copies of any records in its custody which are responsive to his request unless it can meet its burden of proof by articulating a basis for denying access in terms of the exceptions set forth at KRS 61.878(1)(a) through (n). Until the Board so responds, it stands in violation of the Open Records Act. If the Board does not have all or some of the requested records, it has an obligation to affirmatively so advise Mr. McClune. 99-ORD-98; 99-ORD-150.
Finally, we address Mr. McClune's request for a certified copy of the requested records. In 03-ORD-207, we denied such a request, stating:
It is not, however, incumbent on the [public agency] to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act.
03-ORD-207, p. 3. Therefore, we find the Board is not required to provide a certified copy of the requested records under the Open Records Act and, thus, did not violate the Act in this regard.
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.