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 Elsmere Fire Protection District violated the Open Records Act in partially denying Lynn Lawrence's May 28, 2013, request to review the district's:
. purchasing policy, all bids and purchases made during the 2011 and 2012 fiscal years, and all bids and purchases made since July 1, 2012;
. personnel and compensation policies;
. code of ethics; and
. training offered or provided to the Trustees in the last three years.
In a separate request bearing the same date, Ms. Lawrence requested access to:
Complete personnel records [for four named district employees], including but not limited to: position held, position job descriptions, salary in each position, resume, educational experience, training, certifications, information regarding the employee's ability to discharge the responsibilities of public employment in their current position, reprimands, and disciplinary actions.
In addition, she asked to inspect "documents used to evaluate the applicants or employees considered for the position of EMS Coordinator." We find that the district's response to Ms. Lawrence's request was only partially consistent with the requirements of the Open Records Act. To the extent inconsistent with these requirements, the district violated the Act.
On May 29, 2013, district counsel notified Ms. Lawrence that "Chief [Paul] LaFontaine and Pam LaFontaine are out of town on vacation" until June 3, and that counsel "need[ed] to meet with them to respond" to her requests. Having received no further correspondence concerning either request, on June 7, 2013, Ms. Lawrence initiated this appeal.
In correspondence directed to this office following submission of Ms. Lawrence's appeal, district counsel advised that Chief LaFontaine and Pam LaFontaine returned to work on June 4, that he subsequently met with them, and that the district's response "was mailed to [Ms. Lawrence] on June 10, 2013." Counsel attached a copy of the response in which the district agreed to make available for her inspection purchasing policies and purchases made during the referenced period, personnel and compensation policies, an "invitation letter" to training for special taxing districts provided by the Kenton County Attorney's Office on May 30, 2013, the complete personnel files for the four named employees, and "[t]he EMS Coordinator position description." Counsel advised that there were no bids during the referenced period, that there is no code of ethics, that no other training was offered to the trustees, and that Ms. Lawrence previously requested, and was permitted to inspect, documents used to evaluate applicants for the EMS Coordinator position.
After reviewing the available records on June 17, 2013, Ms. Lawrence complained to this office that she was not permitted to inspect:
. the district's purchasing policy and any purchasing information;
. the district's "approved personnel and compensation policy";
. information pertaining to two trustees' attendance at "training relating to their positions" about which she had personal knowledge;
. personnel records reflecting "positions held, position job descriptions, salary in each position, . . . [and] the employees' ability to discharge the responsibilities of public employment in their current position;" and
. records used to evaluate applicants considered for EMS Coordinator.
Ms. Lawrence's letter contained no indication that she transmitted a copy to the district or district counsel. Although this omission impedes our ability to fully review the substantive issues in this appeal, we find that the district's response was procedurally deficient.
The Attorney General has long recognized that the absence or unavailability of an agency's records custodian does not toll the agency's three business day statutory deadline for response. See, e.g., 94-ORD-86; 96-ORD-185; 98-ORD-161; 00-ORD-226. In the latter decision, we stated that "in the event the official custodian is absent, 'an individual should be appointed acting custodian to respond to open records requests in a timely fashion.'" 00-ORD-226, p. 2, citing 94-ORD-86, p. 4; accord, 06-ORD-131. KRS 61.880(1) mandates that an agency's response to an open records request shall be issued within three days, excepting Saturdays, Sundays, and legal holidays, and that response "shall constitute final agency action." Nothing in the statute permits the indefinite postponement of final action, and the district did not fulfill this statutory duty by notifying Ms. Lawrence, within three business days, that final action on her request must await the return of the chief. The district violated KRS 61.880(1) by failing to issue a final written response to Ms. Lawrence's request within three business days.
In its belated response, the district agreed to disclose all available records responsive to Ms. Lawrence's request with the exception of nonexistent records consisting of bids and a code of ethics. Upon inspection, Ms. Lawrence objected that the district failed to produce a number of records it had agreed to disclose. She did not, it appears, share her objections with the district. Accordingly, the district had no opportunity to respond to these objections. If a discrepancy in fact existed between the records requested and the records produced, we know of no legal basis for denial. Ms. Lawrence's requests were confined to financial, operational, and personnel records that do not enjoy protection under the Open Records Act and that the district agreed to disclose in its final response. 02-ORD-208, citing OAG 90-30 and 96-ORD-50 (recognizing that "where public funds go, the public's interest follows"). While the district had no obligation, under the Open Records Act, to create records to fulfill her request, 1 such as bids or a code of ethics, it was obligated to make full disclosure of the existing records identified in her May 28 requests which it agreed to disclose in its June 10 response. Should Ms. Lawrence submit future requests for the same records, the district may consider alternative bases for denial of those requests if she offers no explanation for the duplicative nature of those requests. 95-ORD-105; 98-ORD-154; 99-ORD-107; 02-ORD-141; 04-ORD-018; 12-ORD-152.
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:
Lynn LawrencePaul LaFontaineSteven C. Martin
Footnotes
Footnotes
1 See, e.g., OAG 86-38; OAG 90-69; OAG 91-220; 95-ORD-82; 00-0RD-133; 01-ORD-216.