Request By:
Jacqueline Castellano
Steven C. Martin
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 actions of the Elsmere Fire Protection District relative to the request of Jacqueline Castellano for records of the District violated the Open Records Act.
By letter dated September 22, 2008, Ms. Castellano submitted a request to Bob Stegman, Chairman, Elsmere Fire District Board, stating in part:
I Jacqueline Castellano (Treasurer and Chairman of Budget Committee) have asked numerous times to be able to review the financials (bank statements, firehouse bills, personnel credit card statements with receipts and to be at least one of the signers on checks, etc.) and time sheets for the hourly personnel of the Elsmere Fire District (copies attached) .
Pursuant to the Open Records Act, Ms. Castellano requested to review the following records on a monthly basis:
(1) All Financials (bank statements, bills with receipts to the penny, company credit card statements for personnel use with receipts.
(2) All hourly Personnel time sheets.
(3) By laws for the Elsmere Fire District.
In her request letter, Ms. Castellano stated that, as Treasurer and Chairman of the Board's Budget Committee, she felt it was her obligation as a sworn member of the District to be able to review these records.
By letter of September 23, 2008, Steven C. Martin, Ziegler & Schneider, counsel for the District, responded to Ms. Castellano's request, advising her in pertinent part:
Your requests under (1) and (2) (all Financials and all hourly Personnel time sheets . . .) is without beginning and without end. The requests are too broad since it does not specify a beginning date or an ending date and conceivably could include every piece of paper that would be responsive from the beginning of time. I believe under KRS 61.872(6) your request "places an unreasonable burden in producing public records . . ." and compliance will interfere with the daily operation of providing fire protection and emergency services.
As you know from your experience with the Elsmere Fire District, time sheets are continually turned in on a periodic basis. Your request would be a continual request for inspection of all time sheets and all financial documents as you have defined them, without end.
As I understand it, you want to review all time sheets for all personnel on an ongoing basis. Time sheets are turned in and have to be produced to the appropriate agencies for payment. Your requests for those time sheets as they are produced will interfere with the payment of wages for the paid members of the Elsmere Fire District. I also have concern that the individual time sheets may contain information of a personal nature. Producing them in this fashion may violate KRS 61.878(1)(a).
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Again, if there can be a more specific request that will not interfere with the operation of the Elsmere Fire District and will be more reasonable, please do not hesitate to contact me.
Shortly thereafter, Ms. Castellano initiated the instant appeal, stating that she had made numerous attempts by way of Board meetings, letter, and emails requesting to review all financials the Friday before the board meetings. She further requested "[t]o be able to be one of the signers on all checks that go out, and to review all hourly employee time sheets the Friday before they are submitted." (Emphasis in original.)
After receipt of notification of the appeal, Mr. Martin, on behalf of the District, provided this office with a response to the issues raised in the appeal. In his response, he advised that he had had no further contact from Ms. Castellano concerning his request, in his September 23, 2008, letter, for her to narrow down the very broad request which he believed would actually interfere with the day-to-day operations of the Elsmere Fire District. He further advised, in relevant part:
Ms. Castellano has made requests to the Chairman of the Board to exercise certain rights she believes she has. Those are not part of an Open Records Request I received. I would have wished for Jacqueline Castellano to make some limiting agreement to her request so that we could respond. As my letter stated, she is asking for an open-ended day-to-day review of the operations of the Elsmere Fire District which will be never-ending and will interfere with the operations by the Chief, Paul LaFontaine, and his staff.
The Fire District Board does not function as the daily management of the Fire Department. They set policy.
This Board takes their duties very seriously and recognize they do not approve or disapprove hours of employees. Ms. Castellano, according to the September minutes, views her job, as one member of the Board, to control personnel rules.
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The reason the timesheets are available after they have been approved is that the Chief of the Fire District has the responsibility for the approval of hours for full and part-time personnel. Clearly, Ms. Castellano is attempting to micro-manage the office of the Chief by interposing herself, as a member of the Fire District Board, to review timesheets turned in by different employees of the District. Frankly, the request to interfere in timesheets is to possibly interfere with time of an employee with which Ms. Castellano is having a current dispute.
