Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Oldham County Board of Adjustments and Appeals violated the Kentucky Open Records Act in the disposition of Judy Ponder's January 29, 2013, request for a copy of " All Board member and Chairman written communications about property owners Lutes' [sic] and their property at 6002 Centerwood Drive, Crestwood, KY 40014, Lot 13, Northwood East Subdivision, including but not limited to Board Docket OC-12-009," that were:
a. to, from, or sent copy to [sic] Mark Lutes, Janice Lutes (possible Email address: lutesfam@netzero.net, or mlutes@ups.com), attorneys Thomas J. Banasynski and Joshua Chubb, County Officials Jim Urban, Brian Davis, Tara Dickerson, Gary Woods, Jerry Dunaway, Timothy Tyree, Amy Alvey, Victor Peak, Beth Stuber, David Voegele, John Black, Property Valuation Administrator's [O]ffice, the Board of Adjustments and Appeals, or any combination [thereof;] and
b. prepared, sent, received, or forwarded from January 1, 2011 to date [of] reply of this request.
In a timely written response, Director Jim P. Urban, Oldham County Planning & Development Services, advised Ms. Ponder that his office would comply with her January 29 request "for all communications regarding the Lutes['] property, Lot 13, Northwood East" but would "need additional time to fulfill the request that fall [sic] within the scope of the Open Records Act [.]" Mr. Urban indicated that said records would be ready after 1:00 p.m. on Friday, February 8 , 2013. However, Ms. Ponder initiated this appeal by letter dated February 4 , 2013, challenging the agency's failure to either provide a detailed explanation of the cause for delaying access per KRS 61.872(5) or comply with KRS 61.880(1) by advising whether any records were being withheld and on what statutory basis if so. 1 According to Ms. Ponder, the Board "and their KRS 100-261 zoning officials" have been "personifying conflicts of interest and/or appearances of impropriety[.]" Notwithstanding what she characterized as inherent statutory bias "and loopholes for improper influence," Ms. Ponder characterized the "subject of this appeal" as the Board's "record keeping."
Specifically, Ms. Ponder complained that Mr. Urban, rather than Board Chairperson Larry Otterback, responded on behalf of the Board yet "cited no legal authority for him to serve as the records custodian for the Board or under the authority of" Mr. Otterback. In her view, Chairperson Otterback, to whom she directed her January 29 request, failed to comply with KRS 61.872(4) by referring her to the official custodian of records. Ms. Ponder also contended that the Board failed to comply with KRS 61.876(1), or "if the Board has adopted rules, any rules allowing Mr[.] Urban to serve as custodian for the Board [are] in violation of law and a conflict of interest, and any such rules are omitted in the Board Bylaws, perhaps unwritten and arbitrary." She referenced specific provisions of KRS Chapter 100 and outlined in detail the agency's perceived non-compliance therewith in support of her primary complaint, namely, that having Mr. Urban serve as the records custodian for the Board creates a conflict of interest which, in turn, creates the potential for tampering with and/or mismanaging the records of the Board.
Upon receiving notification of Ms. Ponder's appeal, Oldham County Attorney John K. Carter responded on behalf of the Board, correctly observing that a significant portion of the appeal relates to "alleged conflicts of interest and alleged ethical violations which are not within the purview of the Open Records Act. " Regarding the alleged violation of KRS 61.872(5), Mr. Carter noted that Ms. Ponder "does not complain that Chairman Otterback, to whom the request was made, failed to provide the records requested either personally or through an appointed administrative official of the [Board]. " Mr. Carter observed that Mr. Urban, "Director of the Oldham County Planning and Zoning Commission," responded to Ms. Ponder's request, which identified fourteen different sources of e-mails that he was required to review, on January 31, 2013, two days after it was received. He argued that even "absent Urban's explanation for the delay," his response was "facially compliant with KRS 61.872(5) given the obvious time consuming nature of locating and reviewing all documents and emails to determine their existence and the [Act's] application to those records." Mr. Carter also noted that Mr. Urban has advised Ms. Ponder in responding to previous requests "of the necessity of extra time since there are seven (7) computers that have to be examined to determine the existence of any of the documents requested." The Board did not respond to Ms. Ponder's claim regarding the specificity required under KRS 61.880(1) beyond reiterating the obvious fact that Mr. Urban "is not required to release any records that are not subject to the Open Records Act. " Mr. Carter confirmed that Mr. Urban provided the records "that are subject to production under the [Act]" to Ms. Ponder on February 8 without further explanation.
