Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harlan County Industrial Development Authority ("HCIDA") violated the Open Records Act in the disposition of attorney Charles Cole's requests for various records relating to a lease. For the reasons that follow, we find that the HCIDA procedurally violated the Act and subverted the intent of the Act, short of a denial of inspection, within the meaning of KRS 61.880(4).
Mr. Cole made his official request to the HCIDA on May 11, 2015, for the following:
- Copy of all minutes of meetings by the HCIDA held since January 1, 2013.
- Copy of all agendas of meetings by the HCIDA held since January 1, 2013.
- Copy of all minutes of the HCIDA held in years 2009-2012 during which the T. L. Bayne building or the Lease [and Option to Purchase between HCIDA and Harlan Countians for Progress, LLC] was discussed.
- Copy of all audio/ video recordings of meetings of the HCIDA during which the T. L. Bayne building or the Lease was discussed.
- Copy of all agendas of meetings of the HCIDA held in years 2009-2012 during which the T. L. Bayne building or the Lease was discussed.
- All meeting minutes (including motion(s)/vote(s)), resolutions, determinations, decrees, or other actions evidenced by a written document or by audio/ video recording since January 1, 2009, taken by the HCIDA Board that relates to the T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the Kentucky Department for Local Government concerning the T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the [ sic ] Tony Wilder concerning the T. L. Bayne building and the Lease.
- Copy of the Deed of Conveyance between the HCIDA and Harlan Countians for Progress, LLC signed by Tony Wilder, Commissioner, Office of the Governor, Department of Local Government on March 3, 2015 and prepared and signed by Russell D. Alred, Esq.
- Copy of all correspondence and any enclosure (s) sent to or received from the Harlan County Judge Executive concerning the T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the [sic] Joe Grieshop concerning the T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the [sic] Dan Mosely concerning the T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the Harlan County Attorney concerning T. L. Bayne building and the Lease.
- Copy of all correspondence and any enclosure (s) sent to or received from the [sic] Fred Busroe, Jr., Esq. concerning T. L. Bayne building and the Lease.
- Copy of resolution and any other document of the HCIDA approving the Lease and any video/ audio recording of such approval by the HCIDA.
- Copy of any correspondence sent to or received from Harlan Countians for Progress, LLC since January 1, 2013.
- Copy of any correspondence sent or received since January 1, 2013, that relates to the T. L. Bayne building or the Lease.
- Any audit related to HCIDA from 2013 to the present.
- Copy of all balance sheet and financial statements of or for HCIDA produced in 2013, 2014 and 2015.
- Copy of any periodic (e.g., weekly, monthly, quarterly) income and expense statement, balance statement and financial statement for HCIDA for 2013, 2014 and 2015.
- Copy of any income statement for HCIDA generated in 2013, 2014 or 2015.
Although Harlan County Attorney Russell Alred discussed the request with Mr. Cole by telephone later that week, no written response was made. We therefore find that the HCIDA committed a procedural violation of KRS 61.880(1), which requires a written response to an open request within three days, excluding weekends and holidays.
On May 22, 2015, Mr. Cole reiterated his request and asked for a written response as required by the Open Records Act. Later that day, Mr. Alred responded by e-mail, stating in part:
? I advised you that your client's request was extensive and would take some time to gather. I also advised you that the current board was recently appointed and that the prior boards had not kept very many records or minutes and what they turned over to us was obviously incomplete. ? I have no doubt that I contacted you timely and notified you that we would be working to provide information to you as soon as possible. You even indicated that you would be ok if the IDA sent the materials in several batches, because of the prior board's incomplete records and the voluminous request. ? I anticipate sending documents to you by the end of next week.
On June 1, 2015, Mr. Alred sent a letter to Mr. Cole accompanied by some records, but stated that he was still looking for others:
[T]he current Harlan County Industrial Development Board is a newly appointed Board. The previous Board kept very poor records and your requests have required extensive research ? The documents that I have enclosed in regard to the financial [ sic ] of the Harlan County Industrial Development Authority that you have requested are inclusive of the 2013, 2014, and 2015 years for Harlan County Industrial Development Authority. In addition, I have enclosed minutes that I have been able to find concerning anything to do with the T. L. Bayne Building and/or lease of the T. L. Bayne Building. Further, I have enclosed the proposed Deed as requested along with any correspondence the IDA Board had received from the Department of Local Government. I will continue to look for the remainder of items you have requested and as they are located I will forward them to you as soon as possible.
On June 5, 2015, Mr. Cole, along with attorney M. Todd Osterloh, made a further request to the HCIDA for the following:
- Copies of all agendas for all meetings of the HCIDA held or planned to be held in the years 2014 and 2015.
- Copies of all minutes for all meetings of the HCIDA held in the years 2014 and 2015.
- Copies of all recordings of any meetings of the HCIDA held in the years 2014 and 2015.
- Copies of any actions (e.g., resolutions, ordinances, decrees, etc.) taken during any meetings of the HCIDA held in the years 2014 and 2015.
The attorneys also reiterated that they were still anticipating receipt of the unfulfilled portions of Mr. Cole's May 11 request. After receiving no further communications from Mr. Alred, Mr. Cole initiated an appeal to the Attorney General on June 29, 2015.
Mr. Alred responded to the appeal on July 9, 2015. He clarified that the financial documents that had been provided to Mr. Cole included "all monthly bank statements, account balances, and ? all checks written and deposits made." Mr. Alred also indicated that the HCIDA's response to the requests "should be completed by the middle of next week," although "[i]t is believed that many of the documents requested by Mr. Cole probably do not exist or [are] not available to the current IDA Board, through the poor record keeping of the prior board." There is no indication that the HCIDA has yet completed its disposition of Mr. Cole's requests.
KRS 61.872(5) provides limited circumstances in which the disposition of an open records request may be delayed beyond three business days:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Mere difficulty in locating a record is not equivalent to the record's being "in active use, in storage or not otherwise available," nor did Mr. Alred provide a date by which the records would be produced. Furthermore, with regard to many of the records, Mr. Alred apparently could not even confirm whether they existed. "[A] public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists." 00-ORD-77 (citing OAG 91-101).
The sole reason given for the protracted delay in completing the fulfillment of Mr. Cole's requests has been the poor record-keeping of past HCIDA board members or staff. An agency's "inefficiency in its own internal record keeping system" cannot be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we find that the Harlan County Industrial Development Authority, in addition to its procedural violation of KRS 61.880(1), subverted the intent of the Open Records Act short of denial of inspection within the meaning of KRS 61.880(4).
It is to be hoped that the newly-installed leadership of the HCIDA and their staff will implement better records management procedures than their predecessors. We strongly encourage the HCIDA to contact the Department for Libraries and Archives for records management assistance and training as may be needed.
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 proceedings.