10-ORD-130 | 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 Laurel County Fiscal Court violated the Kentucky Open Records Act in partially denying Gary Wayne Hall's May 27, 2010, request for a copy of the "letter that I signed withdrawing my name from consideration for the 2nd district constable [sic] office vacancy in March 2009," and "[a]ll contracts, invoices or bills, checks, expense reports, [etc.] to or from James Starks and/or Civil and Criminal Investigations, LLC, or other associated companies or individuals." In a timely written response, Laurel County Judge/Executive Lawrence Kuhl advised Mr. Hall that he would "try to locate your letter you gave to me withdrawing your name from consideration for the 2nd District Constable vacancy," and that he would send a copy if he located it; 1 however, the Fiscal Court denied Mr. Hall's request as to the specified financial records "due to the continued and ongoing civil and/or criminal investigation." Although the Fiscal Court cannot be said to have violated the Act insofar as it cannot produce a record(s) which it cannot locate or which does not exist, its failure to establish an effective system for ensuring records preservation constitutes a subversion of the intent of the Act. In addition, the Fiscal Court's disposition of Mr. Hall's request for the specified financial records was both substantively incorrect and procedurally deficient.

Asserting that Judge Kuhl's response violates the Act "on multiple counts," and noting that Judge Kuhl failed to cite the specific exception authorizing the denial of his request for contracts, invoices, etc., Mr. Hall initiated this appeal by letter dated June 4, 2010. In his view, KRS 61.878(1)(h), 2 upon which Judge Kuhl presumably relied, is being used "to delay or impede the exercise of rights granted by" the Open Records Act because "release of this information may constitute an embarrassment to the Judge Executive and fiscal court members since it has chosen to pay for an investigation which is already being conducted at no charge to the county by state and federal authorities."

Upon receiving notification of Mr. Hall's appeal from this office, Judge Kuhl responded on behalf of the Fiscal Court, reiterating that he received the letter in dispute; however, Judge Kuhl further advised that he has "been unable to locate our copy of the letter and we are not sure that we still have this letter. If we do in fact locate the letter we will immediately forward a copy to Mr. Hall." In addressing the remainder of Mr. Hall's request, Judge Kuhl advised that no such contracts, invoices, etc. existed "at the time the request was made or the response was filed." However, on June 5, Judge Kuhl "did receive an invoice from James Starks, Civil and Criminal Investigations, LLC for services rendered to Laurel County, Kentucky." According to Judge Kuhl, on December 19, 2009, the Fiscal Court voted at its regular meeting to hire Mr. Starks/CCI, "to investigate the construction of the Emergency Operations Center (EOC) building and the Decon purchases." For over six months, Judge Kuhl explained, "investigations have been ongoing by the Office of Homeland Security, the Federal Bureau of Investigation[], the Laurel County Fiscal Court and various other state agencies into matters which occurred in the Emergency Management and Public Safety Office in Laurel County." 3 The Laurel County Grand Jury has issued one criminal indictment "and when all investigations are completed further criminal and/or civil actions may result." In the Fiscal Court's view, "disclosure of any communications or documents concerning the [ongoing] investigations would harm the agencies and their investigations."

As the Attorney General has long recognized, a public agency is not required to honor a request for nonexistent records. 04-ORD-036, p. 5; OAG 83-111. In addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has consistently observed that a public agency's inability to produce records "due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. " 01-ORD-38, p. 9 (citations omitted)(emphasis added). With regard to statutory obligations of a public agency when denying access due to nonexistence of the records generally, the analysis contained in 07-ORD-188 is controlling; a copy of that decision is attached hereto and incorporated by reference. Although the Fiscal Court cannot be said to have violated the Act in failing to produce a nonexistent record(s), it violated KRS 61.880(1) in failing to affirmatively indicate whether the requested letter still exists, and whether any responsive invoices, etc. existed at the time of the request. 4 09-ORD-180.

The intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171. Pursuant to KRS 61.8715 , the enactment of which this office characterized as a "watershed in the evolution of the Open Records Law[,]" public agencies are required "to manage and maintain [their] records according to the requirements" of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 - 171.740, in order "to ensure the efficient administration of government and to provide accountability of government activities. . . ." 94-ORD-121, p. 8. Given the statutorily recognized interrelationship between records management and records access, the instant appeal raises an issue regarding the records management practices of the Fiscal Court insofar as it has been "unable to locate" its copy of the requested letter. "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." Id., p. 5. However, since July 15, 1994, when the amendments to the Open Records Act took effect, this office has applied a higher standard of review to denials based upon the nonexistence of the records being sought. In order to satisfy its burden of proof under KRS 61.880(2)(c), a public agency must, at a minimum, document what efforts were made to locate the missing records, or explain by what authority the records were destroyed. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement. Although the record is devoid of any objective basis to suggest bad faith on the part of the Fiscal Court, it has not attempted to rebut this presumption here.

The letter at issue in this appeal is properly characterized as "Routine Correspondence, " and therefore falls within the parameters of Series No. L4955 on the Local Government General Records Retention Schedule, 5 which "consists of correspondence that is of a non-policy nature and deals only with the day-to-day general operations of an agency. . . . General correspondence [as it is also known] is incoming and outgoing correspondence that may consist of: letters, notes, [etc.]." The Disposition Instruction for Routine Correspondence provides that it must be retained for a period of two years and then destroyed. Because the Fiscal Court has offered no explanation for the apparent loss or premature destruction of the requested letter, it has not overcome the presumption of records mismanagement.

