Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Hillview violated the Open Records Act in denying the April 23, 2008, and May 6, 2008, requests of David Cross for "a copy of the tax abatement paperwork in its entirety that Mr. Mark Edison City of Hillview Attorney discussed, of the issue with Taylor Homes in their non payment of County and City of Hillview taxes and the resultant decision by the state to bypass the County PVA office and deal directly with the State PVA office."
On April 28, 2008, the City Clerk of Hillview responded to Mr. Cross' request by advising him that his request had been forwarded to the city attorney, Mark Edison, for response. On May 2, 2008, after receipt of Mr. Cross' request from the City Clerk, Mr. Edison advised her:
As far as my presentation concerning Taylor Homes request for City real estate tax abatement, you do not have that information because I did not furnish you a copy. Additionally that is attorney work product and not available to the public.
By letter dated, May 2, 2008, the City Clerk responded to Mr. Cross advising him that she did not have the paperwork regarding the Taylor Homes tax abatement request.
On May 6, 2008, Mr. Cross renewed his request for a copy of the tax abatement paperwork. The City Clerk responded to the request advising him that she had provided him with the agenda he had requested; that, as to his request for records for occupational taxes paid by Taylor Homes, she indicated that their tax return was filed with no employees paying occupational tax; and that she had no paperwork regarding the Taylor Homes' tax abatement request. Mr. Edison also responded to the request advising him that it appeared to be a duplicative request of the request he submitted on April 23, 2008, and denied the request, citing KRS 61.872(6) which he stated permitted the City to refuse to provide a duplicative answer.
Shortly thereafter, Mr. Cross initiated the instant appeal, acknowledging that he had made two requests for the tax abatement paperwork, but argued that he had yet to receive a substantive response to his request for the paperwork.
After notification of the appeal, by letter dated May 31, 2008, Mr. Edison provided this office with a response to the issues raised in the appeal. In his response, he states, in relevant part:
As my letter of May 2, 2008 states in paragraph four the City Clerk, the City Council members, Mayor, nor City are in possession of any public records as defined by statute concerning the City Attorney's discussion of the tax abatement request of Taylor Home.
The discussion was based on the records of the Bullitt County Property Valuation Administrator, the Bullitt County Court Clerk, the Bullitt County Sheriff, which are all public records, but not maintained by the City of Hillview. Any other information which may have been used to supplement the City Attorney's presentation was obtained in his private real estate practice, which is not related to or compensated by the City of Hillview. Additionally the investigative notes of the City Attorney would be preliminary notes not subject to an open records request (OAG 86-32). The discussion of the tax abatement request and final action on that request were taken at a regular monthly City Council meeting at which Mr. Cross was present.
In a letter dated June 12, 2008, Mr. Cross provided this office with a reply to Mr. Edison's response. Reiterating that his requests for a copy of the tax abatement records had not been answered in its entirety, Mr. Cross argued in part:
When papers are held up for public scrutiny by Mr. Mark Edison in a City council meeting forum; shown to the public, being read from certain pages of financial numbers relative to tax abatement obligations owed by Taylor Homes to the City of Hillview; tax abatement obligations owed to the Bullitt County Government discussed in the same documents; and then voted on in a public forum to collect taxes due by Taylor Homes, I fail to understand how these tax abatement documents are not related to the City of Hillview business as the taxes owed and collected are deposited in the City of Hillview treasury general account to funds the City services in their budget. I therefore believe I am entitled to inspect and obtain a copy thereof of the documents at my request.
Pursuant to KRS 61.880(2)(c), and in order to facilitate our review of the issue on appeal, we asked that the City provide us with copies of the disputed records for in camera inspection and to expand its argument that the records were exempt from disclosure.
By response dated June 24, 2008, Mr. Edison provided this office with copies of the records in dispute and further explained the City's position. In this response, he stated:
As stated in my response paragraph six (6), the records I examined to express my opinion are not City records, but maintained by the Bullitt County Property Valuation Administrator, the Bullitt County Court Clerk, and the Bullitt County Sheriff. I had no need to copy these records as they are public and available to anyone. Therefore only my notes as to what I thought was important from these records to form my opinion were taken, which I believe were completely preliminary abstracts.
As set forth in paragraph six (6), I have for thirty four (34) years maintained an active real estate practice and have requested tax relief from Cities, Counties, and the Department of Revenue for many clients. I have negotiated request for relief and I used this experience to formulate my opinion, based on my examination of the public records as to the position the City of Hillview should take in this case. After my presentation at the regular City Council meeting a vote was taken to deny the request for abatement.
Subsequently, Mr. Cross submitted another reply to this office reiterating his position that the requested tax abatement records used by the City Attorney in his presentation were public records subject to disclosure.
For the reasons that follow, we agree with Mr. Cross' position and find that the City's responses to his requests were procedurally and substantively deficient.
To begin, KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute 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.
