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 actions of the City of Douglass Hills relative to Paul P. Borden's request for certain of the City's records violated the Open Records Act. For the reasons that follow, we conclude, that with the exception of a procedural violation, the City's actions were in substantial compliance with the Act.
By letter dated July 20, 2007, Mr. Borden submitted an open records request to inspect the following documents:
1. All accounting records and reports produced with the city's accounting software or presently resident on the City's hardware, from July 1, 2005 to the present date, for the group or organization generally referred to by the Mayor and Members of the City Council as the "Douglass Hills Swim Team", or the "Douglass Hills Swim & Dive Team".
2. The most recent bank statement or other account statement with supporting documentation for every bank and other financial institution account where the account owner is identified by use of the City of Douglass Hills' Federal identification number
3. All documents pertaining to the establishment and maintenance of Douglass Hills Business Checking Account Number 1598090 at Stock Yards Bank, and all bank statements, accounting records, reports and supporting documentation prepared by or in the possession of the city or its officers, employees, or agents on this account for calendar years 2005, 2006 and 2007.
4. All 1099-SF and OL-3 forms with supporting documentation, that bears the city's Federal identification number, and have been prepared by or are the possession of the city or its officers, employees, or agents, and have been filed with the Louisville Metro Revenue Commission for tax years 2005 and 2006.
5. All documents filed with any federal, state or local governmental entity dated prior to July 6, 2007 to change the Payer Name and Payer Federal identification number on IRS Forms 1099 MISC issued by the city to recipients with last names: Goodin, Goff, Neubauer, Heuke, Hogan, Fetter-Witt, and Hart; for tax year 2006.
By letter dated July 26, 2007, Mr. Borden initiated the instant appeal, indicating that as, of that date, he had received no response from the City.
After receipt of notification of the appeal, Sherl Fetter, Mayor, City of Douglass Hills, provided this office with a response to the issues raised in the appeal. In his response, Mayor Fetter advised:
On Friday, July 20, 2007, Paul Borden, made a request for numerous documents dated in 2005, 2006, and 2007. The following week our City Clerk was out of the office due to illness and did not return until July 30, 2007.
During the week the City Clerk was out of the office our City Treasurer made a telephone call to Mr. Borden explaining that she could not comply with the request as she was newly hired and did not know where to find all of the information he needed to see. She asked that the response be allowed to be made upon the return of the City Clerk. Mr. Borden advised her that such a request would need to be made by the Mayor. I then called Mr. Borden and advised that we would comply with his request as soon as the Clerk returned to the office and the documents were compiled.
Mr. Borden has been advised that the materials are available to him. See attached letter dated August 1, 2007.
In his August 1, 2007, letter, Mayor Fetter responded to Mr. Borden's numbered requests as follows:
Paragraph 1). I know of no records or reports concerning the Douglass Hills Swim Team that are maintained on the City's computer system. The Douglass Hills Swim Team has its own board members and handle their own financial accounting system.
Paragraph 2). The City will furnish you with all the recent bank statements on accounts maintained by the City.
Paragraph 3). The City does not have an account at Stock Yards Bank and never has as far as I can determine.
Paragraph 4). I do not find any indication that 1099-SF and OL-3 forms were ever filed.
Paragraph 5). It is my understanding that the Swim Team is in the process of applying for 501(c)(3) status allowing them to obtain their own TIN which is needed for their fundraising efforts. In the past the City, as a courtesy prepared 1099-MISC forms for the amounts paid to the coaches during the summer.
We are asked to determine whether the actions of the City in response to Mr. Borden's requests violated the Open Records Act. For the reasons that follow, we conclude, that with the exception of a procedural violation, the City's actions were in substantial compliance with the Act.
KRS 61.880 sets forth the procedural guidelines for an agency response to an open records request. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three business days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond within 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 notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5).
This office has also previously held that the press of business or the absence of the official custodian does not justify an untimely delay in providing public records. 96-ORD-238. A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records. 96-ORD-54.
In 96-ORD-54, addressing the issue of the custodian of records being away on vacation, this office stated:
A public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. If the custodian goes on vacation, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian.
To the extent the City postponed the timely inspection of public records due to the City Clerk's illness, its actions constituted a procedural violation of the Open Records Act. However, this violation was mitigated by the City's effort to advise Mr. Borden as to the reason for the delay and its prompt response upon the City Clerk's return to work.
Addressing first the City's responses to numbered paragraph requests 1, 3, and 4, the City advised that it had no records concerning the Douglass Swim Team maintained on the City's computer system; that the City did not have an account at Stock Yards Bank; and that it found no indication that 1099-SF and OL-3 forms were ever filed with Louisville Metro Revenue Commission. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The City discharged its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
In response to numbered paragraph request 2, the City advised Mr. Borden that it would make available for his inspection all recent bank statements or accounts maintained by the City. 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." Accordingly, since records responsive to Mr. Borden's numbered paragraph request 2 have been or will be made available for his inspection, the issue as to access to these records is moot and no decision will be rendered in this regard. 06-ORD-253.
It is unclear from the City's response to numbered paragraph request 5, whether the City maintains the requested 1099-MISC forms for the amounts paid to the named individuals in request numbered paragraph 5. If it does, they may be exempt from disclosure. For example, KRS 131.190(1), incorporated into the Open Records Act by KRS 61.878(1)(l), prohibits the release of certain tax records or KRS 61.878(1)(a), which prohibits the disclosure of public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. If such is the case, the City should so advise Mr. Borden, and invoke one of the applicable exceptions, and explain its application to the records withheld.
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.
Paul P. Borden
Sherl Fetter, MayorCity of Douglass HillsP. O. Box 43284Louisville, KY 40253-0284
Genon G. HensleyCity Attorney11921 Berry Hill RoadLouisville, KY 40243