Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Logan County Public Library violated the Open Records Act in partially denying Lynn Dawson's December 8, 2009, request for copies of "the budget for the years 2007, 2008, and 2009 . . . [and] all receipts of revenues and expenditures for the years 2008 and 2009." The Library released "26 pages with an itemized roster" of amounts the disclosure of which is purportedly required by "KRS 424.440 Section 2." This statute does not exist and therefore cannot operate as a prohibition or restriction on public access within the meaning of KRS 61.878(1)(l). Accordingly, we find that the Library's response violated both the procedural and substantive provisions of the Open Records Act.
In a response issued on December 9, 2009, the Library invoked "KRS 424.440 Section 2" in support of its partial denial of Mr. Dawson's request. The Library relied on the following language extracted from "KRS 424.440 Section 2":
The total amount of funds disbursed during the fiscal year to each individual payee. The list shall include only aggregate amounts to vendors exceeding one thousand dollars ($ 1,000).
Shortly thereafter, Mr. Dawson initiated this appeal objecting to the paucity of records produced. In supplemental correspondence directed to this office, Logan County Public Library Director Linda Kompanik explained that upon receipt of Mr. Dawson's request, she discussed this matter with the Library's Board of Trustees "and was instructed to give him the items described in KRS 424.440." Additionally, she advised that "anything more would fall under the general requirements under the ORA that the Library is not required to compile or create documents that do not already exist." Respectfully, we disagree.
To begin, the Library's original response to Mr. Dawson's request was deficient insofar as it did not "include a statement of the specific exception authorizing the withholding" of records not disclosed to Mr. Dawson, or "a brief explanation of how the exception applies to the record[s] withheld." KRS 61.880(1). Although KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," KRS 424.440 does not exist as an enactment of the General Assembly and therefore cannot operate as a prohibition or restriction on access. Accordingly, the Library advances no legally recognized basis for partial nondisclosure of the records identified in Mr. Dawson's request, and its original response constitutes a violation of KRS 61.880(1).
It appears that the Library intended to rely on KRS 424.220 which contains the quoted language at subpart (2)(b). That provision, entitled "Financial Statements," falls under the portion of the Kentucky Revised Statutes dealing with "Matters Required to be Published." It imposes upon "every public officer of any school district, city, consolidated local government, county, or subdivision, or district less than a county, whose duty it is to collect, receive, have the custody, control, or disbursement of funds . . . collected from the public in the form of rates, charges, or assessments for services or benefits" the duty to prepare, at the expiration of each fiscal year, "an itemized, sworn statement of the funds collected, received, held or disbursed by him during the fiscal year just closed" for publications per KRS 424.220(6), (7), or (8). KRS 424.220(2)(b) is not a confidentiality provision operating with KRS 61.878(1)(l) to authorize nondisclosure of public records but is instead a mandatory publication provision imposing additional duties on the enumerated public officers separate and apart from their duties under the Open Records Act. The Library's reliance on KRS 424.220(2)(b) to support nondisclosure of the other financial records identified in Mr. Dawson's request was misplaced and its partial denial of that request therefore constituted a violation of the Open Records Act.
We reject the alternative argument advanced by the Library in its supplemental response. Although Ms. Kompanik is correct in her understanding that the Open Records Act does not impose a duty on public agencies to create records that do not already exist, the Act does not relieve public agencies of the duty to compile records that do already exist. We trust that the Logan County Public Library maintains copies of records documenting public moneys received and expended in a manner consistent with proper records management practices set forth in Records Series L4992 through L5009 of the General Records Retention Schedule for Local Government. Such records reflect amounts paid into and out of public coffers and are generally recognized as "uniquely of public concern." See OAG 90-30, p. 3; 95-ORD-80; 99-ORD-152; 04-ORD-169; 06-ORD-201; 09-ORD-166. No basis exists for issuing a blanket denial of a request for such records, and it is incumbent on the Library to locate, retrieve, redact statutorily protected information such as social security numbers, and make available for inspection or mail copies, upon prepayment of reasonable copying charges not to exceed ten cents per page and postage, financial records responsive to Mr. Dawson's request. Until it has done so, the Library remains in 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 proceeding.
Lynn DawsonLinda KompanikTom Noe