In refuting Ms. Ponder's complaint as to Mr. Urban responding on behalf of the Board rather than Mr. Otterback, the Board Chairman and presumed records custodian, Mr. Carter argued that Ms. Ponder "misreads KRS 61.880(1)" and "KRS 100.173 and KRS 100.223 specifically provide that the Planning Commission and its sub-agencies may employ staff, like Mr. Urban, to accomplish its assigned duties." 2 Mr. Urban's response, he continued, "was made under the authority of the chairperson of the [Board] who has designated [Mr. Urban] to be the person to whom record requests are to be made[.]" Further, the Board "does not have a separate office and does not keep separate records other than those kept by [Mr.] Urban in the office of the [Commission]." With regard to Ms. Ponder's claim that Chairman Otterback violated KRS 61.872(4), Mr. Carter asserted that Mr. Otterback "clearly contacted [Mr.] Urban who is an appropriate person to provide the records requested[.]" In addressing the Board's alleged failure to comply with KRS 61.876(1), Mr. Carter advised that "the Oldham County Planning Commission does maintain a written policy that conforms" to it, which is located on the Oldham County website at www.oldhamcountyky.gov. He included a hard copy of the home page and the policy with his February 19 appeal response. Citing OAG 84-300, Mr. Carter argued that "[e]ven if rules did not exist, the rules and regulations of the Finance and Administration Cabinet would apply." 3
In reply, Ms. Ponder clarified that her appeal was premised on her belief "that the production of records is not reliable as to completeness if it is not processed by the Official Custodian and/or the legally allowed custodian, and especially if by a person with a conflict of interest. " Whether the length of the delay was reasonable "is not the complaint." 4 Rather, KRS 61.872(5) calls for specificity, Ms. Ponder correctly observed, and the explanation provided in the February 19 response was untimely. Ms. Ponder also reiterated that the Board "has not affirmatively declared that they produced all requested records." 5 Worse yet, she argued, "the decision to grant or withhold records was not from the official custodian [.]" Because the statutes governing the Board required "the custodian for the Board to store their own records in their OWN office or in the possession of a Board member[,]" Ms. Ponder asserted that its policy appears to conflict with the statutory scheme insofar as "Board Respondent Zoning Officials may EVER act as records custodian for their Board tribunal. " She then elaborated at length regarding her disagreement with the manner in which the Board and the Commission have interpreted the law as "relates to records custodians and records keeping."
In her view, "not keeping separate records violates governing law" and the "defense that Mr. Urban was acting under the authority of the Board chairperson is unsupported." Citing various provisions of KRS Chapter 100, and the definitions for "custodian" and "official custodian" found in the Open Records Act, Ms. Ponder emphasized the lack of documentation reflecting that Board Chairman Otterback "did receive the request or coordinated the reply" and noted that "appropriate person" is not defined in the Act. Finally, Ms. Ponder challenged the propriety of the Board's "Public Records Policy," noting that it facially applies to "Planning and Zoning" rather than the Board. Returning to her original premise/fundamental complaint, Ms. Ponder argued that said policy "misleads" the public into believing that Mr. Urban is the official records custodian for the Board. With the exception of its failure to comply with the mandatory language of KRS 61.872(5), and its partial noncompliance with KRS 61.876(1), this office has no basis upon which to find that the Board violated the provisions of the Open Records Act .
