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 Taylorsville violated the Open Records Act in responding to Michael Woodford's March 6, 2014, request to inspect and copy "all floodwall documents for the Spencer Co./Taylorsville Drainage District # 1 pertaining to the years Jan. 1 of 1994 to Dec. 31 of 1995 includ[ing] law[y]er's documents from the office of city law[y]er John Dale, meeting minutes of [the] City Commission Water Dept." Having received no response to his request, Mr. Woodford initiated this appeal on March 18, 2014. We find that the city's response was procedurally and substantively deficient. Additionally, we find that the city's inability to account for responsive records raises records management issues that may warrant review by the Kentucky Department for Libraries and Archives.
In a letter dated April 1, 2014, City Attorney John D. Dale, Jr., responded to this office's notification of receipt of Mr. Woodford's appeal denying Mr. Woodford's allegation that the city violated KRS 61.880(1) by failing to respond to his request. Mr. Dale stated that City Clerk Stephen A. Biven responded to Mr. Woodford's request on March 10 in a letter erroneously dated August 10, 2013. In that letter, a copy of which was attached to Mr. Dale's response, Mr. Biven advised Mr. Woodford that he was "unable to locate any records that you requested pertaining to the Levee District from 1994 to 1995." Citing KRS 61.872(5), Mr. Biven indicated that the city would "conduct a review of records in storage" and that "a determination [would] be made by Wednesday, March 19th as to what records, if any, are held by the City of Taylorsville." Additionally, Mr. Biven advised Mr. Woodford "to contact the Spencer Co. (Ky) Levee, Flood Control and Drainage District No. 1, as they are the official custodian of all records dealing with the floodwall. " In a footnote to his April 1 response, Mr. Dale reaffirmed that the Spencer County, Kentucky, Levee, Flood Control and Drainage District No. 1 "is a separate legal entity, separate and apart from the City of Taylorsville." On March 18, 2014, Mr. Biven notified Mr. Woodford that a search of the city's archives yielded "one document . . . pertaining to the Levee District from 1994 to 1995." Mr. Dale attached a copy of Mr. Biven's March 18 letter to Mr. Woodford along with a March 30-31 email thread in which Mr. Biven confirmed with an employee of his office that Mr. Woodford inspected and obtained copies of the documents referenced in his March 18 letter.
With reference to records relating to the district, and maintained by City Attorney Dale in his private law office, Mr. Dale advised:
Since the open records request was directed to the city and not to the attorney, and since the attorney is not an officer or employee of the city but a contract attorney in private practice and, as such, believes no response is required from him but if a response should be required, it is not clear what legal documents are being requested, in guessing, presumably, some legal documents related to the floodwall 19 years ago from the attorney's private office, documents which if existed may or may not be exempt and/or privileged as attorney work product or under attorney client privilege. [Sic.]
Mr. Dale indicated that he "would be willing to see what records he can find," if Mr. Woodford "could be more specific."
On April 23, this office requested additional information from the city, pursuant to KRS 61.880(2)(c), 1 in an attempt to ascertain what role Taylorsville, and the city attorney, played in 1994 and 1995 with regard to the district. In addition, we attempted to ascertain the nature and extent of Taylorsville's and the city attorney's, search for responsive records. In response, Mr. Dale provided the following description of the district's history:
The "flood wall", actually it's a levee drainage district created in the mid 1940's under Chapter 268 of the Kentucky Revised Statutes, to construct a levee to protect the City of Taylorsville from high waters from Salt River and Brashears Creek, and, as such, it is a separate legal unity composed of three Commissioners who must be land owners in the City and who are elected annually by the land owners within the Levee. [Sic.]
The Statute allows the Levee Commission to annually increase the maintenance fee (not tax). However, to my knowledge that was never done until recently, even though the operating cost of maintaining the Levee continued to increase and collecting fess became a problem. At that time there were only about 300 to 400 resident and fewer property owners.
In 1994, no one ran for the Commission, some thinking the Army Corps of Engineers would step in and take over. The statute did not provide for the appointment of Commissioners, only for a special election.
A search of Mr. Dale's office disclosed a number of records responsive to Mr. Woodford's request, copies of which he attached to his response to our questions. With reference to these records, Mr. Dale observed:
Apparently, I contacted the Corps in behalf of the city and/or the Levee Commission since I found a letter addressed to myself from the Corp of Engineers dated June 7, 1994, advising, unless some entity assumes the responsibility for the operation and the maintenance of the Levee, it would lose its certification.
The City Commissioners and the Levee Commission apparently came to an agreement for the City to be responsible for maintaining the Levee until the next Levee Commission election to be held in 1995 since there is an Interlocal Cooperative Agreement between the City and the Levee Commission to that effect.
The Interlocal Agreement was sent to the Attorney General for approval, which was denied by a letter dated August 15, 1994.
The Attorney General was asked to reconsider, which was denied by a letter dated January 9, 1995, subsequently, an election was held in April of 1995 and Levee Commissioners were elected and the Interlocal Agreement was terminated as of June 5, 1995.
Additionally, Mr. Dale noted, "there are minutes in the city's minute book for the period of time" which the city agreed to make available for Mr. Woodford's inspection.
City Clerk Biven responded to our questions concerning the scope of the city's search as follows:
The city searched files kept by the city clerk, files kept in the on-site storage office in the back building and those records stored off-site at the sewer plant. As [Mr. Dale] suggested, we also looked for files regarding PEH engineering firm. The result was a finding of the minutes from May 2, 1995. These minutes were provided to Mr. Woodford.
