Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the City of Taylorsville's March 11, 2014, disposition of his March 6, 2014, request for "any and all landline and cell phone records for the City of Taylorsville Police Department, to include City of Taylorsville issued cell phones for Police Officers Todd Walls and Daniel Wills" from September 12-13, 2013, and to include all incoming and outgoing calls. In a timely written response, City Clerk Stephen A. Biven responded on behalf of the City, advising that landline and cell phone records for both of the named officers "are now available at City Hall for you to review. The documentation you sought does not contain itemized phone calls and therefore according to KRS 61.872(5) [those calls] are not available at this time." The City further indicated that it would contact its telephone service provider (AT&T) but anticipated having such documentation available for inspection by Friday, March 21, 2014, at 1:00 p.m.
By letter dated March 21, 2014, City Attorney John D. Dale, Jr. supplemented the City's initial response. Mr. Dale advised that cell phone records for Officer Walls from September 12-13, 2013, were attached. The City was unable to provide Officer Wills' police cell phone records for those dates because Officer Wills had experienced problems with his police cell phone and therefore had not used it since August 2013. 1 Mr. Dale further advised that "phone records for the City Police landline that would cover those dates" were also enclosed. However, those records "did not reflect calls made or received because the City's phone plan does not provide that information." Mr. Dale observed that although Mr. Trageser "did not request a listing of landline calls for those dates," 2 an itemized listing "apparently can be obtained from the phone company by court order as set forth in the attached copy of an email dated 3/18/14, from AT&T, KRS 61.872(5); KRS 61.880(1)." 3
Mr. Trageser initiated this appeal by letter dated December 28, 2015, focusing on the City's failure to provide an itemized listing of calls made from the Police Department landline (s) during the relevant period. Upon receiving notification of his appeal from this office, Mr. Dale supplemented his response on behalf of the City. Having summarized the procedural history, Mr. Dale emphasized that, notwithstanding the acknowledged typographical error (see n. 2), the City provided Mr. Trageser "with the records it had regarding the information he requested and explained to him the records it did not have regarding the information he sought and who had that information and how it could be obtained." The City otherwise focused on the delay between its disposition of Mr. Trageser's March 6, 2014, request and Mr. Trageser's December 28, 2015, appeal challenging the disposition of that request. 4
Although the General Assembly has recognized "an essential relationship" between the intent of the Open Records Act and the intent of Chapter 171 of the Kentucky Revised Statutes, relating to management of public records, at KRS 61.8715, the Act only applies to "public record[s]," a term which is expansively defined at KRS 61.870(2). 5 Our decisions in disputes arising under the Open Records Act are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record(s), and, if so, whether the record(s) is open to public inspection. 99-ORD-202, p. 2; 09-ORD-073. In other words, the Open Records Act only applies to records which are in existence, and in the possession or control of a public agency. 99-ORD-202, p. 5. "It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. " Id. 6 If the City had opted to receive itemized telephone billing statements under its contract with AT&T, those records would be "accessible as non-exempt public records. " 99-ORD-202, p. 2. However, existing legal authority confirms the Attorney General is "not empowered to declare, in the context of an open records appeal, that [the City's] failure to require that the records be submitted to it, and managed and maintained as public records, constitutes a violation of the Open Records Act. " Id. See 06-ORD-201; 12-ORD-098.
Early on, this office clarified:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277); 99-ORD-202. Here, as in 99-ORD-202, the "custodian" of the records in dispute is a private company (AT&T) under contract with a public agency (the City). Because a private contractor such as AT&T cannot be properly characterized as a "public agency" within the meaning of KRS 61.870(1), it necessarily follows that such records are not "public records" within the meaning of KRS 61.870(2), as they are not "prepared, owned, used, in the possession of or retained by a public agency. " Id., p. 3.
In so holding, the Attorney General relied on 95-ORD-125, in which this office held that the Louisville Firefighter Pension Fund properly denied a request for "confirmation tickets" documenting investment transactions executed on its behalf by a private corporation hired to manage the assets of the agency. Because the Fund neither possessed nor used the documents, the "confirmation tickets" could not properly be characterized as "public records" within the meaning of KRS 61.870(2). 7 At page 6, the Attorney General reasoned:
Although the Fund was entitled to the confirmation tickets from the investment company, it determined they were not needed because information contained in them [was] adequately set out in the monthly accounting statements.
It is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency in deciding what records need to be created or retained. Under the facts of this case, the Fund acted consistently with the provisions of the Open Records Act.
In reaffirming this position, the Attorney General partially relied on Forsham v. Harris, 445 U.S. 169, 186, 100 S. Ct. 978, 987, 63 L. Ed. 2d 293 (1980), and Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S. Ct. 960, 969, 63 L. Ed. 2d 267 (1980), in which the United States Supreme Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of [the Freedom of Information Act, 5 USCS § 552]." Forsham at 63 L. Ed. 2d 305. In rejecting the notion that a public agency's right of access, and the corollary right to obtain custody of records brought same within the purview of the FOIA, the Supreme Court determined that "FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Forsham at 63 L. Ed. 2d 307. Conceding that the Open Records Act does not track the language of the FOIA, in 99-ORD-202 this office noted the laws are identical in at least one critical respect: "Neither law imposes a duty on the public agency to create records." Id., p. 5. Accordingly, the Attorney General concluded that the holding in Forsham "applies with equal force to agencies governed by the Open Records Act. " Id. Ordering a public agency to exercise its right of access would effectively be "compelling the agency to 'create' an agency record since prior to that exercise the record was not a record of the agency." Forsham at 63 L. Ed. 2d 308, cited in 99-ORD-202, p. 5; 08-ORD-206.
This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability. " 08-ORD-206, p. 1. Of particular significance, in 02-ORD-164 this office specifically recognized that a public agency, which had "acknowledged its duty to disclose routine billing documents supporting fees to be paid" for cellular telephone use, was "not obligated to obtain itemized billing records from its provider in order to satisfy [a] request, notwithstanding [the requester's] concern that [the records provided did] not contain the specific information that [he sought]." 02-ORD-164, p. 5. Rather, the agency "satisfied the requirement of public accountability recognized in City of Louisville v. Cullinan [citation omitted]" by disclosing the "existing public records documenting public funds expended for use of cellular [and landline] telephones under its contract with a private provider. " Id. As in 02-ORD-164, this office concludes that the public agency is not "statutorily obligated to obtain itemized billing records from its cell phone [or landline] provider. " Id., p. 3; 09-ORD-073 (public agency discharged its duty in providing requester with all existing documents in the custody or control of the agency that were potentially responsive to request for "detailed cell phone records and landline records" for specified telephone numbers during a certain period of time as it did not maintain itemized or "detailed" telephone billing records in the normal course of business and was not required to acquire such records). The City's disposition of Mr. Trageser's request is affirmed.
A party aggrieved by this decision may appeal it 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