Request By:
James F. Francis
Robert D. Marshall
Keith Bartley
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Floyd County Judge/Executive Robert D. Marshall violated the Open Records Act in the disposition of James F. Francis's July 15, and August 14, 2009, requests for records relating to named individuals, county health insurance, and advertisements for bids. For the reasons that follow, we find that the record on appeal does not establish a clear violation of the Open Records Act, but that the County Judge's duties under the Act will not be fully discharged until he, or his delegate, locates, retrieves, and produces for Mr. Francis's inspection and copying those records that are responsive to his requests.
In his July 15 letter to Judge Marshall, Mr. Francis requested copies of records, and not answers to questions, documenting:
. bids for all county employee health insurance received since Judge Marshall took office;
. advertisements for bids submitted by Judge Marshall, or submitted at his direction, to the Floyd County newspaper with the largest circulation;
. the insurance agency selected by the Floyd County Fiscal Court;
. minutes of the Floyd County Fiscal Court at which Eddie Case was hired;
. Eddie Case's salary and "check receipts" relating to his employment.
Judge Marshall issued a narrative response to Mr. Francis's request on July 20, 2009, advising him that "there are no bids for health insurance as KRS 424.260(1) does not require bids for professional services." He characterized Mr. Francis's request for advertisements for bids as "very broad," and asked that he "be more specific and state in writing which type of bids" he sought. In response to Mr. Francis's third request, which he again characterized as "vague and unclear," Judge Marshall stated that "the insurance agency of the Floyd County Fiscal Court is Hatton-Allen Insurance." He denied the existence of records relating to Eddie Case, indicating that Mr. Case "is a volunteer and not an employee of the Floyd County Fiscal Court."
In his July 15 letter to Judge Marshall, Mr. Francis requested "documented information" verifying Mona Case's employment, including her years of employment, her job title, her work station, and her salary/wages. Judge Marshall again responded in narrative fashion on August 18, advising Mr. Francis that "Mona Case is not an employee of the Floyd County Fiscal Court[, but is instead] an independent contractor. " Continuing, Judge Marshall noted that she "submits a bill to the . . . Fiscal Court for payment for services rendered for clean up work done at . . . Allen Park." At her $ 7.00 per hour rate of pay, Judge Marshall stated, "she submitted invoices and received $ 3,612.00 in the period from May 2008 to October 2008, and $ 4, 242.00 in the period from March 2009 to August 2009." In both cases, Judge Marshall indicated that the invoices were approved by the fiscal court resolution on the "monthly claims list," and were available for "review[] at the office of the Floyd County Clerk."
Shortly thereafter, Mr. Francis initiated this appeal questioning Judge Marshall's characterization of his requests and agreeing to "reimburse this agency for any copies to be sent through the United States Postal Service to [him]." In supplemental correspondence directed to this office following receipt of our notification of Mr. Francis's appeal, Judge Marshall expressed the view that the County "fully responded to both open records requests made by Mr. Francis," noting that the latter had not clarified his July 14 request or attempted to review responsive records in the Floyd County Clerk's office. In addition, he expressed the belief that Mr. Francis's requests "are a product of [his father's lawsuit against the fiscal court], and . . . are simply a form of legalized harassment . . . ." 1 By letter dated September 8, 2009, Mr. Francis contested Judge Marshall's failure to provide him with a copy of this supplemental response per 40 KAR 1:030 Section 2. 2
Unable to resolve this dispute based on the scant record on appeal, this office requested additional documentation from Judge Marshall on September 10. We asked:
1. Does the Floyd County Fiscal Court maintain a personnel file on Mona Case, or, at a minimum, a contract or memorandum of agreement (understanding) with Ms. Case delineating her duties and other contractual terms?
2. Please describe the Floyd County Fiscal Court's recordkeeping system as it relates to bid documents.
3. Please describe the services Eddie Case renders as a volunteer for the Floyd County Fiscal Court, and provide this office with any documentation relating to Mr. Case and/or these services.
Judge Marshall responded to our inquiries by letter dated September 17, stating that because she is an independent contractor the County maintains no personnel file for Mona Case; that the fiscal court regularly advertises for bids for services (other than professional services), supplies, and/or goods exceeding $ 20,000.00, that opened bids are filed in the County Judge's office, and that resolutions accepting bids are filed in the County Clerk's office; and that because he volunteers his services to assist in the maintenance of Allen Park, the County maintains no personnel file or other documentation for Eddie Case.
