Request By:
Carl R. Hatfield
Loretta Cornett
Steven Parker Boggs, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Cumberland violated the Kentucky Open Records Act in the disposition of Carl Hatfield's July 8, 2009, and July 15, 2009, requests to inspect certain City records. To the extent that the City failed to respond to Mr. Hatfield's requests or failed to provide him access to the requested records, we find that the City's actions were unlawful.
In his July 8 request, Mr. Hatfield requested "access to the following public records" :
1. End of FY 09 Bank Statements for all active accounts during the period July 1, 2008 through June 30, 2009. This entails the statements issued by the bank to the city with closing dates of June 30, 2009, or during the 12-month period of FY 09.
2. Uniform Financial Reports which were submitted to DLG.
3. Audit report which was completed February 15, 2009.
4. Auditor's Contract which was adopted in December 2008.
5. Gas purchase statements and receipts which itemize costs.
6. Employee health insurance contract.
7. Employee health insurance statement and invoices itemizing costs.
8. A listing of employees with date of hire and current salary.
9. The daily register accounting for monies received and disposed of.
10. Statements and invoices for each telephone account.
11. Statements and invoices for each electrical account.
His subsequent request on July 15, 2009, repeated the above and added the following:
12. A listing of all delinquent service accounts and property taxes
Since receiving the proposed budget prepared by the Mayor, I have requested orally several times to have access to certain financial records. Each time there was a problem with the arrangements and I have not been provided access to these documents. Should a budget workshop be scheduled within the next few days, these documents may be provided to all of the council members. Otherwise, I will expect to have access as requested.
Mr. Hatfield initiated an appeal to this office on August 1, 2009, after having received no response to either request.
The City of Cumberland's response to this appeal was submitted on August 11, 2009, by City Attorney S. Parker Boggs. The City does not claim to have made a written response to either of Mr. Hatfield's requests, but states in pertinent part as follows:
Mr. Hatfield came to City Hall and viewed the records he requested on or about the 22nd day of July, 2009. At that time he requested that some of the requested records be summarized, reformatted and distributed to all council members. It is not the City Clerk's responsibility to summarize and reformat the records that Mr. Hatfield requested to examine. Mr. Hatfield is aware that he must pre-pay for any copies he receives. ? He did not pre-pay for any copies.
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Mr. Hatfield reviewed all of the information in the Clerk's office that was subject to his request.
In correspondence dated August 13, 2009, Mr. Hatfield disputes these assertions, stating:
Mr. Boggs' statements: "he requested that some of the requested records be summarized, reformatted and distributed to all council members." is absolutely incorrect and untruthful.
As my initial complaint with copies of my requests for "access" to records states, I did not desire copies of those documents. I only wanted to view them.
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Finally, he stated: "Mr. Hatfield reviewed all of the information in the Clerk's office that was subject to his request.["] Again Mr. Boggs has been untruthful. I viewed a few gas tickets without a statement but nothing more.
With regard to the factual disputes as to whether Mr. Hatfield was afforded access to the records he requested, this office does not, in general, "act as a trier of fact" and therefore cannot conclusively resolve the dispute as to what occurred. 09-ORD-120, p. 2. On the face of the appeal, however, Mr. Hatfield was entitled to view the records. Since the City does not claim any exceptions to the duty to disclose public records under KRS 61.878, we can only conclude that to whatever extent the City failed to make the requested records available to Mr. Hatfield in the form in which it possessed them, it was in violation of KRS 61.872(1).
What is undisputed is that the City did not make a written response to either of Mr. Hatfield's requests as required by KRS 61.880(1) . By this failure, the City committed a procedural violation of the Open Records 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 proceedings.