Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the City of Cumberland subverted the intent of the Open Records Act, short of denial of inspection, by disclaiming custody of employee timesheets while those timesheets were being, or were about to be, audited by a private auditor and, consequently, failing to afford the requester timely access to those records. For the reasons that follow, we find that the City subverted the intent of the Act within the meaning of KRS 61.880(4). 1
By letter dated January 7, 2009, Carl Hatfield requested "copies of time cards reflecting the pay periods of the last two weeks in December 2006, 2007, and 2008 pertaining to" three named employees. Although the record on appeal contains no indication that the City responded to this request, on January 8 Mr. Hatfield submitted an amended request in which he asked for copies of "Page 24 of the Cumberland Personnel Manual, Ordinance No. 391, dated January 19, 2006" and time cards for an additional four city employees along with the three employees identified in his original request. His January 8 request contained handwritten notes indicating that the City "Gave [a] copy [of the Ordinance] to Carl Hatfield 1-9-09," but directing Mr. Hatfield to "see attached" relative to his request for time cards. The lower portion of his request letter contained two handwritten entries:
Gave to Carl Hatfield - Jan. 13-2009 @ 11:10 AM
Rec:
Jan 8, 2009 - By Carl Hatfield/(illegible)
The attached letter, dated January 13 and signed by City Clerk Robin Smith, states, "All records for 2007-08 fiscal year are boxed up for the auditor in the back office and we didn't want to go through it." On January 14, Mr. Hatfield initiated a second appeal acknowledging receipt of the requested ordinance and 2008 time cards, but objecting to the continued nondisclosure of December 2006 and 2007 time cards. He later explained that the December 2006 time cards had just been audited and should not be included in the FY 2007-2008 records "allegedly boxed up for the auditor. " It was his position that he "should not have to wait for the December 2007 time cards to be returned by the auditor to receive copies of the December 2006 time cards which are immediately available."
In correspondence directed to this office following commencement of these appeals, Cumberland City Attorney S. Parker Boggs defended his client's actions. Focusing on the December 2006 and 2007 time cards that remained in dispute, he observed;
City Clerk, Robin Smith, informed [Mr. Hatfield] in person and in the letter dated January 13, 2009, (included with his letter of appeal), that the other time cards were "boxed up for the auditor" . The auditor is currently working to complete the 2007-2008 fiscal year audits. The requested information was not within her custody and control to provide upon Mr. Hatfield's demand. Mr. Hatfield was provided all of the available records which he requested. However, time cards for 2007-2008 are in the custody of the auditor and the Clerk did not want to disturb records that were in the process of being reviewed by the auditor.
Mr. Boggs agreed to provide Mr. Hatfield with copies of the December 2006 and 2007 time cards "when the auditor returns custody of them to the Clerk." Because the City is statutorily foreclosed from surrendering custody of its records, we find that this response constituted a subversion of the intent of the Open Records Act insofar as it impeded timely access to the December 2006 and 2007 time cards.
To begin, the fact that public records that are the subject of an open records request are "boxed up for the auditor in the back office and [city staff] didn't want to go through it" does not represent a legally recognized basis for denying, albeit temporarily, access. Nor can it be persuasively argued that the City relinquishes custody and control of its records while those records are being audited. KRS 61.8715 recognizes:
an essential relationship between the intent of [the Open Records Act] and that of [the State Archives and Records Act found at KRS 171.410 to 171.740] dealing with the management of public records . . .; and that to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
This provision cross-references KRS 171.680(1) requiring "[t]he head of each state and local agency [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency" and KRS 171.710 requiring "[t]he head of each state and local agency [to] establish such safeguards against removal or loss of records as [s]he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740." Ultimately, then, an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). Nor should an agency be able to evade a legitimate request based on "the obvious fact that complying with [it] will consume both time and manpower . . . ." Id. at 666. Simply stated, the City's defense of its partial denial of Mr. Hatfield's request was wholly inadequate.
We have learned that the City's apparent practice of placing original city records in a private auditor's hands to be reviewed offsite is not unique. We have also learned that this is not considered the best practice by the Auditor of Public Accounts. In response to our KRS 61.880(2)(c) inquiry, her office advised that a written policy in the in-house "APA Policies and Procedures Manual," relating to "Removal of an Auditee's Original Records," provides:
An auditee's original documents and records may not be taken from the auditee's premises out of the auditee's continuing custody or control, unless (a) the removal is to a location, designated and approved in a writing signed by the auditee, which specifically list the documents being removed; or (b) pursuant to a subpoena or court order. This policy applies only to the original records of auditees, not photocopies.
Recognizing that "increasingly sophisticated scanning and color copying technology" has resulted in a "trend" toward accepting scanned images of original documents, the Auditor's Office nevertheless stated that "it is common auditing practice to use original documentation as much as possible as the audit source." These views were echoed by the State Records Branch of the Kentucky Department for Libraries and Archives whose representative orally expressed the view that the agency undergoing audit cannot disclaim custody and control of the records, but must timely honor a request for nonexempt records notwithstanding the audit.
Both KRS 61.8715 and Commonwealth v. Chestnut, above, speak directly to the requirement that public agencies exercise continuing control over, and management of, their records in a manner aimed at insuring accountability and facilitating public access. While the City's practice of "boxing up" public records to be turned over to its private auditor, resulting in inordinate delays in release of those records, may not constitute a violation of the Open Records Law, or any other provision of the Kentucky Revised Statutes, it clearly constitutes a subversion of the intent of the law. In particular, the City's practice subverts the intent underlying KRS 61.872(5) 2 and KRS 61.880(1), 3 both of which contemplate timely access to public records not to exceed three business days from receipt of the request. 4
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.
Carl HatfieldLoretta CornettRobin SmithSteven Parker BoggsRobert McBeathJerry Carlton
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
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2 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
3 KRS 61.880(1) 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.
4 See, e.g., 08-ORD-046, citing OAG 84-300 and 93-ORD-134, and holding that absent a detailed explanation of the cause for delay and a statement of the earliest date on which the records will be available, timely access to public records has been defined as "any time less than three days from receipt of the request."
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