As the foregoing summary demonstrates, the running theme of Ms. Ponder's February 4 detailed letter of appeal and February 21 supplemental correspondence relates to compliance with provisions of KRS Chapter 100 or lack thereof, and the perceived ethical violations and/or conflict(s) of interest attributable to Mr. Urban acting as the records custodian for the Board, etc. Her fundamental complaint is admittedly that Mr. Urban "acting as his statutory tribunal Board's records custodian is akin to a fox guarding the hen house." Accordingly, the vast majority of the issues that she raises are simply beyond our purview. "The Attorney General is not empowered to ? resolve non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; see 12-ORD-110 ("whether the agency followed the required procedures or complied with governing law (s) aside from the Open Records Act is not a question that can be resolved here")(footnotes omitted). In a recent decision, this office advised Ms. Ponder that "proper interpretation of KRS 147A.027 or a determination of what exactly is required to achieve full compliance therewith is beyond our purview. " 12-ORD-162, p. 5 (In re: Judy Ponder/Oldham County Planning and Development Services, issued September 4, 2012). Similarly, whether the Board of Adjustments and Appeals is properly interpreting or fully complying with specific provisions of KRS Chapter 100 referenced in the instant appeal is a question that is not justiciable in this forum; likewise, allegations regarding ethical violations or conflicts of interest by Mr. Urban or the agencies do not fall within our narrow scope of review.
KRS 61.870(5) defines the term "official custodian" as "the chief administrative officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control. " 6 According to KRS 61.872(2), the "official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.876(1) requires each public agency to "adopt rules and regulations in conformity with the provisions of [the Open Records Act] " in order to "provide assistance and information upon request" and to ensure "efficient and timely action in response to application for inspection . . . ." Said rules and regulations must identify the "title and address of the official custodian of the public agency's records[.]" Finally, KRS 61.880(1) provides that the agency's response to an open records request "shall be issued by the official custodian or under his authority, and it shall constitute final agency action."
When viewed in conjunction, these provisions require each public agency to appoint an official custodian of records whose function is to process all open records requests received by the agency. Judging by the evidence of record, the Board has apparently designated Mr. Urban to serve as its "official custodian" of records. Acting in that capacity, Mr. Urban issued the agency's January 31 response to Ms. Ponder's request under the authority of Chairperson Otterback. He identified himself as the "Official Record[s] Custodian of the Oldham County Board of Adjustment" in the agency's February 7 response. 7 This office has long recognized, in reference to KRS 61.872(4), that when public records "are in the custody and control of the agency to which a request is directed, but the recipient of the request is not the agency's official custodian, the recipient must immediately forward the request to the agency's official custodian. " 00-ORD-12, p. 3. Accordingly, the agency did not violate KRS 61.872(4) in doing exactly that. The "Planning and Zoning PUBLIC RECORDS POLICY" available on the Oldham County website identifies the "Planning and Zoning Director" as the individual to whom requests made under the Open Records Act should be directed. Assuming the Board also has a copy of this policy displayed "in a prominent location accessible to the public" in accordance with KRS 61.876(2), 8 which remains unclear, the agency has also discharged its duty in this regard from an Open Records perspective. In the interest of clarity, the Board may wish to clarify that the policy applies not only to "Planning and Zoning, " but also to the Board, as referring to both agencies interchangeably only exacerbates any confusion regarding the distinctions among their duties. All else being equal, this office sees "nothing wrong with the . . . policy of processing open records requests through . . . [one office]. In our view, this policy ensures uniformity and adherence to the law." 93-ORD-134, pp. 10-11; 04-ORD-106; 09-ORD-191.
That said, the brief delay in providing access to existing responsive documents may have been justified in this instance; however, the Board violated the Act from a procedural standpoint in failing to either provide Ms. Ponder with timely access or properly invoke KRS 61.872(5) if appropriate. This office has long held that any extension of the statutory time frame of three business days "must have a statutorily recognized basis, must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain." 08-ORD-021, p. 6 (original emphasis); see 06-ORD-126. Noticeably absent from the Board's initial response is any reference to KRS 61.872(5), the only exception to KRS 61.880(1). Neither the "obvious" time consuming nature of the request, nor any previous responses to Ms. Ponder relieved the Board of its duty to comply with KRS 61.872(5). Although it specified a date on which the records would be available, the Board initially offered no explanation of any kind for delaying access, merely advising instead that "additional time" was needed. Here, as in 12-ORD-211, the Board failed to fully discharge its duty in this regard. See 12-ORD-151.