In denying Mr. Francis's requests relating to Mona and Eddie Case, the fiscal court asserted that no responsive records exist other than invoices submitted by Mona Case as an independent contractor. The fiscal court did not respond to our inquiry concerning the existence of a contract or memorandum of agreement (understanding) with Ms. Case. Regardless of the propriety of this practice, records documenting the expenditure of some $ 7,854.00 to Ms. Case in a period of twelve months reside in the fiscal court's custody and must be produced for Mr. Francis's inspection as described below .
In responding to Mr. Francis's requests for advertisements for bids generally, and health insurance bids particularly, the fiscal court demurred, seeking greater specificity as to the types of bids requested. The fiscal court subsequently advised this office that opened bids are maintained in the Judge/Executive's office and resolutions accepting bids are maintained in the county clerk's office, but did not respond to our inquiry concerning advertisements for bids. At Record Series L5015, the General Records Schedule for Local Government, established by the Archives and Records Commission pursuant to KRS 171.420(3), and adopted by reference into 725 KAR 1:061, provides for an indefinite retention period for successful bid files that may include legal notices that appear in newspapers. Such records may only be destroyed "three years after specifications [are] met or [the] completion of [the] contract or agreement and audit." Because Mr. Francis limited his request to advertisements for bids for 2007, 2008, and 2009 (to date), those records, including legal notices that appeared in the newspaper, reside somewhere within the county, and Mr. Francis must be permitted to inspect and copy them as described below .
Although it does not impose an obligation on a public agency to create a record that does not exist, the Open Records Act contemplates records access by means of on-site inspection or receipt of copies through the mail. KRS 61.872(3) thus provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In construing the latter provision, this office has regularly observed:
[A] requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency.
97-ORD-46, p. 3.
The Floyd County Judge/Executive provided narrative responses to Mr. Francis's requests and extended an offer to him to conduct an onsite inspection of records containing the information he seeks relative to Mona Case and advertisements for bids. Because he resides in Floyd County, the County Judge's offer was consistent with the provisions of the Act. However , to insure efficacious and meaningful inspection, it is incumbent on the County Judge, or an employee to whom he delegates the task, to segregate only responsive records for Mr. Francis's inspection.
In addressing the issue of commingling nonresponsive records with responsive records, this office in 07-ORD-105 stated:
? In at least three open records decisions previously issued by this office, the Attorney General has determined that public agencies "improperly equated an obligatory search for [responsive records] with a request for nonobligatory research to be performed." See 01-ORD-51, p. 5; 02-ORD-150; 06-ORD-117. The facts giving rise to 02-ORD-150, and the holding in that decision, are particularly apropos . There, the requester submitted a series of requests for records relating to a formal complaint to the Department of Education by the Fort Thomas Independent School District. The District responded by producing a large volume of records, but failed to "identi[fy], segregat[e], and disclos[e] the specific records identified in [the] request that [was] the subject of [the] appeal." Id. at 1. At page 7 of the decision, we held that although:
For this reason, in 02-ORD-150 we concluded, "the District's efforts fell short of the statutory requirements codified at KRS 61.880(1)." See also, 08-ORD-032.
Here, as in the referenced open records decisions, the Floyd County Judge/Executive is required to immediately locate, retrieve, and make available for Mr. Francis's inspection and/or copying all invoices submitted by, and records of payment to, Mona Case, and all advertisements for bids submitted to the newspaper of largest circulation in the county. It will not suffice to set him loose in the county's various records repositories to conduct his own fishing expedition for responsive records. Until the Floyd County Judge/Executive has done so, his duties under the Open Records Act will not be fully discharged.
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.
Footnotes
Footnotes
1 The record on appeal does not support Judge Marshall's claim that Mr. Francis's requests were intended to disrupt the fiscal court's essential functions per KRS 61.872(6) or otherwise harass the fiscal court. Clear and convincing evidence of such an intent must be adduced in support of such a claim and no such evidence is adduced in the instant appeal. Moreover, Kentucky's courts have declared that access to records "does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). The fact that Mr. Francis's father is a party to litigation with the Floyd County Fiscal Court therefore has no bearing on this matter.
2 On September 14, Judge Marshall sent Mr. Francis a copy of his September 8 supplemental response. 40 KAR 1:030 Section 2 provides:
Notice. Upon receiving a complaint, the Attorney General's Office shall send notice to the public agency that a complaint has been filed and a copy of the complaint. The agency may provide the Attorney General with a written response to the issues raised in the complaint. The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request . The Attorney General shall consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2).
(Emphasis added.) Although no penalty is attached to a public agency's failure to transmit a copy of its supplemental response to an open records appeal to the appellant, here Mr. Francis, this omission is inconsistent with the regulatory directive and inimical to the spirit of due process which informs our decision making process.