(Emphasis added.) In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although the City asserts that the tax abatement records were exempt as "attorney work product" and preliminary "notes," its responses did not include a statement of the specific exception authorizing the withholding of these records or provide a brief explanation of how the exception applies to the records withheld, must less provide "particular and detailed information in response to [the] request." The failure of the City to cite, in its responses to Mr. Cross, the specific statutory exception which authorized the withholding of the requested tax abatement records along with a brief explanation of how the cited exception applied to the records withheld constituted a violation of the Open Records Act. KRS 61.880(1)
Secondly, we reject the City's argument that Mr. Cross' second request could be denied under authority of KRS 61.872(6), as a repetitive request. Mr. Cross resubmitted that portion of his original request concerning the tax abatement records because the City did not provide him with a substantive response to that request. Accordingly, we find the City's reliance upon KRS 61.872(6) to be misplaced.
Next, we address the substantive issue relating to access to the tax abatement records. KRS 61.870(2) defines the term public record as "all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " (Emphasis added.) Since, the records were used by the city attorney in his presentation in a public hearing advising the city council on the tax abatement issue, they qualify as public records in the possession of a public agency and are subject to the Open Records Act.
In 04-ORD-123, we analyzed a similar question regarding the status of records not maintained in a city's files and concluded the city's position that the requested records were not public records was legally unsupportable. In that appeal, the City of Windy Hills characterized a letter written to the city's attorney by MSD regarding city drainage issues and read by city's attorney at a city council meeting, as a nonpublic record because it was maintained in a file labeled "drainage matters" in his private law office. This office held that the city's attorney held the requested letter at the instance of and as custodian on the city's behalf, and that the city's position that it had no control of the record was without merit. In reaching that conclusion, we stated: "In the end, 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. 1999). 1
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(2), " Id., and affirmed the circuit court's judgment ordering production of the records.
As in 04-ORD-123, we find no support for the proposition that the City has no control over records maintained by its City Attorney and relating to city business. As noted above, having failed to set forth a statutory basis for withholding the records they should be made available for Mr. Cross' inspection.
The fact that the records are not regularly maintained by the City does not alter our conclusion that they are public records used by the City Attorney in advising the City on a tax abatement issue and, thus, subject to the Open Records Act. On the basis of KRS 61.870(2) and a series of open records decisions, we held that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card) ; and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet).
Our in camera review of the records confirm Mr. Edison's statement in his response that most of the records at issue are records that would be maintained in the offices of the Bullitt County Property Valuation Administrator, the Bullitt County Court Clerk, and the Bullitt County Sheriff. Although we cannot reveal the contents of the records, we can describe them generally as fifteen pages, including correspondence to and from Taylor Homes with the Kentucky Department of Revenue, the Bullitt County Property Valuation Office, and delinquent tax bills and summaries of the amount of taxes owed relating to delinquent Bullitt County and City of Hillview property tax bills of Taylor Homes and prior property owner BFT Investments Limited for the years 2002-2006.
Although there are handwritten notations on some of the records, none appear to reflect attorney work product. Many of the notations are telephone numbers, fax numbers, account numbers, etc. Four of the records are fax transmission cover sheets of transmission reports. Because the City has not cited a specific statutory exception authorizing the withholding of any of the notations and a brief explanation how the exception applies to any notation to be withheld, the records should be made available to Mr. Cross.
Moreover, in our view, the City has not established that the records or notations withheld consist of "the mental impressions, conclusions, opinions, or legal theory of an attorney or other representative" of the City, as required to qualify for exclusion under the attorney work product doctrine. 98-ORD-124, p. 8. In his May 31, 2008, response provided to this office, Mr. Edison did allude that the investigative notes of the City Attorney would be preliminary notes not subject to the open records request. In support, he cited OAG 86-32. In that opinion, this office held that preliminary notes (whether handwritten or typed) setting forth the opinions, observations, and recommendations not representing final agency action could properly be withheld from disclosure under exceptions now codified as KRS 61.878(1)(i) and (j). But that opinion is inapplicable to the instant appeal in that the notations in the records at issue consist primarily of facts (numbers) rather than opinions, observations, or recommendations.
We do point out that KRS 131.190 requires redaction of delinquent tax amounts and other information relating to the affairs of a person's business. This office has held, that pursuant to this statute, incorporated into the Open Records Act by KRS 61.878(1)(l) 2, delinquent tax amounts and personal identification information, such as social security numbers and federal identification numbers remain confidential and can properly be redacted under KKRS 131.190 and KRS 61.878(1)(a). 04-ORD-010; 07-ORD-169.
Accordingly, as noted above, we conclude that the City improperly denied Mr. Cross' request for copies of the tax abatement records and they should be made available to him, with permissible redactions under authority of KRS 131.190 and KRS 61.878(1)(a), as set out above.
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.
David CrossBetty J. BradburyMark E. Edison
Footnotes
Footnotes
1 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.
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2 KRS 61.878(1)(l) prohibits the disclosure of public records or information, "the disclosure of which has been prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
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