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 City of Indian Hills violated the Open Records Act in the disposition of four requests from John McCarty. For the reasons that follow, we conclude that the city violated KRS 61.880(1) if it failed to respond in writing to a request dated June 10, 2015; otherwise, we find that the City improperly denied one portion of a request dated May 13, 2015.
Mr. McCarty made what he describes in his appeal as "four separate request[s] for information" to the city. The emphasized text below pertains directly to his requests for records:
Request 1 , May 3, 2015, by e-mail: "Please advise me by return email of such time I can obtain from the Fairfax office a copy of the Indian Hills audited financial statements for FY ending 2006 thru 2014 and the financial disclosures required by city ordinances 3.08.050 and 3.08.060 for the corresponding period."
Request 2 , May 4, 2015, by e-mail: "[P]lease name the investment advisors and any administrators of the General and Road funds for the corresponding period."
Request 3 , May 13, 2015, by mail:
All Conflict of Interest statements, acknowledgements and associated council communications for the past three years; "Copies of all emails, letters and other correspondence between the city and Jim Graven and Steepleton, as well as emails, letters and correspondence between Jim Graven and Steepleton in his official capacity; Access to all accounting records for the past three years; and Access to the City Council minutes for the past three years .
Outstanding from my request of May 4 are audits for the FYE 2006-2012 and information regarding the management of the City's funds.
Request 4 , June 10, 2015, by mail, addressed to Foster L. Haunz, Esq., City Attorney:
Q1 Are you the Official Custodian for the City, and if not, provide name and address of the Official Custodian of the City's records.
?
Q2 Please describe the location of the notice required by KRS 61.876.
?
Q3 Please provide the text of KRS 621
?
Q4 Please describe how the Official Custodian maintains records located in so many disparate places. Consider my fourth request to include an inspection of the log of all City records .
?
Q5 Are the cash receipts journals, the cash disbursement journals, the general journal entries and the general ledger maintained in electronic form?
?
Q6 Please provide copies of the documents contemplated in City Ordinances 2.32.050 and 2.32.060 as clarification for ORR # 3-1 per your Letter. Consider as part of my Fourth Request copies of all minutes of and communications with the City's Board of Ethics as describe [ sic ] in City Ordinance 2.32.180 .
?
Q7 Describe how the City segregates email communications involving the City from personal communications for the purpose of compliance with the Open Records Act? Included as part of my Fourth Request for Open Records, provide copies of the reports required in City Ordinance 2.25.060 .
?
Q8 Please describe or provide documentation which reflects the organizational controls maintained by the City . Evidence of these controls would include, but not be limited to: Policy and Procedure Manuals, Board Minutes authorizing oversight and controls, and information and correspondence with the City's Officers regarding each of their respective duties . Policies might include such things as the frequency for updating our City's website to reflect current and accurate information.
(Emphasis added.)
On May 6, 2015, after the first two requests, Mr. McCarty was advised that City Attorney Foster Haunz, who "regularly handled" open records requests, was on vacation, but Mr. McCarty could contact the mayor or city treasurer "in the meantime." The treasurer evidently provided the city's audit reports for 2012 through 2014 to Mr. McCarty on May 8, 2015.
Mr. Haunz on May 19, 2015, issued a comprehensive response to the first three requests. He first mentioned: "Normally we do not honor requests by e-mail as that is not statutorily approved. We are nevertheless responding to you without waiver of this deficiency." Next, he asked for a statement as to whether Mr. McCarty's requests were for a commercial purpose. Mr. Haunz then noted:
Indian Hills does not have a City Hall unfortunately. Records are not located at a single location. For the most part, our City Treasurer, Robin Roberts, CPA maintains the financial records of the City, working closely with the Mayor and City Council.
With regard to the audit reports for fiscal years 2006-2011, Mr. Haunz advised that they had been requested and received from the auditors and "will be forwarded to you under separate cover." He also indicated that the budget information had been provided by the city treasurer via e-mail that same date. Addressing Request 2 dated May 4, Mr. Haunz replied that it "does not relate to a document."
Turning to Request 3, Mr. Haunz stated that "Conflict of Interest statements, acknowledgements and associated council communications" did not exist. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We are aware of no established law, policy, or practice pursuant to which such records would exist unless a conflict of interest has been reported; nor does anything in the record establish that such a report has been made. Therefore, based on the city's representations, we find no substantive violation of the Act.