He hinted at the existence of additional responsive minutes, indicating that Mr. Dale had "since gone back and found other references in the commission meeting minutes from that period and flagged them with yellow memo pads for Mr. Trageser's 2 Open Records Requests." Referencing his unavoidable absence from the office from March 21 through March 30, Mr. Biven concluded that he "did not go back and review all minute references from the period as [Mr. Dale] did, but could have made them available."
The city's March 10 response was deficient insofar as it did not contain "a detailed explanation of the cause . . . for further delay" beyond the three day statutory deadline for production of responsive records that is required by KRS 61.872(5). The city invoked KRS 61.872(5), advising Mr. Woodford that no records had been located as of March 10, that it would "conduct a review of records in storage, " and that "a determination will be made by Wednesday, March 19th, as to what records, if any, are held by the City of Taylorsville." As noted, that search yielded one record: the minutes of the Taylorsville City Commission's May 2, 1995, meeting. In response to Mr. Woodford's appeal, and this office's KRS 61.880(2)(c) request for additional information, the city and Mr. Dale undertook a more exhaustive search, locating responsive records in Mr. Dale's private office and intimating that additional responsive minutes exist and can be produced. These events indicate an inadequate search for records prior to this appeal.
In 95-ORD-96 this office established a standard by which the adequacy of an agency's search for public records should be measured. We concluded that a public agency must "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. Thus, the agency must expend reasonable efforts to identify and locate the requested records." 95-ORD-96, p. 5, citing Cerveny v. Central Intelligence Agency, 445 F.Supp 772, 775 (D. Col. 1978). In response to our questions, the city described a search of "files kept by the city clerk, files kept in the on-site storage office in the back building and those records stored off-site at the sewer plant," and, at Mr. Dale's suggestion, a search of "files regarding PEH engineering firm. " The city did not identify the files actually inspected, other than "files regarding PEH engineering firm, " and we cannot therefore, be satisfied that it "conducted a search using methods which could reasonably be expected to produce the records requested," 95-ORD-96, p. 5, or that it "directed its search not only to the first and most obvious place where responsive records could be located but to all places that might yield responsive records." 12-ORD-153, p. 4. Based on the nature and number of records located by the city and Mr. Dale after Mr. Woodford initiated this appeal, we find that the city failed to conduct an adequate search for records responsive to his March 6 request. Given the location of the majority of the records, we also find evidence of records mismanagement.
Mr. Dale originally questioned the status of records responsive to Mr. Woodford's request that he maintained in his private office as public records for open records purposes. In our KRS 61.880(2)(c) request for additional information, we noted that in 04-ORD-123 this office determined that records relating to drainage in the City of Windy Hills that were maintained in the private office of the city's attorney were held by the attorney "at the instance of and . . . on the city's behalf." Citing City of Louisville v. Brian Cullinan , 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1998), 3 we concluded that "[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." Like the records at issue in 04-ORD-123, the records at issue in this appeal that were belatedly located by Mr. Dale in his private office are public records to which Mr. Woodford should have originally been afforded access.
The fact that Mr. Dale expressed uncertainty as to the existence of responsive records in his private office, and the paucity of records ultimately produced, suggests that no systematic records management program for these records was ever implemented. A review of the records located in Mr. Dale's office suggests the existence of other records not produced. For example, Mr. Dale references a 1994 letter to the Army Corps of Engineers and produces a copy of the Corp of Engineers responsive letter. He is, however, unable to produce a copy of the letter he sent to the Corp that prompted that response. Additionally, the minutes of a July 12, 1994, meeting of the Taylorsville Board of Commissioners indicate that the board took action to appoint an administrator and clerk/ treasurer for the drainage district during the period when the district had no governing board, and to authorize these appointees to sign checks "while acting under the jurisdiction of the City of Taylorsville." No records were located, however, that reflect the city's exercise of jurisdiction. Finally, the records which Mr. Dale located in his office reflect that the city and the district unsuccessfully attempted to enter into an interlocal agreement to "manage, maintain, and operate" the floodwall "since there were no candidates who ran for Levee District Commissioners in the 1994 election, " and that Mr. Dale corresponded with the Office of the Attorney General to that end. No records exist, however, that reflect public discussion of this decision or the events that led up to the interlocal agreement or that followed notification from the Attorney General that the interlocal agreement was disapproved.
Notwithstanding the city's repeated assertions that the drainage district is a separate legal entity, it is clear that the city played an active role in the district's operation and functions in the period specified in Mr. Woodford's request. As noted, it is the records of the city relating to its role, and not the records of the drainage district, a nonviable entity during this period, to which Mr. Woodford seeks access. The city's inability to originally locate them, and to belatedly locate them in the private offices of its attorney, is indicative of a failure on the part of the city to "establish and maintain an active, continuing program for the economical and efficient management of" agency records. KRS 171.680(1). Given the essential relationship between records management, under Chapter 171 of the Kentucky Revised Statutes, and records access, under Chapter 61 of the Kentucky Revised Statutes, that is statutorily recognized in KRS 61.8715, we have referred this matter to the Kentucky Department for Libraries and Archives for further inquiry as the Department deems warranted.
If it has not already done so, the city should make immediate arrangements with Mr. Woodford for his review of "the meeting minutes from that period [that Mr. Dale] flagged with yellow memo pads for Mr. Trageser's Open Records Requests."
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:
Michael WoodfordStephen A. BivenJohn D. DaleBarbara Teague
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
2 Apparently, another request pertaining to the drainage district was filed by a separate requester during this period.
3 City of Louisville v. Brian Cullinan is an unpublished opinion that, in accordance with Rules of Civil Procedure 76.28(4)(c), cannot be cited or used as authority in any court of this state.