09-ORD-055 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the City of Midway violated the Kentucky Open Records Act in partially denying Maralyn Burstein's request for various financial and operational records, including those documenting the legal fees of the City Attorney and related information, and those identifying "all properties the Council now intends to sell and their location, as well as any correspondence pertaining to them now current." Consistent with prior decisions, including 05-ORD-049, upon which the City relied, this office finds no error in the redaction of the information withheld on the basis of the attorney-client privilege from the legal invoices disclosed as the remaining material reflects the general nature of the services rendered and the associated fees. With regard to nonexistent records, the City is neither obligated to honor the request nor to "prove a negative" in order to refute a claim that certain records do exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). To the extent Ms. Burstein requested information rather than existing public records, the City did not err in declining to honor the request; a public agency is not required to comply with a request for information, or compile a list or create a record for the purpose of satisfying a request as the Attorney General has consistently recognized. Because the City has "neither rejected all bids nor accepted one" for the Old Midway Sewer and Waste Treatment Plant, the related correspondence was properly withheld per 08-ORD-144.

By letter dated January 22, 2009, 1 Ms. Burstein requested access to nine items of records and information, all of which are set forth below along with corresponding sections of the City's response, which are italicized. More specifically, Ms. Burstein requested the following:

a. all of Mr. Moloney's time sheets from the day he began to represent Midway, as well as any countracts [sic] pertaining to him from the Council, including any wa[i]vers that may have been written by the Coun[ci]l when he was hired [;]

Your request for contracts regarding Mr. Moloney's services [is] addressed below in response to item "b" of your letter. As for waivers, to the City's knowledge there are no records in its possession that are responsive to your request. . . . Concerning Mr. Moloney's time sheets, the City assumes you mean Mr. Moloney's invoices to the City, which contain time entries related to Mr. Moloney's work as City Attorney. Copies of those invoices are enclosed; however, the City has redacted information protected by the attorney-client privilege pursuant to KRS 61.878(1)(l) and 05-ORD-049.

b. the contract he was hired under;

The City does not have a copy of such a contract on file; however, enclosed is a copy of the Council's February 19, 2007 meeting minutes, which reflect the Council's appointment of Mr. Moloney as City Attorney. See also the invoices produced in response to item "a" of your letter, as noted above, which reflect the hourly rates under which Mr. Moloney's firm has provided legal services to the City.

c. copies of all cancelled checks [used to pay him] at any time;

The City assumes you mean copies of all cancelled checks paid to Mr. Moloney's firm. Copies of those checks are enclosed. Please note that the City has redacted copies of checks that do not concern Mr. Moloney's firm, and also has redacted bank account numbers from the enclosed copies pursuant to KRS 61.878(1)(a). 2

e. all bills paid by the Council to him;

Please see the City's responses to items "a" and "c" of your January 22nd letter, which are set out above.

f. an explanation of all sources of money used to pay him came from [sic], a copy of all closing documents for any buildings sold during his tenure, copies of all documents which concern those closings;

The "explanation" you have requested would require the City to create a record that does not already exist. Therefore, the City declines to produce such a record. See 96-ORD-139. Regarding the remainder of requests under this item, the City has not sold any buildings since Mr. Moloney became City Attorney. Therefore, the City has no documents to produce in response to this request.

g. a listing of how much money is in all bank accounts and the location of where the bank accounts reside;

Copies of the City's bank statements as of January 30, 2009 are enclosed. Please note that the City has redacted account numbers from those statements pursuant to KRS 61.878(1)(a).

h. a statement which describe[s] the sum of all money he has been paid by the Coun[ci]l to date signed by [Mayor] Bozarth;

The statement you have requested would require the City to create a record that does not already exist. Therefore, the City declines to produce such a record. See 96-ORD-139. Without waiving this objection, please see the City's responses to items "a" and "c" of your January 22nd letter, which are set out above.

i. a listing of all properties the Council now intends to sell and their location, as well as any correspondence pertaining to them now current; and

The City has recently advertised for bids on the Old Midway Sewer and Waste Treatment Plant. A copy of that advertisement as it appeared in The Woodford Sun is enclosed. Since the City has neither rejected all bids nor accepted one for that property, the City declines to produce any "correspondence pertaining to" those bids, pursuant to KRS 61.878(1)(i) and 08-ORD-144. There are no other properties relevant to your request.

j. a statement by Mr. Moloney attesting that his law firm; [sic] Sturgill, Turner, Barker and Moloney, either any of his lawyers, or he, himself have never in the past and are not currently involved with the legal affairs of Dennis Anderson. If they have, who these attorneys are and what the nature of their business with them has been, as well as a copy of any wa[i]vers Mr. Moloney obtained from the Coun[ci]l absolving hi[m] of conflict of interest.

