Request By:
Leonard Wilson
Stacey C. Honeycutt
Leah N. Hawkins
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Jeffersonville violated the Kentucky Open Records Act in denying Leonard Wilson's request for a copy of the "documentation of the audit report" for which the City has paid a private accounting firm. Insofar as the City failed to either issue a written response in compliance with KRS 61.880(1) , or provide a detailed explanation of the cause for delay in accordance with KRS 61.872(5), the City's initial response was procedurally deficient; however, the City was permitted to withhold the audit until it was presented to the "city legislative body" as evidenced by KRS 91A.040. Because the CPA presumably made the presentation required by KRS 91A.040(4)(e) to the Mayor and City Commissioners at the meeting held on April 28, 2008, a copy of the "complete audit report" should now be available for inspection and copying; the remaining issues raised by Mr. Wilson are not justiciable in this forum.
On April 2008, Mr. Wilson submitted a completed "Application for Copy of Public Records" to Jeffersonville City Clerk Stacey C. Honeycutt, asking for seven categories of records, all of which he was apparently provided with except for "[t]he documentation of the Audit Report that has been paid for." 1 By letter dated April 7, 2008, Mr. Wilson initiated this appeal due to his "concern relating to the Audit of the City of Jeffersonville. The 2007 year. [sic]" According to Mr. Wilson, the "CPA has been paid for the Audit but has not reported the financial findings [i]n the public meetings. This report is two months behind." Mr. Wilson believes "that the City has something to hide. " Accordingly, he asks the Attorney General to address his "concerns with the 2007 Audit. "
Upon receiving notification of Mr. Wilson's appeal from this office, Ms. Honeycutt responded on behalf of the City, initially advising that she "always give[s] Mr. Wilson or any other individual that request[s] open records the information that they request in a very timely manner." With regard to his allegation "that the City has something to hide, " Ms. Honeycutt asserts that Mr. Wilson receives "any and all information that he request[s]. . . . His complaint is that the Audit is two months behind." According to Ms. Honeycutt, the City has "a wonderful CPA [f]irm and they always make sure that if they are running behind that they fill out the proper [paperwork] and send it into the proper agencies for an extension. That is why we use a professional firm [Ray, Foley, Hensley & Company, PLLC] to do our audit. " As further explained by Ms. Honeycutt, the City "received the Audit in March 2008. The Audit is on the April 28, 2008 meeting agenda. Mr. Jerry Hensley will be here to report on the audit and the financial findings and to discuss any questions that anyone might have on this issue." Reiterating that the City "has nothing to hide, " Ms. Honeycutt notes that the City "has to publish the audit in the local newspaper after it has been reported to the Mayor and [B]oard of Commissioners." Regardless of whether the audit was reported in March or April, it "is what it is" and cannot "be altered in any shape, form or fashion."
Although the City failed to issue a written response which complied in all particulars with KRS 61.880(1), or, in the alternative, comply with KRS 61.872(5) by providing a detailed explanation of the cause for delay in providing access, the City was not required to release the audit while it was preliminary. 2 With the exception of the noted procedural deficiencies, the City did not violate the Open Records Act in postponing access to the requested audit.
As a public agency, the City must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, 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.
(Emphasis added). 3 In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
By its express terms, KRS 61.880(1) requires public agencies to issue a written and reasonably specific response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). As frequently noted by the Attorney General, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Here, the City provided Mr. Wilson with most of the requested copies in a timely manner, but apparently did not issue a written response specifying the reason for denying or postponing access to the audit nor has the City has offered any explanation for this deficiency on appeal.
Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 4 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days only under the following conditions:
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 .
(Emphasis added.) If any of those conditions exist, as in this case, 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) (emphasis added); 06-ORD-254; 02-ORD-165.
Said another way, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain . 01-ORD-38, p. 5 (Emphasis added.) Noticeably absent from the City's response are both of these mandatory elements. While extending the statutory deadline was justified here, insofar as the audit was not final, the City initially failed to issue a written response, and its ultimate response lacks the specificity envisioned by KRS 61.880(1) and KRS 61.872(5). Bearing in mind that public agencies have the burden of proof under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide detailed and particular information in response to a request for documents," this office must conclude that the City's response was procedurally deficient.
Edmondson v. Alig, supra, at 858; 97-ORD-170. That being said, the City was otherwise correct in withholding the audit until it had been presented to the "city legislative body" per KRS 91A.040.
