Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Boone County Board of Education did not violate the Open Records Act in the disposition of David O'Brien Suetholz's request for records relating to the construction of Cooper High School. Gerald F. Dusing, counsel for the Board, denied Mr. Suetholz's request for a copy of contractor payroll records advising him that the Board did not have certified payroll records respecting the construction of the school and suggested that he contact the general contractor, Quantum Construction, for those records.
It is the decision of this office that 99-ORD-202, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. Here, as in 99-ORD-202, we find that although records of a subcontractor or a contractor under contract with a public agency "are records in which the public has a legitimate interest" insofar as "[a]mounts paid from public coffers are perhaps uniquely of public concern...," we are not empowered to declare, in the context of an open records appeal, that an agency's "failure to require that records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " 99-ORD-202, p.2. Because "Kentucky's open records law applies only to records which are in existence, and in the possession or control of a public agency, " and the Boone County Board of Education has elected not to take possession of, and exercises no control over the requested records, "satisfied that the available documentation is adequate so long as the contractor performs the work in the contract for the bid amount and in a manner that satisfies the [contractual] specifications," we hold that the Board properly denied Mr. Suetholz's request on the basis that it could not produce for inspection nonpublic records that were not in its custody or control. 99-ORD-202, p. 5. Accord 06-ORD-201 (holding that the Kenton County Public Library properly denied request for documents relating to two private contractors to the general contractor on a public construction project on the basis that the Library could not produce for inspection nonpublic records that were not in its custody or control.) 1
Mr. Suetholz also requested a copy of the general contract as well as subcontracts for sheet metal work; invoices reviewed by the Board for cost overruns for any phase of the Cooper High School project; and a list of every general contract and subcontract for any aspect of the work for the school. In a response to this office, with copy to Mr. Suetholz, Mr. Dusing addressed the issues raised in the appeal, advising that Mr. Suetholz had been provided with a copy of the contract with the general contractor (which he assumed was the requested "general contract" ) and advised that the Board did not have copies of the general contractor's contracts with its subcontractors. He further advised that on pages 6 through 8 of the Form of Proposal portion of the general contractor's contract was a list of all subcontractors. Finally, Mr. Dusing advised that there were no "invoices" per se for "cost overruns" for the Cooper High School Project, explaining that the general contractor submits applications for change orders itemizing proposed additions or subtractions of work with charges/credits. He stated that all applications for change orders and change orders to date were being provided to Mr. Suetholz.
40 KAR 1:030, Section 6, provides: "If the 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." Since Mr. Suetholz was provided with copies of the records described above, the appeal as to those records is moot and no decision will be rendered as to those records.
The Board also advised Mr. Suetholz that it did not have a copy of the general contractor's contracts with its subcontractors. 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 Board 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 his letter of appeal, dated May 29, 2008, and received by this office on August 14, 2008, Mr. Suetholz indicated that on February 8, 2008, he had sent an open records request to the representative of the Board, and Mr. Dusing, responding on behalf of the Board, advised him he would look into it. Mr. Suetholz further stated that on April 11, 2008, he sent a letter to Mike Blevins of the Boone County Board of Education again requesting the documents and additional documents. As of the date of his letter of appeal, May 29, 2008, he had not received a response from either the Board or its attorney. 2
In its response submitted after the appeal was initiated, the Board's counsel indicated that he did respond to Mr. Suetholz's February 8, 2008, request by telephoning him and informing him that the Board did not have the requested records. This did not cure the failure to timely respond to the open records request in writing within three business days after its receipt as required by KRS 61.880(1). 03-ORD-083. A response to a letter of appeal, pursuant to 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not supplant an agency's initial response or the requirement that it timely respond to an open records request. See 04-ORD-068. 03-ORD-083. The failure to provide Mr. Suetholz with a written response to his requests within three business days after receipt of each constituted a violation of KRS 61.880(1).
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 In his letter of appeal, Mr. Suetholz stated that he believed that the Board had the records when they were requested and that they may have been transferred to the general contractor. Mr. Dusing, in his supplemental response to this office, advised that he and Mike Blevins, Assistant Superintendent for Operations, Boone County Schools, "have repeatedly advised Mr. Suetholz that the Boone County Board does not have certified payroll records respecting the construction of Cooper High School" and suggested he contact the general contractor for those records. In a September 22, 2008, letter to Mr. Suetholz, Mr. Dusing advised that in October 2007, someone from the iron workers union requested the Board to produce payroll records of its workers on the school job. Mr. Blevins advised the inquirer that the school system did not have, possess, keep or have any involvement in the payroll records, but that he would ask Quantum Construction if they would furnish them to the union. Quantum delivered their records to the school system, rather than directly to the union representative. Mr. Dusing explained that the school system called the union representative to come pick up the records, which he/she did; copies were not made; and the relay was simply a courtesy. Subsequently, a similar request was made by a sheetmetal workers representative (Mr. Suetholz's client), who was informed that the Board did not have the records and, as a courtesy, Mr. Blevins asked Quantum Construction if they would provide those records to the sheetmetal union representative. Quantum Construction told Mr. Blevins that they declined to do so and Mr. Blevins so advised the requestor. As noted above, this office is not empowered to declare, in the context of an open records appeal, that an agency's "failure to require that records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " 99-ORD-202, p.2. Whether Quantum Construction elects to release its payroll records to Mr. Suetholz's client is a matter that must be resolved between the two parties.
2 Addressing Mr. Suetholz's complaint that the Board also failed to respond to his April 11, 2008, request, Mr. Dusing advised that Mr. Blevins did not recall, nor has no record receiving it. The record on appeal contains insufficient evidence concerning the actual delivery and receipt of Mr. Suetholz's April 11, 2008, request for this office to conclusively resolve this related factual discrepancy and make no finding in this regard. 03-ORD-061.