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 City of Cumberland violated the Open Records Act in partially denying Tri-City News reporter Faith Clark's October 2, 2012, request for records relating to the city's water system improvement project, and Monarch Engineering's role in the project, as well as "all open records requests submitted by anyone . . . [to] the city since January 1, 2011." We find that the city's response was procedurally and substantively deficient.
Ms. Clark requested access to and copies of:
1. Information and documents the city has relating to correspondence, agreement, grants, resolutions, or other pertinent information regarding Monarch Engineering.
2. Information, including or regarding a decision made by a committee, or other parties, regarding the scoring and qualifications of engineering firms within the last 90 days, as well as documentation on who comprised the group or committee who performed said action.
3. Studies, research or relevant information that document or show necessity or need for the project and or grant Monarch Engineering is working on for the city.
4. The scope of the work Monarch Engineering has proposed, the estimated cost of the project, and line item expenditure proposals.
5. The city's updated information concerning the number of good meters, number of bad meters, and total number of installed meters, as well as any information regarding their last inspection, or why they need upgraded.
6. [Records] detailing how much this project will cost the taxpayers, how much the city's match would be, how much any loans would be, and any other documents showing entities the city has approached, or that Monarch Engineering has approached, on behalf of the city for such.
7. Estimates the city has solicited regarding the replacement of ladders or fencing around water tanks where needed.
8. Documents that may show reasons why the city needs an engineering firm for such replacements.
9. Documentation that may show how the city intends to repay the loan, whether received, reviewed or proposed at this time.
10. All open records requests submitted by anyone, and received by the city, since January 1, 2011.
City Clerk Robin Smith promptly responded to Ms. Clark's request by providing her with three records: an August 24, 2012, letter to the Cumberland Valley Area Development District referencing "a new project profile application" but excluding the referenced application; a September 11, 2012, resolution authorizing an application for funding and authorizing Mayor Carl Hatfield "to review and sign the necessary document that may be required for payment and completion of the project"; and the minutes of the September 11 special meeting at which the resolution was adopted. Ms. Smith indicated that the mayor had directed her to "hold all other documents pertaining to Monarch Engineering" pending consultation with Monarch to ascertain whether the company objected "to releasing information concerning their efforts and activities."
In a separate letter bearing the same date, but signed by Mayor Hatfield and addressed to Tri-City News owner Jeff Wider, the mayor advised:
The City of Cumberland will provide copies of documents which we determine would be an unwarranted invasion of personal or commercial privacy or entails a comparative weighing of antagonistic interests. [Sic.] Certain documents will be withheld until proper communication has been made with the corporation of primary interest which would be Monarch Engineering in beginning the preliminary undertakings to determine our needs and to obtain funding for repairs.
In closing, Mayor Hatfield indicated that if Monarch Engineering raised no objection to disclosure, the city would "provide documented evidence of any and all actions that have been taken which describe their volunteer effort to assist the City of Cumberland in resolving their [sic] issues with the EPA and Division of Water."
In supplemental correspondence directed to this office after Tri-City News initiated its appeal, Ms. Smith further explained:
The only records in my possession concerning Monarch Engineering were provided to Mrs. Clark as required by KRS 61.880(1). At the time of my response, October 30, 2012, I knew for a fact that no written contracts, commitments or agreements had been made with Monarch Engineering. Ms. Clark, who is in attendance at 95% of our council meetings as a reporter would know of any agreements or contracts having been made and could have access to such documentation if it existed.
Item 1 of the request was complied with as noted in my response to the requestor. Her request was not denied.
Items 2 through 9. No documentation or information available for any of these items.
Item 10. There have been very few requests for public records since January 1, 2011, mostly from Ms. Clark. Retention of such requests is not warranted and are not made permanent files.
In a separate letter, City Attorney S. Parker Boggs added:
Hon. Carl Hatfield states that no contracts or agreements or MOA's have been prepared or passed through the council which involves [sic] Monarch Engineering. The council has a motion in the minutes, approved allowing Mr. David Bowles, President of Monarch Engineering, at his own expense and without any obligations, to pursue loans and grants for the city. A copy of these minutes will be or have been provided to Mrs. Clark, since she was in attendance at the meeting when council approved the motion.
