Request By:
Russell Hailey
6510 Hollow Tree Road
Louisville, KY 40228Stanley Chauvin III
City Attorney
City of Hollow Creek
235 S. 5th Street
Louisville, KY 40202Lois Norris
City Clerk
City of Hollow Creek
6511 Downs Branch Road
Hollow Creek, KY 40228
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 Hollow Creek violated the Open Records Act in the disposition of Russell Hailey's November 21, 2006, request for various financial and operational records maintained by the city. For the reasons that follow, we find that although the city attempted to comply with the Act, its disposition of Mr. Hailey's request was procedurally and substantively deficient.
By letter dated November 29, 2006, Hollow Creek City Attorney L. Stanley Chauvin, III, responded to Mr. Hailey's request advising him that "due to the voluminous nature of [the] request, as well as the fact that [it arrived] during Thanksgiving holiday week," the city's final disposition of his request had been delayed. One day later, Mr. Hailey initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Hailey's appeal, Mr. Chauvin amplified on the city's position, explaining that "[t]he 'official response' by the city is almost complete and will be mailed to Mr. Hailey on or before Tuesday, December 12, 2006." Continuing, Mr. Chauvin observed:
Because of the nature of some of Mr. Hailey's requests, the size of the City of Hollow Creek and its unfamiliarity with responding to open records request, and the fact that the elected officials are in a state of transition, the City's response to Mr. Hailey's request has taken longer than I expected or anticipated.
He offered assurances that "all of the city officials involved in responding to the open records request are working diligently and in good faith to provide the information (or the fact of its nonexistence) that Mr. Hailey is seeking."
On December 14, 2006, this office received a copy of a letter dated December 12, 2006, and addressed to Mr. Hailey, representing the city's "official response" to his request. The city agreed to make available for his inspection, at a mutually agreed upon time, "[a]ll requested financial information in the city's possession" 1 consisting of:
Detailed Financial Reports for the Following Years: 2003, 2004, and 2005 to include: Journals (to include all receipts and expenses), Audit Trail, Funds Ledger (to include all receipts and expenses), and Periodic Audit (October 2006 only), Accounts payable file, Voucher Register, Purchase Order/Requisition reference and Tracking instruments.
The city also provided Mr. Hailey with the name and telephone number of the individual who, "upon submission and approval, pays the city's bills each month and generates a municipal order/warrant evidencing the payment of those bills," as well as the name and telephone number of the individual who prepares the city's annual audit.
The city agreed to make available for Mr. Hailey's inspection "[r]ecords pertaining to" his request for a "[l]ist of all city owned/leased vehicles . . . includ[ing] vehicle maintenance record and vehicle information file" and "[a]ll ordinance related materials" in response to his request for "[o]rdinances and code of ordinances/ composition index of ordinances. " Finally, the city provided him with the name and address of its official records custodian in response to his request for same.
The city was unable to honor three of Mr. Hailey's requests. Those requests, and the city's responses thereto, were as follows:
REQUEST # 5. Litigation File as it pertains to law suits against the city of Hollow Creek. This is to include working appears [sic] and files of the City Attorney.
RESPONSE: The City of Hollow Creek has one (1) pending lawsuit which was initiated by former Hollow Creek Police Officer, Ted Schlenker. The City is represented by Attorney, David Bowles of the law firm of Landrum & Shouse, LLP., 220 West Main Street, Suite 1900, Louisville, Kentucky, 40202, (402) 589-7616. The City of Hollow Creek has no working papers and the City Attorney has no file on this matter.
REQUEST # 6. List of Buildings/Office space the City owns/leases to include: Facilities Lease/ Rental Agreement and Asset/Equipment File for 2002, 2003, 2004, 2005 and 2006.
RESPONSE: The City of Hollow Creek owns no buildings and/or office space. The City currently rents an office located at 7504 Fegenbush Lane, Louisville, Kentucky, 40228, for $ 1,200.00 per month. There is no written lease on the property and the agreement is terminable at will. The City does not have a file specifically labeled Asset Equipment File.
