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 Carter County Fiscal Court violated the Open Records Act in the disposition of James L. Deckard's May 28, 2012, and June 21, 2012, requests for copies of records relating to the Carter County Detention Center, the proposed Northeast Regional Jail Authority (NRJA), Joey Stanton, and Stanton Consulting LLC. 1 The record on appeal supports Mr. Deckard's allegations that the fiscal court violated the Act only in part.
In his May 28 correspondence, Mr. Deckard requested copies of:
(1) . . . [A]ll contracts, memoranda of understanding, memoranda of agreement, or any other such writing between the Carter County Fiscal Court and/or the Carter County Judge/Executive and a consultant regarding the Carter County Detention Center and/or the [NRJA.]
In addition, Mr. Deckard requested copies of: (2) records relating to a financial review of the Detention Center and/or the NRJA; (3) records relating to proposed cost savings if Carter County participates in the NRJA; (4) the minutes of the May 29, 2012, 2 Carter County Fiscal Court special meeting; (5) recordings of the meeting; (6) notice of the meeting; and (7) records relating to the requirement that the fiscal court comply with KRS 61.840 by providing meeting room conditions that allow effective public observation.
In a timely written response, Judge Carter agreed to provide Mr. Deckard with projected budgets for Boyd and Carter Counties in satisfaction of request (3), draft minutes of the May 29 special meeting in satisfaction of request (4), a video of the May 29 meeting in satisfaction of request (5), and a copy of the special meeting notice in satisfaction of request (6), but denied the existence of records responsive to requests (1), (2), 3 and (7). On appeal, Mr. Deckard acknowledged that Judge Wallace responded to his request for records relating to "expenditures, communications, reports, and any other such documents concerning the Detention Center or NRJA" by denying the existence of "certain documents," but complained that the Judge "failed to respond at all to other aspects of the request." In support, he attached two letters from Judge Wallace to the Grayson Journal-Enquirer concerning Joey Stanton, invoices submitted by Stanton Consulting LLC to Judge Wallace for March, April, and May 2012, and three pages from the Carter County Fiscal Court Cash Distribution Register, all of which he obtained from another source.
In supplemental correspondence directed to this office, Judge Wallace emphasized that Mr. Deckard did not request records relating to "expenditures, " asserting that, had he done so, the invoice and payment records would have been disclosed to him. Judge Wallace observed:
The information in question was provided to the Grayson newspaper in response to the June 6 request made by the paper. There have been two other requests made by Mr. Deckard to which I have responded.
He denied Mr. Deckard's allegation that he had engaged in a pattern of obfuscation and delay in responding to these requests.
Mr. Deckard thereafter submitted another open records request to the Carter County Fiscal Court dated June 21, simultaneously asking that the Attorney General hold his first appeal in abeyance while this request was in process. In it, he requested copies of:
[A]ll documents received from or sent or given to Joey Stanton and/or Stanton Consulting LLC, from July 1, 2011, to June 21, 2012. Documents include all correspondence, notes, records, memoranda, reports, emails, contracts, invoices, checks, payments and telephone messages, or any other such documents . . . .
In addition, Mr. Deckard requested copies of Joey Stanton's personnel file "as an employee of the office of the Carter County Judge/Executive," all open records requests submitted by the Grayson Journal-Enquirer and the Olive Hill Times , and the responses to those requests, from April 1, 2012, to June 21, 2012.
In a timely written response, Judge Wallace agreed to provide Mr. Deckard with copies of responsive invoices and the projected budget, as well as open records requests and responses, but denied the existence of "correspondence, notes, records, memoranda, reports . . ., email, contracts, o[r] phone messages. " He also agreed to the disclosure of payments and checks through the Carter County Treasurer's office, but denied the existence of a personnel file relating to Joey Stanton. Judge Wallace apparently failed to include copies of the promised records with his letter to Mr. Deckard prompting Mr. Deckard to initiate a second open records appeal. Mr. Deckard again attached a copy of Judge Wallace's undated response to a request submitted by the Grayson Journal-Enquirer , three invoices from Stanton Consulting LLC, and, for the first time, a series of articles concerning the Carter County Detention Center, NRJA, Joey Stanton, and Stanton Consulting LLC, to his letter of appeal. He did not, however, explain the significance of these documents.
