Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Danville violated the Kentucky Open Records Act in partially denying Clay P. Moore's June 2, 2010, request for a copy of the "electronic & manual check list[s] for March[, 2010,]" as well as "one (1) copy of the front and back " of five specified checks written on the City's checking account. On appeal, Mr. Moore challenged the City's failure to provide him with "both sides of the [three] cancelled checks." In response, H. Vincent Pennington, III, attorney at law, advised this office that on June 8, 2010, 1 City Clerk Donna Peek provided Mr. Moore "with copies of all documents he requested, by hand-delivery, with the exception of photocopies of the backs of the canceled checks in question and photocopies of the fronts of the checks to HK Construction/Old Castle Precast and HK Construction/Lincoln County Ready Mix." Ms. Peek apparently explained to Mr. Moore in a telephone conversation "that the City receives only digital images of the front of the checks from its bank and does not receive from the bank the original checks or digital images of the backs of checks." In addition, Ms. Peek explained that the two checks dated March 29, 2010, to HK Construction/Old Castle Precast and HK Construction/Lincoln County Ready Mix "had not cleared the City's bank account. " 2 Although Mr. Moore accepted copies of the electronic and manual check lists, he admittedly refused to accept the "copies of the check fronts. "
In sum, the City maintains that it "clearly cannot provide copies of the documents that are not in its possession." Conversely, Mr. Moore believes that he is entitled to "both sides of the cancelled checks." Based upon the following, this office finds that because the cancelled checks are currently maintained by a private agency (the bank), "at the instance of and as custodian on behalf of the [City]," it violated the Act in denying access "merely because those records are not currently in the custody of the [City]." 05-ORD-065, p. 1.
Generally speaking, the financial and operational records of a public agency are open for inspection. 05-ORD-065, p. 9. See 04-ORD-113 (bank statements); 98-ORD-17 (records documenting deposits, interest rates, account fees, and a list of all certificates of deposit or repurchase agreements); OAG 91-7 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 89-91 ("Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets of the city" are among the categories of records properly characterized as "generally recognized public recordation subject to public scrutiny in a city clerk's office"); 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"); OAG 76-648 (holding that "wherever public funds go, public interest follows").
More specifically, in 05-ORD-065 this office rejected the argument being made by the City here in holding that the Lexington-Fayette Urban County Government violated the Open Records Act by denying a request for specific cancelled checks, which it did "not receive" from the bank, and offering a "yellow carbon copy of the actual check that went out," because no responsive documents existed in the possession of the agency. Having recognized that a public agency cannot produce nonexistent records for inspection or copying, this office noted that the LFUCG had not challenged "the status of the cancelled checks, relying instead upon the location of those public records in denying access to the originals," which it acknowledged were "substantially different from the 'yellow carbon copies' offered as a substitute." 05-ORD-065, pp. 9-10. The reasoning found at pp. 9-11 of that decision is directly on point. A copy of 05-ORD-065 is attached hereto and incorporated by reference. "Regardless of where the cancelled checks are located, those records were 'prepared, owned, and used at the instance of' the [City]." Id., p. 11. As in 05-ORD-065, although the bank "is currently acting 'as custodian on the [City's] behalf,' it is the 'nature and purpose' of those records which determines their status as public records. " Id. In accordance with 05-ORD-065, this office finds that the City must provide Mr. Moore with access to copies 3 of the cancelled checks requested upon receipt of the copying fee. 4
A party aggrieved by this decision may appeal it by initiating an 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.
Clay P. MooreHugh CoomerH. Vincent Pennington, III
Footnotes
Footnotes
1 On June 7, 2010, the final day for a response under KRS 61.880(1), Ms. Peek advised Mr. Moore in writing that she would have the records on the following day as the computers were apparently not fully operational. Mr. Pennington further advised on appeal that the City "had moved from a temporary facility at 209 W. Walnut to a new City Hall building at 445 W. Main Street over the holiday weekend of May 28th - June 1, 2010, and the City's network server and related software applications were not fully functioning as of Jun 7th."
2 On appeal, Mr. Pennington advised that Ms. Peek confirmed on June 22, 2010, the date of his response, that neither check had cleared the City's bank account.
3 If the City redacts any information from the checks, it must cite the applicable exception and provide a brief explanation of how the exception applies to the information withheld per KRS 61.880(1).
4 Pursuant to KRS 61.874(3), the City may also require payment of the additional cost, if any, incurred in acquiring the copies from the bank, but may not assess any charges beyond that.