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:
Judy PonderJim P. UrbanJohn K. Carter
Footnotes
Footnotes
1 Because Ms. Ponder initiated her appeal prior to receiving the agency's final response, any determination regarding the merits of that response would be premature. Inasmuch as the agency had not actually denied access to any existing responsive public records on February 4, any substantive questions regarding its ultimate disposition of the request are not ripe for us to review.
2 The agency identifies Mr. Otterback as the "Chairman of the Board of Zoning, Adjustments and Appeals." However, a review of the Oldham County website confirms that the Oldham County Planning and Zoning Commission and the Board of Adjustments and Appeals are separate public agencies with related functions. Although discussion of the interrelationship between the Commission and the Board is beyond our purview, this office is not aware of any public agency identified as the "Board of Zoning, Adjustments and Appeals."
3 Although public agencies may "adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs," they must still comply with KRS 61.876(2) by posting the rules and regulations "in a prominent location...." 94-ORD-12, p. 4; 10-ORD-199.
4 Nevertheless, the parties may wish to review 12-ORD-079, a copy of which is attached hereto, for discussion of what constitutes a reasonable delay in providing access to existing public records. Given the number of individuals whose accounts the agency had to review in order to identify and locate all existing responsive e-mails, and the time frame involved, the short extension of the statutory deadline was arguably justified here.
5 As previously indicated, this office is precluded from addressing the substance of the agency's final response (see note 1), but does note that Ms. Ponder is correct in asserting that KRS 61.880(1) requires greater specificity and refers the parties to 12-ORD-211 (In re: Ponder/Oldham County Board of Adjustments and Appeals, issued November 14, 2012) for a detailed analysis of the relevant authorities. Inasmuch as the agency did not ultimately advise that any records were being withheld, nor did it specify a legal basis for doing so per KRS 61.880(1) and 61.880(2)(c), this office must assume, given the ambiguity of its response, that Ms. Ponder has been provided with all existing responsive documents. If not, in order to satisfy its burden of proof under KRS 61.880(1) and 61.880(2)(c), the Board must identify the record(s) being withheld and "include a statement of the specific exception authorizing the withholding of the record[s] and a brief explanation of how the exception applies to the record[s] withheld."
6 KRS 61.870(6) defines "custodian" as "the official custodian or any authorized person having personal custody or control of public records[.]"
7 In responding to a recent Open Meetings Appeal by Ms. Ponder, the Board advised that Mr. Urban "'acts in advisory capacity to both the Planning Commission and [the Board],'" and that having been employed in that capacity for a number of years, he possesses "'expertise in planning and zoning matters.'" 12-OMD-202 (In re: Judy Ponder/Oldham County Board of Adjustments and Appeals, issued October 31, 2012), p. 4. Accordingly, Mr. Urban "'is an employee of the [Planning] Commission as well as [the Board]'" and he "'acts in an administrative and advisory capacity to both[.]'" Id.
8 Posting the rules and regulations on the agency's website is not a recognized substitute for posting the rules and regulations in the records custodian's office nor could that option have been contemplated when KRS 61.876 was enacted in 1976 given that such technology did not exist. See 93-ORD-83 (KRS 61.876 rules and regulations must "at a minimum" be posted in the office of the agency's custodian of records); 10-ORD-199 ("broadest possible dissemination" of rules and regulations concerning access to public records "is mandated by both the letter and the spirit of the Act"). Ms. Ponder does not challenge the agency's compliance with KRS 61.876(1)(a)-(d) beyond reiterating her belief that allowing Mr. Urban to serve as the records custodian renders the rules and regulations invalid.