The City declines to produce anything in response to this request for a number of reasons. First, your request calls for creation of a record that does not already exist, namely, a statement by Mr. Moloney. See 96-ORD-139. Second, as stated above, to the City's knowledge there are no waivers in the City's possession that are responsive to your request. . . .

Upon receiving notification of Ms. Burstein's appeal, the City essentially adopted its original response. Because the City is not required to produce nonexistent or preliminary records nor is the City required to honor a request for information, or compile a list or create a record in order to comply with a request, and the City has redacted only exempt information from the records disclosed, its disposition of Ms. Burstein's request is affirmed consistent with governing precedents.

Attorney-client Privilege

In a series of decisions, the Attorney General has recognized that records which can generally be characterized as financial and operational records must be made available for public inspection. See 05-ORD-155; 04-ORD-113; 04-ORD-084. For example, in 02-ORD-208, this office expressly held that KRS 61.878(1)(i) and (j) do not extend to financial and operational records like "written employment contracts or agreements, billing statements or bills for services, or records documenting payment for services." Id., p. 4. Such records, inasmuch as they relate to "amounts paid from public coffers are . . . uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. See OAG 91-7, p. 3 (holding that "records of bills paid, payroll checks stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ).

As a corollary to this position, the Attorney General has long recognized the right of the public to inspect records documenting payments made by a public agency to attorneys hired to represent it. 00-ORD-104, p. 7. See OAG 92-14; OAG 85-91; OAG 82-169. Although the attorney-client privilege, codified at KRE 503, is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 "the privilege does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10. See 93-ORD-58, p. 4 (holding that public is "entitled to review the contracts, vouchers, and other business records of a public agency, including records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys" but agency is permitted to redact substantive legal matters). As the Attorney General has consistently recognized, those records "which reflect the general nature of legal services rendered" are not exempt; rather, only those records, or portions thereof "which disclose substantive matters protected by the attorney-client privilege, and are exempt under KRS 61.878(1)(l), can properly be withheld. " 01-ORD-56, p. 9; OAG 92-14. Pursuant to KRS 61.878(4), public agencies must "separate the exempt material from the nonexempt material, and release the latter for inspection. " Id.

In attempting to provide additional guidance to public agencies making this determination, the Attorney General has observed:

We believe the distinction between confidential and nonconfidential matters drawn in [ In the Matter of Witnesses before the Special March 1980 Grand Jury, 729 F.2d 489 (7th Cir. 1984)] is instructive. Although the court recognized that information regarding fees is not generally protected by the attorney-client privilege, it also recognized that such records might contain information protected by the privilege. The court noted that billing sheets or time tickets "which indicate the nature of documents prepared, issues researched or matters discussed could reveal the substance of confidential discussions between attorney and client." Id. at p. 495. . . . [W]e believe that [a public agency] need only permit inspection of records which describe, in general terms, the nature of the services rendered as, for example, "research," "witness interviews," "discussion with client." It may, of course, exercise its discretion in redacting any portion of its records which disclose substantive matters and litigation strategy. This resolution of the issue . . . subserves both the agency's interest in protecting privileged information and the public's interest in monitoring the city's activities to [e]nsure that it is properly executing its statutory function and pursuing the public good. (Citation omitted.)

OAG 92-92, p. 4 (copy attached); 05-ORD-216; 05-ORD-029. In redacting privileged information from the legal invoices provided to Ms. Burstein, the City relied on the analysis found in 05-ORD-049, which includes the foregoing, and, in our view, is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference.

Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked the City to provide us with unredacted copies of the invoices disclosed for in camera review. See also Cabinet for Health and Family Services v. Scorsone, Ky. App., 251 S.W.3d 328, 330 (2008). Having reviewed the 93 pages of invoices, the Attorney General finds that each redacted "Statement of Services" reflects, in general terms, the nature of the services provided, such as, "Appear for/attend," "Communicate (other external)," "Communicate (with client)," "Communicate (in firm)," "Plan and prepare for," "Draft/revise," "Review," and "Research." Each monthly invoice also discloses a "Recapitulation" of billable hours, an itemized listing of related "Costs" (transcription, copying, online research, travel), the date of the service provided, the initials of the attorney, and the amount of time worked. As in 05-ORD-049, this office finds that redacting information such as the names of individuals with whom the City Attorney communicated, the subject matter discussed, topics of research, etc., the disclosure of which "could possibly compromise the agency's [position] by providing insight into its attorneys' [Mr. Moloney's firm] thought processes and legal strategy and could properly be classified as substantive legal matters protected by the attorney-client privilege and work product doctrine" constituted a proper exercise of the agency's discretion. Id., p. 4.

