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 Oldham County Planning and Zoning Commission in responding to Royden K. Cullinan's August 1, 2008, request for records relating to the proposed Brentwood development violated the Open Records Act.
In a letter dated August 6, 2008, Ms. Allen responded to Mr. Cullinan's request, advising him:
All records held by this office which reflect correspondence, memoranda, applications, or other documents used or adopted by the Planning Commission or the Administrator when making a final decision are incorporated into the file of the development in question. All other documents in the possession of this office that are relevant to your request will be available for your review on Friday, August 15, 2008.
All preliminary correspondence offered under terms of confidentiality, and having to do with the application in question that concerned proposals or opinions that were not material to, or incorporated within the final decision of the Commission or the Administrator are excepted documents under KRS 61.878(1)(j).
Beyond what is contained in this response, our office does not possess any correspondence by and between a member or staff of the Oldham County Planning and Zoning Commission and Oldham County Magistrate or Fiscal Court Staff member, Duane Murner, Paula Gish or other employees or staff of the Oldham County Judge Executive's Office.
I cannot comply at this time with your request for any and all correspondence between myself and any other individual concerning the Brentwood case because I have no mechanism with which to search all documents at my disposal under the criteria you request; furthermore, based upon KRS 61.872(6) , it is my belief that attempting to fulfill your request would pose an unreasonable burden on my office in that it would require examination of each and every record received by us during the time-frame described.
?
This office does not possess any correspondence by and between any third party, not a member or staff of Oldham County Planning and Zoning, and an Oldham County Magistrate of Fiscal Court Staff member, Duane Murner, Paula Gish or other employees or staff of the Oldham County Judge Executive's Office. Correspondence to or from any outside source and a Magistrate of the Fiscal Court, or correspondence to or from the office of the Judge Executive are not documents received or regularly held by the Planning Commission Administrator. I suggest you contact the individual magistrates and the Office of the Judge Executive for that information.
I have enclosed those copies requested. Please note that the document you requested as "Minutes" remains a preliminary draft, as it has not yet been approved by the Commission, and, therefore, I am withholding it until such approval takes place under KRS 61.878(1)(j).
Legal bills, if any, as described in your request will also be made available August 15, 2008.
In a reply letter to Ms. Allen, dated August 8, 2008, Mr. Cullinan challenged her assertion that providing the records sought would constitute an unreasonable burden per KRS 61.872(6). He argued that his requests in paragraphs II and III were "specific as to subject matter, limited time-frame and the name of the author or recipient of the correspondence in question." Addressing her claim that producing the records sought in paragraphs II and III of the request would require examination of each and every record received by the Commission during the time-frame described, Mr. Cullinan asked that, since his request pertained only to the "Brentwood development," she confine her search for the requested records to only those records contained in the "file of the development." Finally, he advised that pursuant to KRS 61.872, he would like to obtain copies of the records at issue rather than merely review them.
On October 1, 2008, Mr. Cullinan initiated the instant appeal stating that Ms. Allen's blanket assertion that his August 1, 2008, request was "unduly burdensome" did not comply with KRS 61.872(6).
After receipt of notification of the appeal, Ms. Allen provided this office with a response to the issues raised in the appeal. In her response, she advised in relevant part:
In my first correspondence to Mr. Cullinan, I indicated that I believed a request to review every one of the hundreds of application, or "plat", files in our office and determine whether any of these held "correspondence having to do with the Brentwood application" would be "unduly burdensome. " In the same letter, I informed him that this office routinely places all public records relevant to any action taken by the Oldham County Planning and Zoning Administration or its Planning Commission in the file associated with that property. I indicated that the file concerning the application subject to his request would be made available to him at our office during regular business hours.
In paragraph four of his August 8, 2008, letter to me, Mr. Cullinan objected to my unwillingness to embark on a review of every file in this office in response to his request for "any and all" documents, by correctly observing that all documents relevant to his request ought to be contained in the application file for that subdivision. His suggestion was that I review the file and produce copies of any correspondence relevant to his request that it might contain. These were provided to him on August 31, 2008.
In my original reply to Mr. Cullinan, I also indicated that any documents excepted by KRS 61.878(1)(j) would not be provided. This exception applies to preliminary memoranda, opinions, and correspondence relating to an issue being considered by a public agency. After thorough review of documents, I found no preliminary documents meeting the exception described in that statute. Since they did not exist, I could not identify them to Mr. Cullinan.
Addressing the denial of Mr. Cullinan's request for a copy of the minutes of the July 25, 2008, "special meeting, " Ms. Allen advised that the minutes of the July 25, 2008, "special meeting" remained a preliminary draft, as it had not yet been approved by the Commission, and withheld access until approval had taken place under KRS 61.878(1)(j). We find that the Commission did not violate the Open Records Act in denying a copy of the draft minutes on the basis that they had not been approved and adopted as the official minutes of the Board. 98-ORD-36.
Since the Commission has agreed to make the records in its file related to the Brentwood development available for Mr. Cullinan's inspection, we believe that the only issue before us in this appeal is when the copies of the records are to be made. Mr. Cullinan has indicated that he wants to obtain copies of the records at issue rather than review them and will arrange for the records to be retrieved subsequent to or concurrent with payment of the reproduction costs. Because he does not precisely describe the records he seeks, the Commission can copy all the records in the file and require prepayment prior to delivery or the parties can consult with each other to resolve any differences over records Mr. Cullinan seeks. This may prevent him from receiving and paying for any records he does not want.
Moreover, because the Commission has agreed to make records responsive to his request available to him, it has waived its argument that production would pose an unreasonable burden on the agency pursuant to KRS 61.872(6) .
Finally, the Commission in its initial response, denied the request for records which may be preliminary in nature, contain opinions, or constitute correspondence, pursuant to KRS 61.878(1)(j). However, in its supplemental response, the agency advised that after a thorough review of the records at issue it found no documents meeting the requirements of the exemption and affirmatively advised Mr. Cullinan that no such records existed or were being withheld from disclosure. In addition, as noted in the Commission's August 6, 2008, response quoted above, the agency also advised Mr. Cullinan that certain requested correspondence and other records did not exist. 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 agency discharged its duty under the Open Records Act by affirmatively so advising Mr. Cullinan. 99-ORD-150. Thus, we find no violation of the Open Records Act in this regard.
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.