Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Mt. Vernon violated the Kentucky Open Records Act in the disposition of Richard Courtney's June 16, 2009, request for receipts and information relating to City expenses. We conclude that the City's initial Response was in violation of the Act, but that it ultimately complied with its substantive obligations under the Act after the filing of this appeal.
Mr. Courtney's request to the Mayor of Mt. Vernon was headed "Open records request" and read as follows:
Expenses (Gen. Fund)
Under the May, 2009 YTD expenses (Att. #1)
* Please provide receipts for the $ 2612.01 listed under (coal serv-city park)
* Please provide receipts for the $ 153,586 YTD (May, 2009) listed under (GF trans to w/s payback). Or explain these expenses since I see no revenue for that amount in W/S.
* The YTD May summary total of $ 923,956.86 is not the sum total of the line item expenses. Please supply the line items that are not included in the total & why they are not included.
Misc.
The Gen. fund YTD March (MISC) totals were $ 211,824.03. The actual expenses in Apr. Were [sic] $ 2256.27 & the actual's for May were $ 1385.22. These total $ 15,465.52 YET the May YTD is only $ 62,437.70. Please explain in what line I can find the missing 4153,027.82.
Water Fund (Att #2)
Under YTD expenses on line item 69 bond interest, you show $ 32,000. The monthly totals don't add up to that amount. Is this in error?
Gen. Fund
In April 2008 revenue (att #3) the new firehouse line reflects $ 100,000 YTD
In May (att #4) & in June (att #5) the revenue for this line item is NOT included. Please provide what line item I can find this revenue.
The May 2008 expenses reflect YTD firehouse of $ 335,628.22. Please provide data (line items) that reflect the city income (via Grants or other income) that paid these expenses & when that money was received. If this revenue never showed in reports (since it was Y/E fiscal year) did it go directly into the Gen. Fund bank account. ?
Mr. Courtney then gave his signature and printed name along with the date.
In its response on June 18, 2009, the City per Mayor Clarice R. Kirby replied as follows:
The City regrets to inform you that your request dated June 16, 2009 must be denied pursuant to KRS 61.872 (6) to KRS 61.880 and Zink v. Comm., Ky. App., 902 S.W. 2d825.
It should be pointed out that you are neither a citizen nor taxpayer of this city and the city has fully responded to your more than one request per week since sometime last year.
Your requests have placed an unreasonable burden on the City and the City has reason to believe the requests are intended to disrupt other essential functions of the City.
Mr. Courtney initiated this appeal on June 22, 2009, stating: "I personally do not agree that [the Mayor's] reasons are legal & therefore should not override my right to obtain any documents that are public."
In the City's response to the appeal, dated July 2, 2009, Mayor Kirby added the following remarks:
Mr. Courtney's letter of June 16, 2009 is not really an open records request, but is a general request for explanations which the City is not required to furnish.
Invoices for the 1st request have been mailed to Mr. Courtney.
The second request for receipts for $ 153,586.00 YTD is really a request to explain the expenses and a comment that he can't understand the document he has attached.
The third starred statement requests the City to identify line items that are not included in a total. The City, I believe, has furnished the documents and that Mr. Courtney cannot understand is again not the City's problem.
The next item requests an explanation because he cannot find a missing $ 4 million. There is no such amount and the City is not required to explain.
The next item is a question of whether or not something is an error in the water fund--not an open records request.
The next item is a request to provide "what line item I can find this revenue." That is not an open record request.
The last paragraph is not an open records request.
Subsequently, in responding to an inquiry from this office, Mayor Kirby provided Mr. Courtney with copies of checks and deposit slips which she stated were the "only available receipts" for the "$ 153,586 YTD" alluded to in the second item of Mr. Courtney's request.
We note first that the City's initial response to Mr. Courtney was not consistent with the Open Records Act. There is no basis in the Act for a city's denial of a request for records merely because the applicant is not a citizen or taxpayer of the municipality. On the contrary, the identity of the applicant and the purpose for which the records are requested are generally irrelevant. 05-ORD-125. Furthermore, the City's claim of an unreasonable burden under KRS 61.872(6) is untenable as presented. There is nothing in the record to show that Mr. Courtney is abusing the open records process, causing an unreasonable burden, or disrupting essential functions of the City, other than the City's indirect statement that he makes "more than one request per week" and bare allegation of some "reason to believe" he intends to disrupt essential functions. This limitation on the right of inspection must be "sustained by clear and convincing evidence. " KRS 61.872(6). Since the City has not met this burden, its original bases for denial were unsupported by the Open Records Act.
With regard to the City's response to this appeal, however, it appears that all records responsive to Mr. Courtney's request have now been provided. The majority of his inquiries were mere requests for information or for the City to explain the documents. As noted in previous decisions of this office, requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
Accordingly, while the initial response to Mr. Courtney's request was in violation of the Open Records Act, the City's ultimate disposition of the request was consistent with the Act.
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.