Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
These matters having been presented to the Attorney General in separate open records appeals, but arising from a common nucleus of law and fact, are consolidated for purposes of adjudication pursuant to KRS 61.880(2). The Attorney General being sufficiently advised, we find that the Kentucky Democratic Party is not a public agency for open records purposes and cannot be said to have violated the Act in the disposition of Michael Tyler's requests for answers to "several basic questions" concerning "the 2007-08 campaign for Governor by Steve Beshear." Further, we find that although the Governor is a public agency for open records purposes, he did not attain that status until he was sworn in on December 11, 2007. Records generated in the course of his gubernatorial campaign, if they exist and contain the information sought, are not public records for open records purposes.
The Kentucky Democratic Party responded to Mr. Tyler's letters on January 10, 2011, advising him that "[a]s a political party and not a state agency, we are neither the keeper of the Governor's public schedule nor are we an organization covered by the Kentucky Open Records statutes." On behalf of the Party, Communications Director Matt Erwin suggested that Mr. Tyler direct his letters to the office of Governor Steve Beshear. Shortly thereafter, Mr. Tyler submitted the same letter to the Governor, and on January 18, 2011, Deputy General Counsel Michael T. Alexander issued a written denial to the letter, treating it as a request for copies "of the Governor's schedule from 2007 through the present as it relates to meetings" with named individuals and appearances in certain locations. Mr. Alexander relied on KRS 61.878(1)(j) and (k) 1 as well as Courier Journal v. Jones, 985 S.W.2d 6 (Ky. App. 1995) and 04-ORD-211.
On appeal, Mr. Tyler acknowledged that "[p]olitical parties are private entities but they are governed by public policy and thus the public policy is the Open Records laws." He noted that candidates are required to register with the state and maintain "certain records on their activities and fundraising under the laws or rules and regulations" and questioned why these are not public records. It was his position that "[t]he Governor's campaign and his records are part of the public record open for scrutiny by the public." In supplemental correspondence directed to this office, Mr. Alexander asserted that there are no records in the Governor's Office that are responsive to Mr. Tyler's request. Additionally, he argued that if such records were maintained they would be excluded from public inspection under the legal authorities cited in his original denial, and that because Mr. Tyler requested information rather than records the Governor's Office was not obligated to honor the request.
A review of KRS 61.870(1)(a) through (k) confirms the proposition that the Kentucky Democratic Party 2 is not a public agency as defined in that provision. 3 Nor is a candidate seeking public office unless he is elected and then only after he is sworn into office. KRS 61.870(1)(a). Moreover, we can locate no legal requirement obligating the party or its candidate to generate or maintain records documenting meetings and appearances conducted by the candidate in the course of his or her campaign. Even if the party was a public agency and such a legal requirement existed, Mr. Tyler did not request documentation but instead requested answers to questions that might or might not have been found in that documentation. His request for information from an entity that is not a public agency pursuant to KRS 61.870(1) was therefore fatally flawed. See 06-ORD-024, page 3, affirming "a line of decisions dating from the inception of the Open Records Act . . . recogniz[ing] that a public agency is not statutorily obligated to honor a request for information as opposed to a request for described public records. " Because the records of the Kentucky Democratic Party are not governed by the Open Records Act, the Act does not require their disclosure. We find no violation of the Open Records Act with respect to the Party.
The Governor is a public agency, pursuant to KRS 61.870(1)(a), as is "[e]very state or local government officer." This status is not, however, retroactive and he assumes it only after he is sworn into office. Although his campaign is closely scrutinized by, and accountable to, federal and state authorities, again we have located no specific legal authority requiring him to generate and/or maintain records of campaign appearances and public or private meetings. Moreover, records management requirements established in Chapter 171 of the Kentucky Revised Statutes, and reflected in the Governor's Records Schedule, 4 are not retroactive. 5 If the Governor, as a candidate for public office, elected to maintain an itinerary of appearances and meetings, that itinerary would not constitute a record of the Governor's Office and would have no assigned retention period even upon his election and swearing in. Finally, Mr. Tyler did not request an itinerary or any other record. He asked for answers to "several basic questions." Consistent with the position set forth above, this was an improperly framed request, and there is no merit to the issues he raises on appeal.
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.
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