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 McCracken County Board of Education violated the Open Records Act in denying the Ironworkers Southern Ohio and Vicinity District Council's February 6, 2012, request to inspect and copy "payroll records [required to be maintained under KRS 337.505 et seq. ] for subcontractor Lamar Construction Co. working under A & K Construction Co. on the McCracken County High School project." The Board issued a timely written response advising the District Council that it does not maintain those records and has not asserted any purported right to access the records pursuant to its duty, under prevailing wage laws, to take cognizance of all complaints of violations of those laws. In the absence of citation to statute or regulation requiring the Board "to keep or inspect the records of the contractor or subcontractor, " the Board concluded that the requested subcontractor payroll records "were not 'public records' as defined by KRS 61.870(2)" because they were not prepared, owned, or used by the Board. Nor were the records possessed or retained by the Board. We agree. We therefore respectfully decline the District Council's request that we reconsider 06-ORD-201 and 08-ORD-236. 1
On appeal, the District Council argued that the Board "is a public agency bound by statute to use contractor and subcontractor payroll records in order to comply with the statutory requirements imposed on public authorities under KRS 337" to ensure compliance with prevailing wage laws. (Emphasis added.) In support, the District Council emphasized language appearing at KRS 337.510(2) that imposes a duty on the public authority awarding the contract "to take cognizance of all complaints of all violations," and, in making payments to the contractor, "to withhold, and retain therefrom, all sums and amounts due and owing as a result of any violation thereof." "These records," the District Council reasoned, "must be used by the public agency to verify payment or calculate amounts that need to be deducted to cover violations." (Emphasis in original.) "As such," the District Council concluded, "payroll records on public prevailing wage projects are subject to the Open Records Act because they are generated for the use of the contracting public agency. "
The District Council attempted to distinguish 99-ORD-202, 2 upon which this office relied in 06-ORD-201 and 08-ORD-236, asserting that the decision "controls only those situations where a public agency has access to third party records, coupled with the discretion to collect, or not collect, the disputed records." Here, the District Council maintained, "KRS 337 imposes a nondiscretionary duty [on the Board] to investigate prevailing wage complaints and withhold funds properly due to laborers" thus requiring the Board to "have effective and constructive control over all payroll records regarding the laborers on its public works contracts." It was the District Council's position that the requested records "were generated in part for the 'use' of the [Board] to ensure proper payments to laborers on its high school projects" and are therefore "public records" within the meaning of KRS 61.870(2). 3
The Board refuted the District Council's position in supplemental correspondence directed to this office after the District Council filed its appeal. Relying heavily on 99-ORD-202 for the proposition that, in general, the Open Records Act "does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request," 99-ORD-202, p. 5, the Board maintained that the prevailing wage laws do not obligate it "to act on so-call 'perceived violations' or 'to ensure that the prevailing wage is paid to every laborer, ' but only to 'take cognizance of all complaints.'" KRS 337.510(2). Continuing, the Board observed:
No such complaint has been received by the Board. Moreover, the Board has no 'duty to investigate' prevailing wage violations, an act expressly reserved for the Commissioner of the Department of Workplace Standards. KRS 337.550(1) (upon complaint, '[t]he Commissioner shall investigate and enforce' the prevailing wage statutes). Finally, the Board is unaware of any authority making the '[p]ayroll records of contractors and subcontractors . . . available for the public agency to ascertain whether violations have occurred.
In sum, the Board averred, it "does not 'use' the payroll records required to be maintained by its contractors and subcontractors under KRS 337.530(2) and has not used them in connection with this construction project ." (Emphasis in original.)
While we find the District Council's position compelling from a policy perspective, 4 we do not find its position persuasive from a legal perspective. We cannot, in the context of an open records appeal, determine whose interpretation of the prevailing wage laws is correct. This is not our function under KRS 61.880(1). Instead, we are statutorily charged with issuing a written decision stating whether the McCracken County Board of Education violated the Open Records Act in denying the District Council's request for Lamar Construction Company's payroll records for the McCracken County High School project. This determination turns on whether the payroll records are "public records" within the meaning of KRS 61.870(2). Because the records were not prepared, owned, or used by the Board and are not possessed or retained by the Board, we find that they are not "public records" within the meaning of KRS 61.870(2). Regardless of whether the Board "should" have used the payroll records, or "could" have used the payroll records, the Board did not use the payroll records in connection with this construction project. The records were not, therefore, public records of the McCracken County Board of Education, and its denial of the District Council's request did not violate the Open Records Act.
This position is consistent with two open records decisions arising from nearly identical facts. In 06-ORD-201, the Attorney General affirmed the Kenton County Public Library's denial of a request for subcontractor records relating to a public construction project "due to its inability to produce records not in its custody or control." 06-ORD-201, p. 1. Citing 99-ORD-202, we recognized that "although records of a subcontractor or a contractor under contract with a public agency 'are records in which the public has a legitimate interest' insofar as '[a]mounts paid from public coffers are perhaps uniquely of public concern . . .,'" we concluded that we were "not empowered to declare, in the context of an open records appeal, that an agency's 'failure to require that the records be submitted to it, and managed and maintained as public records, constituted a violation of the Open Records Act. '" Id. at 2. Because the Act only applies to records that are "prepared, owned, used, in the possession of, or retained by a public agency, " and the Kenton County Public Library had elected not to take possession of or use the requested records, "'satisfied that the available documentation [was] adequate as long as the contractor perform[ed] the work in the contract for the bid amount and in a manner that satisfies the [contractual] specifications,'" id. at 2, citing 99-ORD-202, we concluded that the Library properly denied the request "on the basis that it could not produce for inspection nonpublic records that were not in its custody or control." 5
We reached the same conclusion in 08-ORD-236, applying the same legal analysis. In that appeal, the requester asked to inspect contractor payroll records relating to a high school construction project that the agency had neither possessed nor used. Here, as in 06-ORD-201 and 08-ORD-236, the Board reiterates that it "does not 'use' the payroll records required to be maintained by its contractors and subcontractors under KRS 337.530(2) and has not used them in connection with this construction projection." Nor, the Board declares, has it "exercised any authority to access the requested documents . . . [or] possessed them at any time for any purpose." It is this fact alone that governs the outcome of the appeal before us and not the proper legal interpretation of KRS 337.510. The McCracken County Board of Education has neither used nor possessed Lamar Construction Company's payroll records and is not obligated under KRS 61.870 to 61.884 to exercise any arguable right of access under KRS 337.510 to satisfy the District Council's request. To hold otherwise would be tantamount to "compelling the [Board] to 'create' an agency record since prior to that exercise the record was not a record of the agency." 99-ORD-202, p. 5 citing Forsham v. Harris, 445 U.S. 169, 186 (1980). Kentucky's Open Records Act does not require the Board to do so.
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.
Distributed to:
Brennan C. GraysonNancy WaldropL. Miller Grumley
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