Although the Attorney General does not find, as a matter of law, that the Fiscal Court violated the Open Records Act by failing to provide Mr. Hall with a copy of the letter, this office does find that the Fiscal Court subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for managing and maintaining its records, thereby frustrating the public's right of access. Ultimately, this office cannot afford Mr. Hall the relief he seeks; the Attorney General is not empowered to declare the inability of the Fiscal Court to produce a nonexistent record(s) a violation of the Open Records Act or to compel the Fiscal Court to maintain a record(s) for a specific period of time. Inasmuch as the latter prerogative resides with the KDLA, the Attorney General respectfully defers to that entity on the records management issues raised. The matter is hereby referred to the Department for Libraries and Archives for additional inquiry as that agency deems warranted consistent with KRS 61.8715.

As previously indicated, the Fiscal Court also initially violated the Act from a procedural standpoint in relying implicitly upon KRS 61.878(1)(h) as the basis for denying Mr. Hall's request (apparently without conducting a search of any kind) for the specified financial records given that no such records existed at the time of the request. Because the Fiscal Court now possesses the invoice, and was afforded the opportunity to build its case in response to Mr. Hall's appeal, but maintained that the invoice could properly be withheld in its entirety under KRS 61.878(1)(h) without demonstrating any harm that would result from disclosure, its ultimate disposition of the request was also substantively incorrect.

In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed that "[i]n order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or an agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Id., pp. 1-2. 6 See 02-ORD-179; 00-ORD-196. In University of Kentucky v. Courier-Journal & Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test.

Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 7 In sum, the issue of whether a public agency has satisfied the requisite criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three components of the test contained therein. Even assuming for the sake of argument that the Fiscal Court properly invoked KRS 61.878(1)(h) on behalf of the law enforcement agencies investigating the matter, 8 and that the invoice was "compiled in the process of detecting and investigating statutory or regulatory violations," the Fiscal Court has not demonstrated how disclosure of the invoice could possibly harm the subject investigation. The fact that the investigation is ongoing is not enough, standing alone, to justify a denial. 07-ORD-147, p. 8.

Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the undersigned counsel asked Laurel County Attorney Elmer Cunnagin, Jr. to provide this office with a copy of the invoice withheld for in camera review. Although this office cannot reveal the specific information contained in that invoice, suffice it to say that it merely contains the dates on which services were rendered, a brief description of those services (including amount of time spent and hourly rate), and the amounts owed, similar to what you might find in any billing statement. In a long line of decisions, the Attorney General has recognized that records generally characterized as financial or operational records must be made available for public inspection. 04-ORD-113; 04-ORD-084. For example, in 02-ORD-208, this office expressly held that the protection afforded by KRS 61.878(1)(i) and (j) does not extend to financial and operational records such as "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. In short, "wherever public funds go, the public interest follows." OAG 76-648. 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" ); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law").

As a corollary to this position, the Attorney General has long recognized the public's right to inspect records of disbursements made by a public agency to attorneys hired to represent it. 00-ORD-104, p. 7; 05-ORD-155; 95-ORD-18; OAG 82-169. Although the attorney-client privilege, codified at KRE 503, is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), "the privilege does not extend to contracts and billing records of attorneys working for a public agency. " 97-ORD-66, p. 10. In the event such invoices "disclose substantive matters protected by the attorney-client privilege, and exempt under KRS [61.878(1)(l)], the exempt material should be separated from the non-exempt materials, and the non-exempt materials [should be] released for public inspection [per KRS 61.878(4)]." Id. In 04-ORD-084, this office removed any doubt as to the applicability of this reasoning to records generated by "professional service corporations," such as accounting firms, or, in this case, a private investigator, holding that the public's right to access records documenting public funds expended for the rendition of professional and legal services is beyond dispute. Id., p. 5. As the Attorney General has consistently recognized, those records "which reflect the general nature of legal [or professional] services rendered, [such as the subject invoice] " are not exempt; rather, only those records, or portions thereof "which disclose substantive matters protected by the attorney-client privilege [or the disclosure of which would demonstrably harm the investigation, if any,] . . . can properly be withheld. " 01-ORD-56, p. 9; OAG 92-14. Here, as in 03-ORD-015, a copy of which is attached hereto and incorporated by reference, the public agency has not attempted to justify its denial with specificity and has failed to satisfy its burden of proof under KRS 61.880(2)(c) relative to KRS 61.878(1)(h).

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.

Gary Wayne Hall, Jr.Lawrence KuhlElmer Cunnagin, Jr.

Footnotes

Footnotes

1 Mr. Hall also requested a copy of the "letter from [the Judge Executive's] office to the Kentucky Attorney Generals [sic] office AG open meetings decision [sic] 09-OMD-171." Mr. Kuhl enclosed the "two (2) letters" that he mailed to the Office of the Attorney General in relation to 09-OMD-171 with his response; accordingly, the related issues are moot per 40 KAR 1:030, Section 6.