Before addressing the substantive issue presented, this office is compelled to remind the parties that the Attorney General is "not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 05-ORD-063, p. 4, citing 99-ORD-121, p. 17. As consistently recognized by the Attorney General:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
96-ORD-120, p. 3. See also 05-ORD-006; 96-ORD-171; 96-ORD-142. To summarize, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. Accordingly, our analysis focuses exclusively on whether the City violated the Open Records Act in withholding the requested audit-nothing more, nothing less.
According to KRS 81.010 , the City of Jeffersonville, Montgomery County is a fifth class city. Each city of the first through the fifth class, pursuant to KRS 91A.040(1), "shall, after the close of each fiscal year, cause each fund of the city to be audited by the Auditor of Public Accounts or a certified public accountant. The audits shall be completed by February 1 immediately following the fiscal year being audited. " To the extent Mr. Wilson is complaining because the City has admittedly not fully complied with KRS 91A.040(1), "[t]he issue of its noncompliance with KRS 91A.040(1) cannot be resolved under the Open Records Act. " 98-ORD-173, p. 1; 03-ORD-240. However, KRS 91A.040 is relevant on the facts presented insofar as KRS 91A.040(4)(e) mandates that "[t]he completed audit and all accompanying documentation shall be presented to the city legislative body at a regular or special meeting." In relevant part, KRS 91A.040(5) provides that "[a] copy of an audit report which meets the requirements of this section shall be considered satisfactory and final in meeting any official request to a city for financial data[.]" Although the City did not initially provide any explanation for delaying access to the requested audit report nor did the City reference KRS 91A.040 in responding to Mr. Wilson's appeal, the City presumably relied upon this language in essentially arguing that the audit was not available for inspection because it was preliminary until such time as it was presented to the "Mayor and Board of Commissioners." Likewise, the City implicitly acknowledged the requirements of KRS 91A.040(6) in asserting that the City "has to publish the audit in the local newspaper" following that mandatory presentation. 5 When viewed in conjunction, these provisions validate the City's implicit characterization of the audit.
While this office has "consistently held that final audit reports are public documents and therefore subject to inspection (see, for example, OAG 76-633, OAG 82-340, OAG 84-225, OAG 91-72, 93-ORD-125), this office has just as consistently held that 'a public agency cannot afford a requester access to a document which does not exist or which it does not have in its possession or custody.'" 98-ORD-173, p. 1, quoting 93-ORD-51, p. 4. See 03-ORD-240 (holding, in relevant part, that Elkhorn City's response to a request for audits "was consistent with the provisions of the Act insofar as it cannot not make available for inspection documents which it does not have in its possession" and the City complied with KRS 61.872(4) and (5)). Of particular significance, the implication of these decisions is that an audit report does not have to be made available for inspection until it has been finalized. Here, possession of the audit report is not in dispute as the City has acknowledged receiving the audit report in March 2008; however, the City declined to provide Mr. Wilson with a copy at the time of his request because the CPA who prepared the audit was scheduled "to report on the audit and the financial findings and to discuss any questions that anyone might have on this issue" at the meeting held on April 28, 2008. In other words, the City denied access until the audit "was presented to the city legislative body" in compliance with KRS 91A.040(4)(e) and was no longer preliminary. With the exception of the noted procedural deficiencies, this office finds no error in the City's ultimate disposition of Mr. Wilson's request. Because a copy of the audit report which complies with requirements of KRS 91A.040 "shall be considered satisfactory and final in meeting any official request," the City has no basis upon which to deny Mr. Wilson's request but may require advance payment of a reasonable copying fee per KRS 61.874(1) and KRS 61.874(3). See KRS 91A.040(6)(e).
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 A check mark appears to the left of each category except for the records in question, the description of which is highlighted, and one category which Mr. Wilson does not reference on appeal. In accordance with 40 KAR 1:030, Section 6, this office finds that any issues relative to records already provided to Mr. Wilson are moot.
2 Inasmuch as the statutory exceptions are discretionary and should be used as "a shield and not a shackle," the Open Records Act does not prohibit a public agency from releasing otherwise exempt records. OAG 79-275, pp. 3-4.
3 In postponing access, the City was presumably relying upon KRS 61.878(1)(i) and/or (j), pursuant to which certain "preliminary" documents may be withheld unless and until adopted as the basis for any final action. See 07-ORD-090; 04-ORD-187.
4 02-ORD-165, p. 3.
5 Within thirty (30) days after the presentation of an audit to "the city legislative body, " each city shall "publish an advertisement in accordance with Chapter 424 containing," in relevant part:
(c) A statement that a copy of the complete audit report, including financial statements and supplemental information, is on file at city hall and is available for public inspection during normal business hours;
(d) A statement that any citizen may obtain from city hall a copy of the complete audit report, including financial statements and supplemental information, for his personal use[.]