Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Reverend Russell, of the National Investigative Report , initiated this appeal challenging the disposition of his September 14, 2015, request by the City of West Buechel. By letter directed to "City Clerk -- Open Records" 1 on September 14, 2015, Rev. Russell asked for the following:
1) All documents pertaining [to] and showing the loan that Chief Gary Sharp took from an account.
2) All documents pertaining [to] and showing how and where the loan was paid back by Chief Sharp.
3) All documents pertaining [to] and showing what Chief Sharp and the police dept[. have] spent or brought [sic] for all of 2014 [a]nd up to current date in 2015.
Rev. Russell asked that if the City Clerk had any questions to "please contact me by phone" but noted that he was much easier to reach via e-mail; he also provided his mailing address in case it was necessary to mail hard copies of the records to him.
By e-mail directed to Rev. Russell on September 16, 2015, City Clerk/Treasurer Kim Richards advised, "See attached." However, by e-mail sent later that day after business hours, Rev. Russell notified the City Clerk that he was unable to open the attachment to her e-mail. Rev. Russell advised that when he attempted to view the content "[i]t looked like code. Seems to me to be a virus because the protector went off on my system. You might have to send it a different way, please." Having received no additional response, Rev. Russell notified the City Clerk that he remained unable to view the records "with no viruses" by letter dated October 8, 2015, and that he would initiate an appeal with the Attorney General if he did not receive the records by October 12, 2015. By e-mail sent on October 12, 2015, Ms. Richards advised Rev. Russell that "[a]ttached is the response to your open records request of 9/14/2015." In a letter dated September 16, 2015, but sent to Rev. Russell on October 8, 2015, the City Clerk advised that Chief Sharp received a loan from the City in 2013. Chief Sharp paid back the loan via payroll deduction. The City Clerk asserted that "[a]ll documents are currently in the hands of the Kentucky State Auditors and are unavailable to us at this time. Mayor Richards has verified that the loan was paid back in full."
By letter dated November 23, 2015, but received in this office via fax on December 7, 2015, Rev. Russell initiated this appeal. In addition to all of the referenced correspondence, Rev. Russell provided a copy of an e-mail that he received from Jettie Sparks of the Auditor of Public Accounts in response to an inquiry that he made regarding the City of West Buechel. The Auditor's Office advised Rev. Russell that "it is not our office's practice to take any original documentation from the entity we are reviewing or auditing. Any information we have are copies of documents or information that we were provided through email by the City." In light of this information, Rev. Russell contacted the City Clerk by letter dated October 16, 2015, enclosing a copy of Ms. Sparks' e-mail in support of his position that her basis for not producing any responsive documents was invalid. Rev. Russell further advised that he would expect to receive the records by October 21, 2015. By e-mail dated October 20, 2015, the City Clerk advised Rev. Russell that she had attached "the information requested regarding the loan payback from Gary Sharp." Rev. Russell was again unable to open the attachment to the City Clerk's e-mail as the documentation attached to his appeal confirms.
Upon receiving notification of Rev. Russell's appeal from this office, the City Clerk responded on behalf of the City of West Buechel. The City Clerk advised that on two occasions "I sent an email to Rev. Russell with an attached file containing the document he requested. For reasons unknown to me, Rev. Russell was unable to properly open the attachment. Therefore, I am enclosing the requested document with this response, as well as sending it to Rev. Russell via U.S. Postal Service." The City Clerk included a copy of her December 21, 2015, letter to Rev. Russell as well as the only document provided, which appeared to be a pay stub. The name "Gary Sharp" was handwritten on the document. Among the other deductions listed was one identified as "LN -- Loan" in the amount of $ 980.73. To avoid further confusion or delay, this office subsequently confirmed via e-mail that Rev. Russell had received the hard copy of the document provided via U.S. mail. Rev. Russell confirmed that he did receive the document but correctly asserted that nothing in the document objectively confirmed that it was the pay stub of Chief Sharp aside from his name being handwritten on it; he further advised that a canceled check was missing "that they have but did not send." Rev. Russell cited a Report by the Kentucky Auditor of Public Accounts in support of this assertion. 2 This office forwarded Rev. Russell's correspondence to the City Clerk via fax in order to afford her the opportunity to address the concerns that he raised concerning the existence of additional responsive documentation. The City did not opt to reply.
