Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Shelby County Animal Shelter violated the Kentucky Open Records Act in the disposition of Randy Skaggs' September 7, 2010, request for seven categories of information and records, most of which Animal Control Officer James Collins provided. By letter dated October 4, 2010, Mr. Skaggs challenged the agency's response to Items 5-7 of his request, which included the total number of dogs (Item 5) and cats (Item 6) euthanized each month "plus copies of all veterinarian records or invoices indicating the services rendered and the method of euthanasia and solutions used for every month from January 1, 2010 through August 31, 2010," (Items 5-6) and "records or invoices from the trash or refuse removal service indicating the disposition of euthanized animals' bodies" (Item 7) for the same period of time. In honoring Mr. Skaggs' requests for information (parts of Items 5-7 and Items 1-4), and then attempting to resolve any discrepancies perceived, the Animal Shelter, to its credit, went beyond its duty under the Open Records Act. The Animal Shelter was not required to create a record(s) in order to comply and is not expected to produce nonexistent records; 1 however, inasmuch as the Animal Shelter presumably maintains basic financial documentation (annual budget, financial statements, monthly ledgers, invoices, etc.) that is at least partially responsive to Items 5-7 of the request, i.e., documenting expenditures for supplies and services rendered, the agency must provide Mr. Skaggs with copies in order to fully discharge its duty.
In his October 4 letter, Mr. Skaggs complained specifically that no records documenting "any 'veterinarian services' for the entire eight month period" (Items 5-6) were provided "nor is there any indication of the type of euthanasia performed nor receipts indicating the acquisition of such solutions or products for the same entire eight month period if in fact, the euthanasia was done by yourselves." Insofar as the records documenting "the 'disposal' (Requested Record No. 7) of the euthaniz[ed] animals, there [are] none from March, 2010 through the end of June, 2010[.]" In addition, the numbers denoting "surrenders, adoptions and disposals from January, 2010 through August, 2010 (Requested Records No[s. 3-6] do not add up precisely; there is an obvious discrepancy. " 2 Because Mr. Skaggs was "unable to obtain an accurate, factual assessment as to the number of animals actually euthanized without this substantiating documentation, " he advised that The Trixie Foundation "would appreciate the remittance of the missing documentation" identified above.
By letter dated October 8, Mr. Collins advised Mr. Skaggs that having reviewed the agency's original response he "found that the information provided was for the most part, as requested." In response to his remaining questions, Mr. Collins explained:
[A]ll euthanizing is performed by euthanasia specialists on staff at the shelter. We currently have 2 euthanasia specialists licensed with the KY Department of Veterinary Examiners. Fatal Plus solution is used to perform euthanasia by lethal injection. The use of this product has been so low that we have not had to order during the time period you have requested.
As to the question of discrepancy in numbers, we are unable to help with an explanation. The numbers listed on the forms sent to you are the numbers of animals euthanized/ died at the shelter during the time you requested. Our disposal service only removes our dead animals when we request their services. We only request removal when our freezer is full and requires being emptied. There had only been the noted occasions that we had our dead animals removed. The removal service only counts the number of cadaver bags they remove and not the actual number of animals in those bags.
Because The Trixie Foundation "believes that there are quite likely copies of veterinarian records, invoices or receipts plus copies of refuse removal records, invoices or receipts which would allow us to more accurately determine Shelby County Animal Shelter's claim as to being a real 'no-kill' facility," Mr. Skaggs initiated this appeal shortly thereafter, reiterating his request for documents responsive to Items 5-7. Our analysis therefore focuses exclusively on the agency's disposition as to same.
Upon receiving notification of Mr. Skaggs' appeal from this office, Rusty Newton, Director, responded on behalf of the Animal Shelter, advising that "all records that were requested referring to that matter were submitted." Referencing Mr. Collins' October 8 letter, which "explains why some requested information was not available," Mr. Newton further advised that his agency "can only respond to any and all requests with the information that we have in our records. The letter that was sent to Mr. Skaggs on October 8, 2010 clearly stated that." Although the Animal Shelter obviously cannot produce for inspection or copying that which it does not have, it does presumably have potentially responsive financial documentation, if not actual "invoices, " which it maintains in the regular course of business and Mr. Skaggs' request would encompass that documentation; accordingly, it must be produced. The Animal Shelter appears to have acted in good faith and its disposition of the request is otherwise affirmed.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Significantly, this office "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4. See, e.g., OAG 76-375. In sum, "'what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.'" 02-ORD-165, p. 5, quoting OAG 91-12, p. 5. 3 In lieu of creating a record, the Act contemplates that access be provided either by means of on-site inspection or by receipt of copies through the mail. See KRS 61.872(3). Mr. Skaggs requested the latter.
Although Items 5-7 of Mr. Skaggs' request (as well as Items 1-4 in their entirety) are properly characterized, in part, as requests for information, which the Animal Shelter was not required to comply with, it nevertheless provided him with a "Monthly Shelter Activity Report" listing the "Surrenders," "Adoptions," "Disposals, " and the "Adoption Percentage" by species in addition to a log from Bluegrass Recycling Service, which confirms that "30 bags" were disposed of in February 2010 and 14 bags were in July 2010. The Animal Shelter, to its credit, also provided him with additional information by letter dated October 8, 2010, in response to his remaining questions. However, the Animal Shelter did not provide any "records or invoices" documenting expenditures for services rendered. Nor did the Animal Shelter object that Mr. Skaggs' request was not framed with adequate precision. See KRS 61.872(3)(b) (requiring the requester, whose "residence or principal place of business is outside the county" to "precisely describe" public records which are "readily available within the public agency" in order to receive copies by mail) . The Animal Shelter could not "reasonably do so given the fact that it was able to locate records containing [at least some of] the information sought." 06-ORD-225 (Randy Skaggs/Ballard County Fiscal Court), p. 5.
As in that decision, this office finds that the agency whose records were requested "went beyond its duties and obligations . . . and is to be commended for its attempt to accommodate Mr. Skaggs," but has not fully discharged its duty under the Act "until [financial documentation substantiating the information provided, expenditures made for supplies and services rendered, etc., in whatever form it exists]," is disclosed. Id. The Open Records Act establishes the right of access to nonexempt public records. 4 "Acknowledging that the [Animal Shelter's] efforts in this matter were meritorious," this office nevertheless concludes that it must "retrieve the records from which the information was extracted, calculate its actual costs at a rate of ten cents per page for copies, plus postage, notify Mr. Skaggs of the costs, and mail copies of those records to him upon receipt of this amount." Id.
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.
Randy SkaggsJames CollinsRusty NewtonHart T. Megibben
Footnotes
Footnotes
1 See 07-ORD-188 and 07-ORD-190.
2 This office has consistently recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 05-ORD-236, p. 3 (reporter questioned the validity of invoices produced in response to request and the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records Appeal); 04-OMD-182 (questions regarding the authenticity of a public agency's meeting minutes were not appropriate for review by the Attorney General)
3 A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest" ), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position.
4 Generally speaking, the financial and operational records of a public agency are open for inspection. 05-ORD-065, p. 9. 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 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").