REQUEST NO. # 7. Bid Files for 2003, 2004, 2005, and 2006.
RESPONSE: The City does not maintain files specifically labeled "Bid files" for the requested years. The City does have records relating to contracts for bids which primarily relate to sanitation contracts. The majority of contracts entered into by City of Hollow Creek (with the exception of Sanitation) , fall below the public bidding requirement as set out in KRS 424.260.
It is the city's responses to these requests, as well as the timing of its official response to Mr. Hailey's November 21 letter, that are problematic.
Procedural deficiencies and timely access
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request and produce the requested records or formally deny the request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of other services to the public.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. Although we are not prepared to say that the city failed to afford Mr. Hailey timely access to the records identified in his request, given the breadth of that request and the intervening holidays, we find that its initial response did not satisfy the requirements set forth at KRS 61.872(5).
As noted, the only exception to KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records . . . . If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6. Elaborating on this view, in 01-ORD-38 the Attorney General declared that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain , not a projected or speculative date, when the records will be available for inspection. " The city's original response 2 to Mr. Hailey's request was deficient insofar as it did not contain a detailed explanation of the cause for delay or state a date certain on which the records would be available for inspection. 3 Although this error was corrected in subsequent correspondence, we urge the city to bear these observations in mind in responding to future open records requests.
Substantive deficiencies and the propriety of the city's responses to requests 5, 6, and 7
Turning to the substantive issues on appeal, we find that the city's responses to requests 5, 6, and 7, although not violative of the Open Records Act, are problematic insofar as they are not entirely dispositive of those requests. With reference to the city's response to Mr. Hailey's request for "litigation file as it pertains to law suits against the city . . . includ[ing] working appea[l]s and files of the City Attorney," Mr. Chauvin advised that the city is represented in the only pending lawsuit by an attorney in the law firm of Landrum & Shouse, LLP, and that Mr. Chauvin "has no file on this matter." 4 Because "it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record, " City of Louisville v. Brian Cullinan , No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App.) 5 we believe it is incumbent on the city to direct its contract attorney to review the litigation file and produce for Mr. Hailey's inspection all nonexempt records contained therein.
In City of Louisville v. Brian Cullinan , above, the Kentucky Court of Appeals rejected the city's argument that documentation of legal expenses billed to the city by its contract attorneys were not public records because the city was not in possession of the items requested, and therefore not the custodian of the records. The court reasoned:
There is no doubt that the records requested were prepared, owned, and used at the instance of the City. The records are nothing more than the routine billing documents generated by a law firm in representation of a client. Here, they are essentially the City's documents . . . .
City of Louisville at 4. On this basis, the court concluded that "the law firm was holding the documents at the instance of and as custodian on the City's behalf, thus conforming to KRS 61.870(6), " Id ., and affirmed the circuit court's judgment ordering production of the records.
Numerous decisions of this office support the view that public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). For example, in 95-ORD-114 we held that a public hospital improperly denied access to a letter from the U.S. Department of Justice on the basis that the letter was not in the hospital's possession, but instead in the possession of the hospital's attorney, because the hospital failed to articulate any statutory basis for denial. Similarly, in 99-ORD-194 we held that a water district improperly postponed access to a merger agreement on the basis that the agreement was not in its possession, but instead in the possession of its attorney, holding that the fact that an agency's attorney may have possession of a public record does not negate the agency's duties under the Open Records Act. Finally, in 00-ORD-93 we held that a fire department's assertion that requested public records were not available for inspection because they were in the possession of its attorney did not constitute a sufficient legal basis for postponing the requester's access to the records. See also, 00-ORD-207 (city improperly denied request for access to settlement agreement on the basis that records of insurance carrier, and defense attorney hired by carrier, could not "be opened by a demand upon the city"). While we continue to ascribe to the view that there may be rare occasions when records identified in an open records request are not public records because they reside in the custody of a private agent, 6 we approach this question with greater caution after the court's decision in City of Louisville v. Brian Cullinan , above.