Judge Wallace responded to Mr. Deckard's second open records appeal by acknowledging the omission of the referenced enclosures, suggesting that "[a] call to [his] office would have remedied the omission. " Attached to his supplemental response were copies of a second undated open records response to a request submitted by the Grayson Journal-Enquirer , three invoices from Stanton Consulting LLC, a travel expense report submitted by Joey Stanton, and the "Budget of Boyd/Carter Regional Jail." Mr. Deckard had previously obtained all of these records, with the exception of the travel expense report, from Judge Wallace or from another source. He subsequently expressed frustration with the paucity of records produced, insisting that additional responsive records must exist, but could offer no proof of the existence of additional records.
The Carter County Fiscal Court complied with KRS 61.880(1) 4 by issuing timely written responses to Mr. Deckard's May 28 and June 21 open records requests. With reference to the May 28 request, the fiscal court provided Mr. Deckard with records responsive to four of the seven subparts of that request but denied the existence of "contracts, memoranda, etc. between the fiscal court and any consultant, " a financial review of the detention center, and policies relating to compliance with KRS 61.840. The fiscal court later defended its failure to produce copies of invoices submitted by Stanton Consulting, which Mr. Deckard obtained from another source, emphasizing that nowhere in his June 21 request did the word "expenditure" appear. A careful review of Mr. Deckard's request dated June 21 confirms the fiscal court's position. We cannot, and do not, read the first and second subparts of that request to extend to invoices or records documenting expenditures. Nor do we interpret those subparts to extend to responses to open records requests issued by the fiscal court. Moreover, the absence of records documenting the relationship between the fiscal court and Stanton Consulting LLC, and/or Joey Stanton, is, simply stated, not actionable in an open records appeal. Perhaps such documentation should exist, but the Act addresses access to records that do exist. See, e.g., 07-ORD-218 (recognizing that records creation is, within the legal parameters found at KRS 171.640, "a matter of state or local agency prerogative . . ."). Finally, the failure to maintain "notes, memoranda, directives, policies, or other writings" relating to compliance with KRS 61.840 does not constitute a violation of the Open Records or Open Meetings Acts. The Open Meetings Act does not require the creation of local rules and regulations. 5 Although we understand that allegations have recently been leveled against the fiscal court for failing to provide meeting room conditions that allow effective public observation, we must assume that those allegations, and any related discussion, have not been reduced to writing. In the absence of specific evidence in the record on appeal that raises the issue of the fiscal court's good faith in producing responsive records, we find no violation of the Open Records Act with respect to Mr. Deckard's May 28 request.
Whether the fiscal court fully complied with KRS 61.880(1) in responding to Mr. Deckard's June 21 request is a closer question. We assume, in the absence of evidence to the contrary, that the fiscal court omitted the attachments to its June 26 response through an oversight. This omission was corrected when it was brought to the fiscal court's attention. Nevertheless, the fiscal court ultimately failed to provide Mr. Deckard with copies of the open records requests that prompted the responses it released to him. Moreover, the existence of one "Travel Expense Report" for Stanton Consulting LLC, strongly suggests the existence of more "Travel Expense Reports" since the accompanying invoices reflect thirteen trips originating from Leitchfield, Kentucky, in May alone. Finally, as a "part-time temporary assistant" in the Office of the County Judge/Executive, Mr. Stanton's employment surely resulted in the creation of records "given to" Joey Stanton, such as the requisite federal, state, and local tax forms and payroll records. In contrast to his May 28 request, Mr. Deckard's June 21 request was narrowly tailored to elicit particular records, and the Carter County Fiscal Court is obligated to conduct a second search using methods that could reasonably be expected to produce the records requested. 95-ORD-96; 12-ORD-129. The fiscal court's response to this request raises the issue of good faith in conducting an adequate search for responsive records.
In an early open records decision, the Attorney General recognized that it was not our duty under KRS 61.880(2), on a limited factual record, to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted and those sought but not provided." OAG 89-81, p. 3. Given the limits of our role, we do not address Mr. Deckard's allegation that the Carter County Fiscal Court engaged in obfuscation and unnecessary delay. If any evidence exists of such conduct, it should be presented to the appropriate authority pursuant to KRS 61.991(2).
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:
James L. DeckardCharles WallacePatrick Flannery
Footnotes
Footnotes
1 Mr. Deckard submitted separate appeals concerning the fiscal court's disposition of each of his requests. Because these appeals arise from the same set of facts and involve the same questions of law, they are consolidated for purposes of analysis under KRS 61.880(2).
2 Apparently misidentified as a May 28, 2012, special meeting.
3 Judge Wallace indicated that the only record responsive to Mr. Deckard's request for records relating to a financial review of the Detention Center and/or NRJA was the annual audit. He agreed to make the audit available through the Treasurer's Office.
4 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
5 Compare, KRS 61.876.