Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Jefferson County Attorney violated the Kentucky Open Records Act in partially denying Charles Michael Zoeller's request for various financial and operational records and information. More specifically, the County Attorney denied Mr. Zoeller's request for "[p]roposed budgets for 2005-2008, a "[l]ist" of the legal authority or authorities "upon which the County Attorney [and] assistant [county] attorneys receive renumeration for their services performed, " and his demand for a letter of "certification. " Because the County Attorney has now advised Mr. Zoeller that no documents exist in response to his clarified request for copies of the "proposed" or (later characterized as "working" budgets) , and offered a credible explanation for the nonexistence of same, nothing else is required. Insofar as the second item is properly characterized as a request for information rather than existing public records, which the County Attorney is not statutorily obligated to comply with, he did not err in declining to compile a list or create a record for the purpose of satisfying the request; however, the County Attorney must, in the alternative, provide Mr. Zoeller with an opportunity to inspect any public records (not reference materials) which are potentially responsive in accordance with prior decisions of this office if any such records exist.
By letter dated March 26, 2008, Mr. Zoeller asked for the following:
1. Proposed budgets for the years 2005, 2006, 2007, and 2008[.]
2. Actual budgets for the above years with all of the amendments and adjustments noted. As to the year 2008 the actual expenditures recorded to date.
3. List the Sections of the Constitution for the Commonwealth of Kentucky, Kentucky Revised Statutes, City Ordinances, Regulations, Rules, Orders, or any other authority upon which the County Attorney, [and] assistant [county] attorneys receive renumeration for their services performed.
4. Provide a detailed accounting of every source of income for the County Attorney's [O]ffice and the County Prosecutor[']s [O]ffice. This accounting is to include the amount received from every source for every [m]onth of the fiscal or calendar year.
5. Please list the base renumeration and name of each attorney working for this office for 2005, 2006, 2007, and 2008.
In conclusion, Mr. Zoeller requested that a written response denying the existence of any records be on letterhead. With regard to any records provided, Mr. Zoeller advised that the County Attorney "may put the records on a CD along with a letter certifying that the CD is a true correct and complete copy of that office's records of record. Without that certification the CD will not be accepted [but will be] return[ed] as failing to comply with this open records request." 1
In a timely written response, N. Scott Lilly, Second Assistant County Attorney, responded on behalf of the Jefferson County Attorney as follows:
1. Your request for "proposed budgets" will be denied because such records are exempt from disclosure under the Kentucky Open Records Act (KORA) as "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." See KRS 61.878(1)(j). Until a budget is approved, it is nothing more than a "recommendation" for an allocation of funds and, thus, falls squarely within the identified exemption.
2. Our various budgets for the designated years will be provided. However, with respect to your request for "2008...actual expenditures recorded to date," those records as they relate to the prosecutorial staff are in the custody of the Kentucky Prosecutors Advisory Council, 1024 Capitol Center Drive, Frankfort, Kentucky 40601. 2
3. Your request for a "list" of various legal authorities is not a proper request for records and will be denied because it is a request for information in the form of a list rather than a request for readily ascertainable records. In the first instance, unless a particular "list" actually exists in a public agency's records, the KORA does not require that one be created. See Opinion of the Attorney General 75-375 and 89-20. Further, your request seeks information, not particularly identified records, regarding constitutional and statutory authority for the "renumeration" of county attorney personnel. A request for information rather than specifically described records is not a proper request under the KORA and does not obligate the public agency to provide the requested information. OAG 90-77.
4. Even though your request for a "detailed accounting" of County Attorney "sources of income" could be interpreted as an improper request for information rather than one for records because it is imprecise with undefined time parameters, this office does maintain records that arguably meet your description. Because there is no defined time frame, we have assumed you want the records for the years you have previously identified and those are the years we will provide.
5. While this office does not maintain a separate list of assistant county attorneys and their salaries, we will provide records from which their names and salaries can be gleaned.