Taken as a whole, these responses violated the procedural and substantive requirements of the Open Records Law.
Both the city clerk and the mayor's original responses to Ms. Clark's request hint at the existence of records responsive to items two through nine the disclosure of which would be postponed while the city ascertained whether Monarch objected to disclosure. Such objections would, of course, have little or no bearing on resolution of the issue of access unless the objections were supported by one or more of the exceptions to the Open Records Law found at KRS 61.878(1)(a) through (n). The city cited no such exception in its original or supplemental response. Moreover, the city ignored item 10 of Ms. Clark's request in its original response. In it she asked that the city provide her with all open records requests submitted to the city from January 1, 2011, to October 29, 2012. The city largely equivocated on this issue in its supplemental responses advising:
There have been very few requests for public records from January 1, 2011, mostly from Ms. Clark. Retention of such requests is not warranted and are not made permanent files. [Sic.]
The city's position on retention of open records requests is at odds with the Local Government Records Retention Schedule, Series L4963, requiring retention of such requests for one year. That schedule is established by the Archives and Records Commission under authority of KRS 171.420 and promulgated into regulation at 725 KAR 1:061(3)(a). The city's records, including open records requests, are governed by this schedule, and its failure to retain the requests, whether Ms. Clark's or another requester's, for a period of one year contravenes the law.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute 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.
(Emphasis added.) KRS 61.880(1) requires public agencies electing to withhold all or any portion of a public record to "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. " In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The inability to produce a record owing to its nonexistence or destruction is tantamount to a denial, and the agency is statutorily obligated to advise the requester in writing that his or her request is denied and why. It is not for the city to defer to the wishes of a company with which it has affiliated for the purpose of implementing a water improvement project in deciding whether to honor open records request or to exercise its discretion in deciding whether retention of public records is warranted.
Rather, it is the city's duty to determine whether responsive records exist and to make them available for inspection unless statutory authority for withholding the records exists. If no responsive records exist, it is incumbent on the city to promptly notify the requester, in writing, that her request cannot be honored owing to the records' nonexistence. Accord, 11-ORD-001; 12-ORD-171. The city belatedly asserted that no records, other than those already disclosed to Ms. Clark, exist. This statement appears to contradict a statement appearing in its August 24, 2012, letter to the Cumberland Valley Area Development District, a copy of which was provided to Ms. Clark, referencing an attached "project profile application" for the water improvement project, a copy of which was not provided to Ms. Clark. The city neither acknowledges, nor offers legal justification for withholding, the project profile application or any other record whose existence was suggested in its original responses to Mr. Clark's request.
Ms. Clark "submitted a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure." Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). The City of Cumberland has thoroughly muddied the waters by first hinting that records responsive to Ms. Clark's request exist, but are being withheld while the city consults with Monarch Engineering about their disclosure, then denying the existence of responsive records altogether in apparent contradiction of statements appearing in records released to Ms. Clark as part of its original response. The city further confuses the records access issue by first ignoring Ms. Clark's request for open records requests submitted to the city, then evincing a disregard for records management requirements by suggesting that, in its view, "retention is not warranted." It is, therefore, incumbent on the City of Cumberland to provide Ms. Clark with copies of all existing records responsive to her requests and a written explanation for the nonexistence of additional responsive records the existence of which it originally acknowledged. Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (holding that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); accord 10-ORD-078; 12-ORD-192. Until it has done so, it stands in violation of the Act.
KRS 61.8715 recognizes that "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to these statutes." Thus, the intent of the Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes. Given the City of Cumberland's failure to adhere to records retention requirements, we have referred this matter to the Department for Libraries and Archives for further inquiry as that agency deems appropriate. Accord, 11-ORD-001.
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:
Faith ClarkRobin SmithCarl HatfieldS. Parker BoggsBarbara Teague