Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Montgomery County Health Department violated the Open Records Act in its disposition of Shannon Denniston's September 27, 2012, request to inspect certain tax rate calculation worksheets. For the reasons that follow, we find no violation of the Act.
The procedural history of this appeal is somewhat involved. On September 17, 2012, Mr. Denniston e-mailed Jan M. Chamness, Public Health Director for the Montgomery County Health Department:
I hereby request to inspect the following documents:
Rate Calculation Worksheets from 197902012 for the Montgomery County Health District.
These worksheets should contain current and prior year information for Tax Rate, Real Property, Personal Property, New Property, Motor Vehicle Assessment and Watercraft Assessment.
Please advise if an Open Records Request is necessary. If so, please attach the form with your reply.
On September 21, 2012, Ms. Chamness replied by e-mail:
Mr. Denniston: The worksheets I believe you're referring to are generated from the Office of Property Valuation, Finance and Administration Cabinet in Frankfort. We receive them each year and from those we calculate the projected amount we will receive from local tax collections. I believe you will have to request those from that department since I am not the originator of that information. As for the local health tax for Montgomery County, the health tax was calculated at $.04 of $ 100 of assessed real and personal property and $.04 of assessed valuation of motor vehicles since 1979. The board of health recommended the increase to $.05 of assessed real and personal property and $.05 of assessed valuation of motor vehicles in 2009.
It does not appear from the record whether any form was attached to her reply. On September 27, 2012, however, Mr. Denniston faxed an identically worded request to the Health Department, apparently typed electronically into a "Montgomery County Health Department Open Records Request Form." He initiated this appeal to the Attorney General on October 8, 2012, after receiving no reply to his facsimile transmission.
Although the Open Records Act does not require a public agency to respond to an e-mailed request to inspect public records, 1 it has the option to do so. By all appearances, the September 21 e-mailed reply from Jan Chamness to Mr. Denniston was intended to be the Health Department's substantive response to the same request that was repeated by Mr. Denniston on September 27.
A duplicate request for records ordinarily may be denied when the original request has been satisfied. See, e.g., 95-ORD-47; 04-ORD-018. Yet, in this case, Mr. Denniston's original request on September 17 had not been satisfied. Nevertheless, the agency had substantively responded to it on September 21. Although the Health Department did not comply with the procedural requirements of KRS 61.880(1) by failing to respond again to the September 27 facsimile, we are primarily concerned with the merits of its substantive response.
We caution the Health Department against relying upon the fact that it is not the "originator" of records as a basis for denying inspection. As we stated in 09-ORD-107:
The mere possession of records by the agency from which those records are requested is enough to compel that agency to make them available for public inspection or explain why they are exempt. Cf. 98-ORD-100 (discounting the concept of "casual possession").
Moreover, "there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " OAG 91-21. Therefore, if the Health Department possessed the records sought by Mr. Denniston, it would have been obliged to produce them.
On October 29, 2012, however, upon advice of the Montgomery County Attorney, Ms. Chamness mailed Mr. Denniston a copy of what she termed the "Tax Assessment Worksheets" in the Health Department's possession, which related to the years 1996 through 2012. She advised: "I do not have the worksheets dating 1979 to 1995. I have issued a formal Open Records Request to the Office of Property Valuation for those. I will forward copies of those to you when I receive them." 2
The following day, Mr. Denniston advised Ms. Chamness by e-mail as follows:
I received your packet today containing the "Worksheet for Certification Assessment for Local Government" for fiscal years 1997 - 2012. Thank you for collecting these documents. However, the documents in the packet were not the documents requested.
?
The documents I received from you today were the "certification assessments," not the "rate calculation worksheets. " I want to see where the rates for each year were calculated by your office and how you calculated the rates you published.
By way of clarification, he included a hyperlink to a PDF document discussing the "compensating tax rate" as defined by KRS 132.010.
On November 8, 2012, Ms. Chamness wrote to this office:
I contacted Mr. Charles Kendell, Chief of Staff for Dr. Stephanie Mayfield, Health Commissioner for the Department for Public Health. In reviewing Mr. Denniston's request, Mr. Kendell informed me that health taxing districts are exempt from the compensating rate rules and therefore, are not required to use these Rate Calculation Worksheets. In accordance with KRS 212.755 and 212.760, compensating rate calculations are not applied to health taxing districts; and the local board of health can establish the tax rate at a maximum of [$].10 per $ 100 of assessed property valuation regardless of changes in property value.
I confirmed this information with the Governor's Office of Local Government's attorney, Mr. Andrew Hartley. Therefore, I cannot provide the requested documents.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Since Ms. Chamness correctly states that both KRS 212.755(2) and KRS 212.760 provide "[p]ublic health taxing districts organized pursuant to the provisions of KRS 212.720 [to 212.755] shall not be subject to the provisions of the compensating tax rate as defined by KRS 132.010," no further explanation is necessary for why the Montgomery County Health Department was not in possession of the rate calculation worksheets sought by Mr. Denniston. Accordingly, we find no substantive violation of the Open Records Act.
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:
Mr. Shannon DennistonMs. Jan ChamnessKevin Clay Cocknell, Esq.
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