A public agency such as the City is required to comply with substantive and procedural requirements of the Open Records Act regardless of the requester's identity or purpose in requesting access to records. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to written requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. The Attorney General has frequently noted this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3.
In construing KRS 61.880(1) the Attorney General has also consistently observed:
Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3 . . . .
01-ORD-140, pp. 3-4 (original emphasis); 06-ORD-147; 07-ORD-179; 10-ORD-201; 14-ORD-026. As in 01-ORD-140, this office must conclude that in failing to produce any existing responsive documents within three business days, the City violated KRS 61.880(1) as it did not invoke KRS 61.872(5).
Although the City Clerk issued a response to the Rev. Russell's September 14 2015, request within three business days per KRS 61.880(1), that response was otherwise deficient insofar as the City failed to either provide Rev. Russell with access to all existing responsive documents within that period of time or cite the applicable statutory exception(s) and explain how it applied to any records being withheld. 3 The City failed, in the alternative, to expressly invoke KRS 61.872(5), 4 the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents in addition to a specific date when such documents would be made available. See 12-ORD-151; 13-ORD-035. Noticeably absent from each response by the City is any reference to KRS 61.872(5). Equally lacking is the statutorily required explanation of the cause for delay. See 08-ORD-021. The only explanation belatedly provided was that all such records were in the possession of the Auditor's Office, and thus unavailable, a position which Rev. Russell subsequently refuted. Assuming the records being sought were "in active use, in storage or not otherwise available" for some other reason, the City failed to specify which of these permissible reasons for delay applied, if any.
The responses provided on behalf of the City also lacked the specificity required under KRS 61.880(1), pursuant to which a "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. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. These requirements must be satisfied for a public agency to satisfy its burden of proof under KRS 61.880(1) and (2)(c). 04-ORD-106, p. 6; 13-ORD-051.
The City did not initially advise whether additional responsive documents existed, such as documents reflecting expenditures by Chief Sharp and the Police Department, nor did the City indicate as much in response to Rev. Russell's appeal. However, "Finding 10" of the Examination (see note 2) regarding the City of West Buechel verifies that, "Regarding the Chief of Police, a canceled check was found that stated 'Loan' on the memo line." Such a check is clearly responsive to Rev. Russell's request and should have been provided if still in existence. The City made no reference to any canceled check initially nor did the City opt to confirm or deny that such a check exists in the possession of the agency on appeal in response to Rev. Russell's claim. If the check no longer exists for some reason, which suggests a records management issue, the City was required to specifically indicate as much in a written response to Rev. Russell at a minimum.
A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").
However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In other words, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225. Thus, a public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that records being sought do not exist following a reasonable search, and explaining why. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205; 14-ORD-204. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 09-ORD-145.
It was "therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to [Rev. Russell's] request, to promptly advise [him] of [its] findings, and to release to [him] all existing [nonexempt] records identified in [his] request." 03-ORD-207, p. 3; 12-ORD-162; 15-ORD-018. The City violated the Open Records Act in failing to specify whether any documents existed relative to item 3 of Rev. Russell's request and explain why if not. In addition, the City violated the Open Records Act in failing to either provide Rev. Russell with a copy of the responsive canceled check, existence of which is confirmed in the Auditor's Examination, or provide a written explanation for the inability to provide a copy that check. In sum, the City's response was both procedurally and substantively deficient. See 09-ORD-150 (agency violated the Act in failing to provide a "sufficiently detailed response affirmatively indicating whether [it] possesses any responsive [documents] and specifying which of those records, if any, to which access is being denied"); 07-ORD-141; 14-ORD-225.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 Pursuant to KRS 83A.085(3)(b), the city clerk is required to perform the duties "of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882."
2 See "Examination of Certain Policies, Procedures, Controls, and Financial Activity of the City of West Buechel" issued by the Performance and Examination Audits Branch of the Auditor of Public Accounts on December 10, 2015, publicly accessible on the Auditor's website, http://auditor.ky.gov/Pages/default.aspx, a copy of which this office independently obtained.
3 Generally speaking, however, the financial and operational records of a "public agency" are open for inspection. 05-ORD-065, p. 9. See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 91-7 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records"). See also 10-ORD-140.
4 KRS 61.872(5) states:
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.