Regardless of where the pending litigation file is located, it is "prepared, owned, and used at the instance of the city," and is therefore "essentially the city's [file] . . . ." Cullinan at 4. Although the city's contract attorney holds it "as custodian on the city's behalf," id ., it is its nature and purpose that is determinative of its status as a public record. We therefore find that the city is obliged to review, or direct its contract attorney to review, the responsive file to determine if any nonexempt records, such as billing statements or pleadings filed with the court, reside in the file. If so, the city must produce these records for Mr. Hailey's inspection, and describe, in general terms, the records withheld and the basis for denial. This would include records protected from disclosure by the attorney client privilege, or that constitute work product, as long as all of the elements of these privileges are met. See Hahn v. University of Louisville, Ky. App., 80 S.W.3d 771 (2001); 02-ORD-161; 01-ORD-246.
With reference to Request 6, relating to facilities lease/ rental agreements and asset/equipment files for 2002, 2003, 2004, 2005, and 2006, and Request 7, relating to bid files for 2003, 2004, 2005, and 2006, we find that the city's official response was only partially dispositive. Mr. Chauvin indicates, with respect to the former, that the city "currently" rents an office, and owns no buildings, but does not indicate whether it rented or owned buildings in 2002, 2003, 2004, and 2005. He states that the city "does not have file specifically labeled Asset Equipment File," but does not state whether the city maintains asset and equipment inventories or other responsive records for 2002 through 2006. If it maintains any such facilities lease/ rental agreements/deed or inventories for these years, it is incumbent on the city to produce them for Mr. Hailey's inspection regardless of how or where they are filed. If it does not maintain any such records, it is incumbent on the city to affirmatively so state. See, e.g., 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms . . . . While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient" ).
By the same token, the city acknowledges the existence of "records relating to contacts for bids which primarily relate to sanitation contracts," noting that "[t]he majority of contracts entered into by the city . . . fall below the public bidding requirement as set out in KRS 424.260," but denied the existence of files "specifically labeled 'bid files' for the requested years." We assume the city is prepared to disclose bid records relating to sanitation contracts as well as any other bid records that may reside in its custody regardless of whether those records reside in files specifically denominated "bid files." If no other bid records exist for the requested years, the city is again obligated to affirmatively so state. Until it has done so, and otherwise acted in a manner consistent with this decision, the City of Hollow Creek's duties under the Open Records Act will not be fully discharged.
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 It is unclear whether the city honored Mr. Hailey's request in its entirety given its use of the limiting language "in the city's possession . . . ." If any portion of the request could not be honored, it is incumbent on the city to promptly so notify Mr. Hailey and provide an explanation for its inability to produce those records.
2 In view of potential delays in mailing, and the intervening holidays we are also not prepared to say that the city's original response was untimely.
3 Because Mr. Hailey resides in "the county in which the public records are located," he may be required to conduct an onsite inspection as a precondition to obtaining copies of the requested records. KRS 61.872(3)(b).
4 In our view, Mr. Hailey's request may be construed broadly enough to extend to litigation that has been concluded. If, after it confirms this construction of the request with Mr. Hailey, the city determines that other litigation files reside in its custody, or in the custody of other contract attorneys, it is incumbent on the city, or its contract attorneys, to review these files to ascertain whether any nonexempt records are located therein, in a manner consistent with this decision, and make these nonexempt records available for Mr. Hailey's inspection.
5 Although City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure (CR) 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion that a public agency cannot frustrate access to public records by allowing them to indefinitely reside in the custody of a private agent.
6 See, for example, 97-ORD-15 (University is not obligated to procure, and provide a copy of, signed consulting agreement between faculty member, acting in his private capacity, and private attorney, because possessor of record is not a public agency and agreement is not a public record) ; 99-ORD-202 (Finance Cabinet is not obligated to procure and provide records reflecting individual item costs on a renovation project, including invoices submitted by private subcontractor to private contractor, to accommodate open records request where Cabinet has elected not to demand production of documentation from private contractor because Cabinet is satisfied that available documentation is adequate as long as contractor performs the work in the contract for the bid amount and in a manner that satisfies the IFB specifications).