In response to Mr. McCarty's request for "all e-mails, letters and other correspondence between the city and Jim Graven and Steepleton, as well as e-mails, letters and correspondence between Jim Graven and Steepleton in his official capacity," Mr. Haunz stated: "This request is too broad and too ambiguous to answer. Also, the request calls for preliminary drafts exempted under KRS 61.878(1)(i)." This response does not make an adequate showing to justify the nondisclosure.
We find no patent ambiguity in this portion of the request, with the understanding that "Steepleton" is a business entity with which Mr. Graven is associated. E-mails, letters, and correspondence are not ambiguous terms. To the extent that the request is not limited by a time frame, the city should not be overly burdened by this request if it has followed its records retention schedule. Finally, if any preliminary drafts are contained within the scope of the request, the city must segregate the exempt material and produce the remainder. KRS 61.878(4). Therefore, we find that this portion of the response was inadequate to support the withholding of the requested records.
With regard to the remainder of Request 3, Mr. Haunz indicated that "[t]he monthly Finance Reports will be made available to review at the site of Foster Haunz's Law Office, Attorney for the City." The city council minutes, he stated, "[w]ill be made available, by appointment agreed by Mr. McCarty and by Mr. Haunz, to be reviewed at the site of Foster Haunz's Law Office, Attorney for the City; or copied and mailed to Mr. McCarty."
Mr. McCarty appealed to this office on August 3, 2015, indicating that he had received no response to Request 4 dated June 10, 2015. In a response to the appeal dated August 13, 2015, Mr. Haunz states:
What Appellant requested reads like interrogatories prepared by an attorney, not a request for documents, and he was so advised. In fact, his requests were so ambiguous that all the City could do was to make the records available at a definite location. See Page 4 of the Respondent's Response dated May 14, 2015. Appellant did not avail himself to [ sic ] that opportunity.
This statement appears to be intended to refer to a response that is not in the record; at least, Mr. Haunz's letter of May 14 could hardly have responded to Mr. McCarty's of June 10. It is unclear whether the missing response was written or oral. If the city failed to issue any written response to the June 10 request, then it violated the requirement of KRS 61.880(1) that a written disposition of an open records request be made within three days, excluding weekends and legal holidays.
Substantively speaking, if the city afforded Mr. McCarty an opportunity to inspect the requested records, it complied with the Open Records Act. The Act does not create a universal right to obtain copies of public records by mail. Rather, the basic right is described in KRS 61.872(2) as "the right to inspect public records. " (Emphasis added.) KRS 61.872(3)(b) gives some applicants the option of obtaining copies by mail instead of inspecting the records, but it is only those applicants whose "residence or principal place of business is outside the county in which the public records are located." From all indications, Mr. McCarty does not fall within this category. Assuming that to be true, the agency could lawfully require him to inspect the records in person and make any copies himself. Cf. 09-ORD-173.
The only question, in that case, is whether the locations proposed were suitable. A public agency is required by KRS 61.872(1) to make "suitable facilities ? available" for inspection of public records. 03-ORD-083. Mr. Haunz advises:
Respondent is a small City containing about 3,000 people. It has no City Hall but does have a Police Station. City records are largely kept by the City Treasurer and by the Mayor, with some older records stored at the Police Station. The City's offer was to consolidate the records for viewing at the office of the Attorney for the City located about five miles from the City. The Fairfax Avenue address furnished to Appellant [ i.e. , the mayor's office] is approximately two miles from Indian Hills. These locations are easily accessible for the stipulated purpose.
Given the size of the city and its lack of extensive facilities, we do not regard either of the locations proposed to Mr. McCarty as inherently unsuitable for the purpose of inspection of the city's records. 1 Therefore, the substantive offer of inspection made to Mr. McCarty was in compliance with the Open Records Act.
In conclusion, we find that the City of Indian Hills failed to make an adequate justification for denial of the e-mails and other correspondence included in Mr. McCarty's third request. If there was no written response to the fourth request, then the city violated the procedural requirements of KRS 61.880(1), although its substantive offer of inspection was proper in light of KRS 61.872(3). In all other respects, we find no violation of the Open Records Act. 2
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.
Footnotes
Footnotes