In conclusion, Mr. Lilly advised that his office was "in the process of collating the properly requested records from both computer and hard copy files of our various divisions. Once they have been compiled, they will be downloaded per your request onto a single CD. That process will be completed by Wednesday, April 9, 2008." Citing KRS 61.872(3)(b), Mr. Lilly also correctly advised Mr. Zoeller that he can be required to remit the cost of copying and postage prior to copies being mailed; the cost of reproduction (the CD he requested) "is $ 1.50 and the postage is 82 cents, for a total of $ 2.32." As for Mr. Zoeller's request for a certified letter, Mr. Lilly correctly observed "there is no KORA requirement for same" and further noted that "none will be forthcoming." Mr. Zoeller subsequently initiated this appeal, challenging the disposition of his request as to items 1 and 3 as well as the denial of his request for authentication of the CD. More specifically, Mr. Zoeller explained that he is "not familiar with the explicit terms as used by government as 'proposed budget' when it may need to be 'adopted budget. '" With Item 1, Mr. Zoeller "was requesting the budget which the County Attorney used as a working budget until the final expenditures had been approved as balanced." As to Item 3, Mr. Zoeller asserts that Mr. Lilly "was just picking because of the term used" and notes that he does not have access "to OAG letters or opinions."
Upon receiving notification of Mr. Zoeller's appeal from this office, Mr. Lilly supplemented his response on behalf of the County Attorney, initially noting that Mr. Zoeller's appeal was filed "before he paid for and received the CD's which contain the records" 3 the County Attorney agreed to provide him; Mr. Lilly enclosed a copy of the CD for this office to review. According to Mr. Lilly, had Mr. Zoeller made it clear that he was asking for a "working budget" the agency's response "would have been that no such documents exist as this office does not operate on a 'working budget' but only those approved by the Prosecutors Advisory Council and the Louisville/Jefferson County Metro Council." 4 Because Mr. Zoeller "acknowledges [the County Attorney] provided him with the budgets for the requested years and the expenditures to date for 2008," Mr. Lilly believes it is clear that his office provided Mr. Zoeller "with all budgetary records he properly requested and was entitled to review."
In addressing Mr. Zoeller's claim relative to Item 3, Mr. Lilly correctly argues that his initial response "clearly explains the reason for the denial of his request for a 'list' of legal authorities and cites supporting OAG's in that regard." Accordingly, his office "does not believe there is anything substantive that need be added to this explanation." In Mr. Lilly's view (and ours), the fact Mr. Zoeller does not have access to "OAG letters and opinions" is neither the fault of the County Attorney nor a proper basis for appealing the denial of a request; these legal authorities "are easily accessible to the public in published reference materials available on the internet and in most public libraries." With regard to Mr. Zoeller's request for the records to be "certified" as "authentic" Mr. Lilly reiterates that as the Attorney General is "obviously aware, no such requirement exists in the Kentucky Open Records Act and, thus, this office declined Mr. Zoeller's request in this regard." In the absence of a statutory requirement, the County Attorney sees "little reason to undertake a duty that the General Assembly saw no reason to impose." Because the County Attorney cannot produce nonexistent records nor is the County Attorney obligated to honor a request for information or certify the authenticity of any records already provided, this office affirms the disposition of Mr. Zoeller's request; the County Attorney's remaining obligation is to provide Mr. Zoeller with an opportunity to inspect any records which might yield the information still at issue assuming that any exist which are not otherwise protected.
Because the County Attorney has provided Mr. Zoeller with any existing records in his possession which are responsive to Items 2, 4, and 5 of the request, any related issues are now moot. Pursuant to 40 KAR 1:030, Section 6: "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." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes that Items 2, 4, and 5 of Mr. Zoeller's request have been honored (the CD appears to contain the requested information and records); accordingly, this office must decline to issue a decision concerning those records. In light of this determination, the remaining question is whether the County Attorney violated the Open Records Act in denying Items 1 and 3 of Mr. Zoeller's request and refusing to authenticate the records provided. With the exception of not offering to let Mr. Zoeller inspect records which are potentially responsive to Item 3, if any exist aside from reference materials, the answer is "no."