Nonexistent Records

In denying Ms. Burstein's request as to "waivers," the contract 4 under which Mr. Moloney was hired, and "all closing documents for any buildings sold during his tenure," the City has affirmatively indicated that no such records exist. As long recognized by the Attorney General, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 04-ORD-036, p. 5; 06-ORD-040. To clarify, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the City has twice asserted here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3. On multiple occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4.

With regard to statutory obligations of a public agency when denying access due to nonexistence (or lack of possession) of the records, the analysis contained in 07-ORD-190 is controlling; a copy of that decision is attached hereto and incorporated by reference (along with a copy of 07-ORD-188 upon which the former decision was premised). In the absence of the requisite prima facie showing, the Attorney General must affirm the denial of Ms. Burstein's request as to all nonexistent records being sought in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-190 and 07-ORD-188. To hold otherwise would result in the City "essentially hav[ing] to prove a negative" in order to refute any claim that such records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 3. To the extent Ms. Burstein has implicitly questioned the content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3.

Requests for information

In light of this determination, the question becomes whether the City erred in declining to provide the requested "explanation" (item f.) and "statement[s]" (items h. and j.). 5 Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Elaborating upon this position, the Attorney General has recognized:

Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.

04-ORD-080, p. 13, citing OAG 87-84.

Of particular relevance here, this office has long recognized "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., 93-ORD-50; OAG 90-101; OAG 85-51; OAG 81-333; OAG 79-547; OAG 76-375. At page 2 of 93-ORD-50, the Attorney General recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position.

However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). Echoing this view, the Attorney General has recognized that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. However, the City appears to have already provided Ms. Burstein with access to any existing nonexempt records which are potentially responsive to item h. (as well as g. and i.); the City is not required to compile information or create a record to satisfy items f. and j. of the request (seeking an "explanation" and "statement," respectively) nor issue written responses to questions. See 05-ORD-272. No violation occurred.

Correspondence related to bids on specified property

The final question presented is whether the City erred in denying access to any correspondence related to bids on the Old Midway Sewer and Waste Treatment Plant "[s]ince the City has neither rejected all bids nor accepted one for that property." In so doing, the City relied on the analysis found in 08-ORD-144 (holding that Kentucky State Fair Board was entitled under KRS 45A.085(7) and 200 KAR 5:307, Section 4, to withhold the requested proposals until such time as it had either rejected all of the proposals or accepted a proposal and awarded a contract notwithstanding procedural deficiencies) without further elaboration; accordingly, this office must infer that the City is currently involved in the process of competitive negotiation and is operating under the procedural framework outlined at KRS 45A.085. 6 Assuming that is the correct inference to be drawn here, this office affirms the City's denial in this regard as well based on the reasoning of that decision, a copy of which is attached hereto and incorporated by reference. Compare 05-ORD-001. Because KRS 45A.085(7) prohibits, "during the competitive negotiation process, the release by the public agency of information derived from proposals submitted by offerors[,]" the City is authorized to withhold the requested proposals and related correspondence. OAG 85-68, p. 3. However, the City is required to make available for public inspection "those records associated with the competitive negotiation process, which are not otherwise precluded from inspection, at the final conclusion of the process (the final rejection of all proposals or the acceptance of a proposal and the awarding of a contract)." Id.

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.

Maralyn BursteinTom BozarthPhillip M. MoloneyJoshua M. Salsburey

Footnotes

Footnotes

1 In accordance with KRS 61.880(1), the City issued a written response within three business days; however, the City invoked KRS 61.872(5), the only provision that authorizes postponement of access beyond three business days, noting that "a substantial amount of the information sought . . . may be exempt from disclosure, in whole or in part, by application of the attorney-client privilege pursuant to KRS 61.878(1)(l)." Although the City agreed to "mail a full response" to the request "on or before February 13, 2009," by letter dated February 12, 2009, the City advised that it needed "additional time for review and redaction of information" but would mail its final response "on or before February 20, 2009."

With regard to application of KRS 61.872(5) generally, the analysis contained in 07-ORD-179, a copy of which is attached hereto and incorporated by reference, is controlling. Although the question is a close one in our view, particularly since the City failed to meet its initial deadline, this office finds that a final response was provided in a "reasonable time" on the facts presented. Id., p. 8 (citations omitted) ("Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a 'reasonable time for inspection turn on the particular facts presented. '")

2 Ms. Burstein omitted the "d" from her list and the City responded in kind; accordingly, the lettering of the original is maintained here to avoid confusion. Restatements of the items requested, as well as the alternative bases for denial, consideration of which is unwarranted given our determination relative to each of the primary arguments, have been omitted from the City's response set forth above.

Because checks "that do not concern Mr. Moloney's firm" would not be responsive to Ms. Burstein's request, the City did not err in redacting those from the records provided.