Request By:
Leonard Wilson
Casey Puckett
B. D. Wilson, Jr.
Kevin C. Cockrell
Jim McCarty
Ed English
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Montgomery County Ethics Board violated the Open Records Act in the disposition of Leonard Wilson's January 7, and January 17, 2008, requests for copies of the minutes of meetings at which the last two complaints filed with the Board were discussed and "the documentation . . . showing why the Mt. Sterling Advocate didn't have a reporter at the two meetings." Having received no written response to his requests, Mr. Wilson initiated this open records appeal acknowledging in his letter of appeal that on January 19, 2008, the Board mailed him the minutes of the meetings at which the last two complaints filed with the Board were discussed. For the reasons that follow, we find that the Board's disposition of Mr. Wilson's request violated KRS 61.880(1) of the Act.
In a letter directed to this office following commencement of Mr. Wilson's appeal, Montgomery County Fiscal Court Administrative Assistant Casey Puckett explained that although she is not the custodian of records for the Ethics Board, Mr. Wilson placed his request on her desk when she was not in her office. She expressed the view that the request "should have been sent to the Chairman or Secretary of the Ethics Board," but, because she was uncertain how to proceed, "went to work immediately to try to get the information to Mr. Wilson."
Continuing, Ms. Puckett observed:
I phoned Jim McCarty, Chairman of the Code of Ethics Board, and asked him to send me a copy of the minutes from the two meetings in question. Mr. McCarty replied that he would talk to the Secretary of the Board and have him e-mail the minutes to me. While on the phone with Mr. McCarty, I also asked him whether or not he had informed the press about the two meetings in question. His response was that he had told Kirby Haskins, a reporter for the Mt. Sterling Advocate , about the October meeting, but he couldn't remember if he'd informed him of the December meeting.
Ms. Puckett subsequently learned that Mr. Haskins had not been notified of either meeting, but advised him that she would remind the Board to send written notification of Board meetings in the future. 1
Having learned of the Board's apparent failure to send written notice of the meetings in question to the media, Ms. Puckett contacted Mr. Wilson by telephone to explain why there was no record responsive to the second part of his request. She reassured him that the minutes he requested would be released to him shortly. Upon receipt of Mr. Wilson's second open records request for the same records, Ms. Puckett again contacted the Board to determine whether the minutes had been located. On January 18, she received an email from the Board containing the minutes, and placed them in the U.S. Mail to Mr. Wilson on the same day.
Although the primary issue presented in this appeal was largely resolved by disclosure of the minutes to Mr. Wilson, 2 we are obligated to comment on a number of irregularities. To begin, the Montgomery County Board of Ethics has apparently failed to comply with KRS 61.876 by adopting rules and regulations "in conformity with KRS 61.870 to 61.884" in which it identifies, among other things, the title and address of its official custodian of records for open records purposes, and displaying the rules and regulations "in a prominent location accessible to the public." Had it done so, Mr. Wilson could have identified the Board's official custodian and directed his request to him or her instead of misdirecting it to Ms. Puckett. 3 Ms. Puckett found herself in the unenviable position of attempting to discharge her duties as an employee of the Montgomery County Fiscal Court and the duties of a public agency by which she is not employed and over whose records she has neither custody nor control. The Board should take immediate steps to bring itself into compliance with KRS 61.876(1) and (2) by adopting and displaying the statutorily required rules and regulations to prevent a recurrence of this problem.
Should similar circumstances arise in the future, we urge Ms. Puckett to implement the measures provided for at KRS 61.872(4). That statute provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
While Mr. Puckett's efforts were commendable, neither she nor the agency she serves was statutorily obligated to attempt to honor a request for records of another agency. The better approach, in this and future cases, is to notify the requester in writing, within three business days, that the recipient of the request does not have custody or control of the requested records and provide the requester with the name and address of the official custodian of those records.
As for the Board's conduct in this matter, we are reluctant to assign fault inasmuch as the request and appeal named an employee of the Fiscal Court and not the Board itself. Nevertheless, having been advised by Ms. Puckett that a request for Board records had been submitted, KRS 61.880(1) mandated that the Board locate and retrieve the requested records within three business days and not at its leisure. Because of its inaction, the minutes to which Mr. Wilson requested access were not forwarded to him until nine days after the Board was notified of his request. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
"The language of the statute directing agency action is exact," Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Inaction is not a viable option.
With reference to that portion of Mr. Wilson's request in which he sought access to "the documentation . . . showing why the Mt. Sterling Advocate didn't have a reporter at the two meetings [in question]," we find no error. Ms. Puckett explained that no such record existed, and this was a sufficient response under the Act. This office has recognized, on a number of occasions, that a public agency cannot afford a requester access to a document that does not exist or that it does not have in its custody or control. See, for example, 93-ORD-51. We have also recognized that it is not, in general, our duty to conduct an investigation to locate records which the requester maintains exist but which the agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship" between the laws governing records access 4 and the laws governing records management 5 at KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiry. Because the Montgomery County Ethics Board did not issue written notice of the two meetings in question, 6 no member of the media was present. There is no record "showing why the Mt. Sterling Advocate didn't have a reporter" at the meeting other than the written admission prepared by Ms. Puckett in response to Mr. Wilson's appeal. Although the Board's apparent omission may raise open meetings issues, this statement effectively resolves the open records issues.
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 meetings in question were regularly scheduled meetings, within the meaning of KRS 61.820, or special meetings, within the meaning of KRS 61.823. Special meetings require, inter alia , dissemination of written notification, consisting of date, time, and place, and the agenda, at least twenty-four hours before the meeting, to, inter alia , media organizations that have filed a written request to be notified of special meetings. The open meetings issue which this appeal raises is not ripe for review by this office because the issue has not been presented to the Board's presiding officer in a written complaint pursuant to KRS 61.846(1). 40 KAR 1:030 Section 1.
2 The appeal is not moot, within the meaning of 40 KAR 1:030 Section 6, because the Board denied the second portion of Mr. Wilson's request on the basis of the nonexistence of responsive records.
3 Of course, it was incumbent on Mr. Wilson to make at least some attempt to identify the Board's official custodian of records rather than leaving his request on the unattended desk of a county employee.
4 KRS 61.870, et seq .
5 KRS 171.410, et. seq.
6 Whether the Board was required to do so because these were special meetings is a separate open meetings issue that has not been properly presented to us. See note 1, above.