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 Spencer County Fiscal Court violated the Open Records Act in denying Lawrence Trageser's October 29, 2013, request for "all documents reflecting the applications for building permits for the radio tower located at the Spencer County Road Barn site. " The fiscal court issued a timely written response denying Mr. Trageser's request based on the nonexistence of an application for a permit to construct a radio tower at the designated site but provided Mr. Trageser with a copy of the application for a permit to construct a utility building at the same location. It was the fiscal court's position that 13-ORD-062 was controlling on the issue of access. Although the fiscal court cannot produce a record that no longer exists, and the issue of the fiscal court's discharge of its records access and records management duties with respect to the radio tower permit was addressed in 13-ORD-062, we find that the destruction of the application for that permit raises additional records management issues that is appropriate for review under Chapters 61 and 171 of the Kentucky Revised Statutes.
On appeal, Mr. Trageser asserts that the application for a permit to construct the radio tower once existed but "[Spencer County Judge/Executive William] Karrer pulled the application for permit and reportedly destroyed it." He presents evidence to support this belief in the form of:
1. A report generated by the Kentucky Department for Libraries and Archives following a referral from the Office of the Attorney General in an open records appeal that culminated in the issuance of 13-ORD-062. In the section captioned "PRD [Public Records Division]" Actions, the KDLA staff member recounts a conversation with Taylorsville-Spencer County Joint Planning and Zoning Commission Administrator Julie Sweazy in which she recalled:
The report also references a conversation with Spencer County Building Inspector Steve Clark who stated that:
2. An article from The Spencer Magnet dated December 5, 2013, in which Judge Karrer is quoted as having said, "I don't think there was a permit needed, so I got my application back. I didn't destroy a permit, I destroyed the application."
3. Copies of his applications for building permits, the first a hard copy of the application for a permit to construct the utility building on which Judge Karrer's signature appears and the second a printout of the electronic application for a permit to construct the radio tower which does not bear Judge Karrer's signature but is otherwise fully executed.
4. A November 20, 2012, letter to the Spencer County Building Inspector from Judge Karrer in which the Judge advised that he is "cancelling [his] application for the permit."
5. A December 28, 2012, letter from the Planning and Zoning Administrator to the Spencer County Fiscal Court requesting the return of information pertaining to the radio tower and utility building to be located at 843 Fairgrounds Road that was submitted to her office but "retrieved" by Judge Karrer.
It is Mr. Trageser's position that denial of his request based on the nonexistence of the application for a permit to construct a radio tower, in the face of overwhelming evidence that the application exists or existed, constitutes a violation of the Open Records Act.
In supplemental correspondence directed to this office after Mr. Trageser initiated this appeal, the fiscal court asserted that "the Kentucky Attorney General's Office has already issued an opinion on this matter on April 30, 2013, 13-ORD-062," and that Mr. Trageser's recourse lies in the courts. As noted above, we disagree with the fiscal court's position inasmuch as 13-ORD-062 addressed the radio tower and building permits only and not the applications for those permits . Given the fact that KRS 61.8715 recognizes "an essential relationship between the intent of [Chapter 61 as it relates to records access] and that of [Chapter 171 as it relates to records management]," we believe that the inability to produce the application for the permit due to the record's destruction has open records implications that justify review under KRS 61.880(2).
The record before us contains uncontradicted evidence that the completed application for a permit to construct a radio tower was destroyed. Authority "to determine questions which relate to destruction of public records" resides in the State Archives and Records Commission and not in individual public officials or employees. KRS 171.420(3). The Commission has done so with respect to building permits, and the applications and documentation supporting those permits, at Records Series L4982 of the "Local Agency Records Retention Schedule." That series "documents application by a property owner to build and/or alter a building on property" and is assigned a fixed retention of five years. The series does not distinguish between applications for which a permit is issued, applications for which a permit is denied, or applications on which final action is never taken because they are withdrawn or because action on them is suspended. Regardless of whether a permit was required, premature destruction of the application for the permit to construct a radio tower suggests a lack of awareness of, and adherence to, proper records management practices described in Chapter 171. Further, it thwarts the public's right of access to the application in derogation of Chapter 61. Whether it constitutes a criminal offense under KRS 519.060 is a question for the prosecutorial authorities and ultimately for the courts.
In 12-ORD-112 the Attorney General determined that a school district "lacked legal authority" to destroy letters written by students to the parents of a classmate who committed suicide. At page 6 of that decision, we observed:
Destruction of public records is governed by state law and regulation. Specifically, KRS 171.420(3) assigns the duty to "review and approve schedules for retention and destruction of records" and "determine questions which relate to destruction of public records" to the Archives and Records Commission, established under authority of KRS 171.420(1). That statute operates in tandem with 725 KAR 1:061 which incorporates each of the retention schedules, by reference, into administrative regulation. Whatever the rationale supporting the district's decision to shred the student letters, its actions were inconsistent with KRS 61.8715, recognizing "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 . . . ."
Given the existence of tangible proof supporting the existence of a signed application for a permit to construct a radio tower, we reach the same conclusion here. The fiscal court lacked legal authority to destroy a record "used to ensure compliance with established requirements of the regulatory agency" charged with oversight. Records Series L4982, "Local Agency Records Retention Schedule." The decision to do so abridged the laws governing records access and records management.
For this reason, we again refer this matter to the Kentucky Department for Libraries and Archives under authority of KRS 61.8715. We are aware that KDLA has already expended considerable time in attempting to promote broader and better understanding of sound records management practices, but the fiscal court's response to the issue presented in this appeal suggests that additional efforts may be warranted.
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.