That being said, the offer was made to review timesheets after they have been approved and Ms. Castellano has refused to review them and stated as much in the September meeting.
We first address Ms. Castellano's standing open records request to review the District financial records the Friday before the Board's meetings on a monthly basis. In 99-ORD-155, we held that the Hart County Board of Education was not obligated to honor a standing request for access to Board Packets for upcoming meetings. In reaching this holding, we quoted the following language from 99-ORD-110:
"standing requests" for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also , 95-ORD-43 (holding that a "standing request" for electronically stored records in the custody of the county clerk was procedurally deficient); compare , OAG 90-112, p. 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period ," specifically identified the records sought, and must be honored) . This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view that "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 94-ORD-128, p. 2; 95-ORD-43, p. 3.
99-ORD-110, p. 3. In 99-ORD-110, the Attorney General affirmed this line of decisions and concluded that the Bullitt County Sheriff need only honor requests for existing records, meaning records which have been "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Pursuant to KRS 61.872(2), we further held that the sheriff could require the requester to submit a new request each time he wished to inspect the department's records. We find that the logic of these decisions extends to the appeal before us.
The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by the District. No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that Ms. Castellano's request is for prospective records, the District is not obligated to honor it. Accordingly, under the authorities cited above, we conclude the District properly denied her open records request to review records not yet in existence.
However, Ms. Castellano is entitled to inspect the District's financial records in existence at the time of her request. We believe that she sufficiently described the records sought (bank statements, bills with receipts to the penny, company credit card statements for personnel use with receipts and all hourly time sheets) to enable the District to identify and make the records available for her inspection. Since she made her request under the Open Records Act, she would have the same right of inspection as any other citizen, even though she is a District Board member. 92-ORD-141. If she wishes to conduct monthly inspections of the preceding month's financial records, she must submit a written request to the custodian of records describing the records she seeks to inspect at the end of the month. KRS 61.872(2). The custodian may then deny her request or portions of the request if the record she asks to inspect falls within the parameters of one or more of the exceptions set forth in KRS 61.878(1). In sum, we find that the District should make available for inspection current monthly financial records Ms. Castellano wishes to review. Thenceforward, her review will be retroactive, rather than prospective, and she must be permitted to inspect all nonexempt records documenting the previous month's "financials."
The District denied Ms. Castellano's request for a copy of its bylaws by advising her that it had no bylaws. Ms. Castellano asserts that the District should have bylaws, but the agency affirmatively advised that it does not have bylaws.
In 06-ORD-042, at p. 3-4, a case in which there was a disparity between the parties as to the existence of records, this office explained:
. . . When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
As noted above, it is not within our statutory charter to investigate in order to locate a document that the requesting party maintains exists, but which the agency states does not exist, or to otherwise resolve a dispute arising from such a disparity. Accordingly, under the facts presented, we find no violation as to this portion of the response.
Turning to Ms. Castellano's claim that as a member of the Elsmere Fire District Board she is entitled to inspect District records, we note that in 96-ORD-110 this office was asked to determine if a local school board member was required to proceed under the Open Records Act in order to access board records. There, we observed:
The Attorney General has consistently recognized that under the Open Records Law, all persons have the same standing to inspect public records and that the purpose for which an individual requests those records is irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, at p. 5.
With reference to a city councilperson, in OAG 91-129, this office stated:
Thus, . . . a member of the school board would be entitled to documents of the school system which relate to a legitimate governmental purpose and the board member's public function. If the request is for records which fall outside this area, then the board member's right of inspection would be the same as that of any other citizen under the Open Records Act.
96-ORD-110, pp. 4, 5; see also 96-ORD-177 and 01-ORD-119.
We believe that Ms. Castellano should be permitted to inspect District records in the discharge of her official duties as long as she can demonstrate that she is fulfilling a legitimate government function. By the same token, if the records requested fall outside her official duties, within the meaning of KRS 61.878(5), Ms. Castellano's right of inspection is the same as any other citizen under the Open Records Act. 96-ORD-110.
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.