Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Michael Murphy appeals the failure of the Glencoe Frontier Day Committee to respond to his June 8, 2015, request for minutes of committee meetings, donation lists, and banking and disbursement records for 2012, 2013, and 2014. In response to notification of Mr. Murphy's appeal, the city attorney acknowledges that the committee "was formed by the City of Glencoe" and that it "derive[s] 25% or more of its funds from the city." 1 Counsel advises that the committee head is an unpaid volunteer who has "been advised to submit all documents, receipts, and bills to the City of Glencoe's clerk so that any information pertaining to the committee is at the city hall and accessible to the public." Continuing, she observes that, as a volunteer, the committee head:
In closing, the city attorney emphasizes that the committee head publicly stated that "she has produced all documentation that she has in her possession" and reiterates that Mr. Murphy is "free...to arrange a meeting with the clerk of the City of Glencoe and inspect and copy any and all city records."
The City of Glencoe and its Frontier Day Committee violated KRS 61.880(1) by failing to respond to Mr. Murphy's open records request in writing and within three business days. That statute provides:
If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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.
On those occasions when the recipient of an open records request is not the official custodian of those records, KRS 61.872(4) provides direction:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
It is clear that the committee head failed to discharge this duty when she received Mr. Murphy's request. It is unclear whether Mr. Murphy has now been afforded access to the records identified in his request.
KRS 83A.085(3)(b) assigns the duty of official custodian of city records to the city clerk. 2 The committee head was therefore obligated to notify Mr. Murphy that she was not custodian of the committee's records and to provide him with the name and location of the city clerk as "official custodian of the agency's public records. " The city attorney does not indicate on what date the Frontier Day committee head was "advised to submit all documents, receipts, and bills to the City of Glencoe's clerk. " Nor does she indicate whether the committee head had discharged this duty prior to Mr. Murphy's request. The city attorney does, however, indicate that, "as of the regular meeting held on July 13, 2015...Mr. Murphy has been provided access to all record keeping [the committee head] has in her possession." Unless these records were duplicates of records that were already in the city clerk's possession, the city and its committee should take appropriate steps to ensure proper records management, retention, and access. See 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. ..").
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Having acknowledged these facts, we are spared debate on the status of the committee under the Open Records Act. (Compare 01-OMD-34).
is not accepting the burden of records retention, as all city documents and information should be held by the clerk at the city hall. As such, Mr. Murphy has been provided access to all the record keeping [the committee head] has in her possession, as of the regular meeting held on July 13, 2015.
2 KRS 61.876(1) requires every public agency to adopt rules and regulations in conformity with [the Open Records Act]...to ensure efficient and timely action in response to application for inspection that include "[t]he title and address of the official custodian of the public agency's records." These rules and regulations must be displayed "in a prominent location accessible to the public...." If the City of Glencoe has not already done so, it should take immediate steps to comply with this provision in the hopes of avoiding future confusion about the identity of its official custodian of records.