Although the County Attorney relied upon KRS 61.878(1)(j) in denying Item 1 ("proposed budgets" for 2005-2008) of Mr. Zoeller's request initially, upon learning that Mr. Zoeller was actually seeking the "working budgets" Mr. Lilly amended his response, advising that had Mr. Zoeller "explained his request in this manner," the original basis for denial would have been "that no such documents exist." As long recognized by this office, a public agency is not required or able to honor a request for nonexistent records or those which it does not possess; the record on appeal is devoid of evidence to refute Mr. Lilly's assertion. Having ultimately advised Mr. Zoeller in writing that no "working budgets" exist and provided a credible explanation for the nonexistence of such records, namely that the Office of the Jefferson County Attorney "does not operate on a working budget but only those approved" by the PAC and the Metro Council, the County Attorney discharged his duty under the Open Records Act. On this issue, the analysis contained at pp. 6-9 of 07-ORD-042 is controlling; a copy of that decision is attached hereto and incorporated by reference. When a public agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate the records whose existence or custody is in dispute." 01-ORD-36, p. 2.
In denying Mr. Zoeller's request as to a list of legal authorities, Mr. Lilly correctly asserted that a public agency is not statutorily required to honor a request for information as opposed to a request for specifically described public records nor must a public agency create a record to satisfy a request. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. As long recognized by the Attorney General, a public agency is not obligated to compile a list or create a record to satisfy an Open Records request; however, a public agency is required to make available for inspection, during normal office hours, those records which might yield the information sought. In our view, the analysis contained at pp. 3-5 of 07-ORD-042 is equally applicable on the facts presented; that decision is attached hereto and incorporated by reference as previously indicated. Bearing in mind "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," KRS 61.871, this resolution of the dispute strikes a reasonable balance between the public's right of access and the agency's need "to prevent excessive disruption of its essential functions." KRS 61.876(1).
That being said, the Attorney General has construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" due to being "in the possession of or retained by a public agency, " this office nevertheless concluded that disclosure of such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " so they could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4; 99-ORD-181. In so doing, the Attorney General contrasted reference materials generally available in a library with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a public agency] ." Even assuming for the sake of argument that reference materials are public records within the meaning of KRS 61.870(2), this office has recognized that public agencies are not obligated to conduct research by locating relevant statutes and regulations concerning the subject of a request in order to satisfy that request. In OAG 89-45, this office recognized that the Open Records Act does not require public agencies to conduct research or compile information to conform to a given request. Accordingly, the County Attorney is only required to produce for inspection existing nonexempt public records which might yield the information being sought, if any; nothing more, nothing less.
Turning to Mr. Zoeller's final claim, there is no requirement within the Open Records Act that a public agency provide a requester with a certified copy of the record(s) at issue as Mr. Lilly correctly noted in both of his responses. To the contrary, this office has expressly held that a public agency is not statutorily obligated to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." 03-ORD-207, p. 3. With the disclaimer concerning Item 3, the County Attorney's disposition of Mr. Zoeller's request is consistent with governing precedents and therefore affirmed.
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 Given that Mr. Zoeller used the permissive term "may" regarding the use of a CD in lieu of standard hard copies, and the County Attorney was apparently under the impression that his preference as to format was a CD, this office is unable to conclusively resolve the related confusion regarding the parties' respective obligations but does refer both to KRS 61.874 and KRS 61.872(2)(a) in particular.
2 By providing Mr. Zoeller with the name and address of the custodial agency, the County Attorney substantially complied with KRS 61.872(4).
3 Mr. Zoeller arguably waived his argument relative to certification of the records in accepting the CD; in any event, no such requirement exists in the Open Records Act.
4 Because the County Attorney has now denied the existence of the specific documents requested, consideration of the argument relative to KRS 61.878(1)(j) is unwarranted. See 00-ORD-140 (preliminary or "proposed budgets" are distinguishable from "previous budgets" and "current budgets, " both of which are open to inspection "as previous budgets have lost any 'preliminary' quality by being closed and current budgets are 'working' budgets indicative of final action"), a copy of which is attached hereto and incorporated by reference, for the relevant analysis (citation omitted). See also 98-ORD-17 (reaffirming that "draft budgets" may be withheld on the basis of KRS 61.878(1)(j)).