Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Falmouth ("the City") violated the Open Records Act in failing to maintain the records of the Falmouth Festival Committee. We find that the City violated the Open Records Act in failing to maintain the records of the Falmouth Festival Committee as an ad hoc committee of a public agency.
April DeFalco submitted an Open Records Request to Sherry Welcher, Elonda Hinson, Chrissy O'Hara (the Falmouth City Clerk), and Susan Bishop on May 11, 2016. DeFalco stated:
. I am requesting a copy of the Falmouth Festival Committee's budget and expenses for the July 2016 parade and event. I understand that this will take longer to get since the planning is just getting started. I am willing to wait till July 12th, 2016 to receive the expenses and till June 14, 2016 for the budget report.
. I am also requesting minutes, expenses, payouts, money collected and where the funds came from, for the Falmouth Festival Committee for all events held in 2015 and November & December 2014.
. I am also requesting copies of checks made out to the Falmouth Festival Committee, Sherry Welcher and Elonda Hinson for all of 2015, 2016 and November and December 2014.
. I am requesting copies of purchase orders for the Falmouth Festival Committee for all of 2015, 2016 and November and December 2014.
. I am requesting copies of the credit card charges and purchase orders for the City of Falmouth pertaining to the Falmouth Festival Committee, and all events the City of Falmouth has participated in for 2015 and 2016 (PC community event, Senior Bash, Employee Christmas Dinner, ect. [sic])
The City responded to the request on May 16, 2016. Regarding the request for the Falmouth Festival Committee's ("Festival Committee") budget and expenses for the 2016 parade, the City stated:
Please note all expenses for donations prior to Attorney Mr. Duncan was not tracked any further than the money being approved by Council by budget and donated to the designated agency. . . . However since Mr. Duncan this format has been altered.
. . . The city does not have a budget for the Falmouth Festival Committee. . . . The city allocates $ 1000 for the July 4th Parade within the Community Activities budget line. Documents that will go with this allocation will not be available until after the parade has taken place. . . . There should not be a problem to have those documents to attach to the Purchase Order by that time.
Regarding the request the minutes, expenses, and payouts from Festival Committee events, the City stated that it "should be able to provide all minutes by the end of the week." The city provided documents relating to expenses for events on July 4th, 2015, Halloween 2015, Christmas 2015, and a Christmas parade/ swearing-in ceremony in December of 2014, and payouts for the Christmas parade in 2015. Regarding the request for checks made out to Sherry Wilcher and Elonda Hinson, the City provided documents for "only Sherry Wilcher for 2015 and 2016." Regarding the request for copies of purchase orders for the Festival Committee, the City provided purchase orders for the 2015 Christmas Parade. Regarding the request for credit charges and purchase orders for the City pertaining to the Festival Committee, the City provided purchase orders and receipts for the 2015 Christmas Dinner, and stated it would have documents pertaining to the 2016 Senior Bash available by the end of the week.
DeFalco initiated this appeal on May 18, 2016, 1 stating that she received a response from the City Clerk, but still had heard nothing from the Falmouth Festival Committee, which is chaired by the Mayor of Falmouth, and on which Sherry Wilcher serves. DeFalco further stated that "Sherry gives the department report on Festivals each month if there is something going on and they also use the cities tax exempt ID #. Sherry is in the Mayor's office everyday answering phones and emails." 2 In a supplemental correspondence dated May 26, 2016, DeFalco added that "Sherry utilizes City Hall for festival meetings, storage and supplies and falls under our insurance also uses the City's tax exempt number."
The City responded to the appeal on May 27, 2016, stating that the City Clerk "has produced all responsive records in her care and custody. Additionally, she has collected, assembled, and produced to Ms. Falco further records . . . ." Regarding the Festival Committee, the City stated:
There is no official 'Festival Committee' of the City of Falmouth. There has long been a loosely organized group of civic minded citizens who have been willing to do fundraising and planning and implementation for events that benefit the citizens of Falmouth and the surrounding community. The volunteers who serve as 'members' of the Committee change and rotate from time to time -- but one constant in recent years is Ms. Sherry Wilcher, a retired caterer and chef. . . .
Ms. Wilcher periodically gives reports of the Committee's activities at City Council Meetings. Because of her history in these civic activities, Ms. Wilcher is referred to as the 'Chair' of the 'Festival Committee.' I have not been able to discover that the Committee was ever formally created . . . .
. . . The City of Falmouth as well as the Pendleton County Fiscal Court, various businesses and other citizens, provide financial support to underwrite the activities of the Festival Committee. . . . Until recently, the Festival Committee has not been required to provide receipts and invoices to document their activities . . . . However, . . . Ms. O'Hara has produced all records that she had in her care and custody. Further, . . . City Clerk O'Hara has been able to collect documents and materials from Ms. Wilcher and other volunteers, and produce them to Ms. DeFalco. The City is not able to produce records that it does not have. 3
DeFalco replied to the City's response on May 31, 2016, adding that the Festival Committee:
uses the cities [sic] insurance for festivals, uses the cities [sic] letter head and tax exempt number. They also use city recourses [sic] such as storing supplies and holding meetings there. Sherry the Co-chair gives a report at the monthly council meeting . . . . The festival committee is controlled by the mayor and has been for the past 9 years. The Falmouth Festival Committee uses tax payer's dollars . . . . Terry England, the previous City Clerk typed up a letter for the Falmouth Festival Committee to hand out when soliciting donations, letting donators [sic] know the Falmouth Festival Committee was representing the City of Falmouth.
KRS 61.870(1)(j) provides that "public agency" includes "any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a public agency. " This expressly includes ad hoc committees. Although the City has not formally created a subcommittee for the Festival Committee, the record before us generally indicates that the Festival Committee is created, established, and controlled by a public agency. The Festival Committee appears to be funded primarily by the City and the Pendleton County Fiscal Court. 4 The City does not dispute that the Mayor serves on the Festival Committee, and that a Festival Committee volunteer gives regular reports at city council meetings. DeFalco additionally alleges that the Festival Committee uses the resources, letterhead, and taxpayer ID # of the City, and the City does not dispute those claims either. Although the work of the Festival Committee appears to be done primarily by volunteers, it receives and expends City funds under the supervision of the City. Accordingly, based on the record before us, we find that the Festival Committee, as an ad hoc committee of a public agency, is itself a public agency under the Open Records Act.
KRS 61.8715 provides that "public agencies are required to manage and maintain their records according to the requirements of these statutes." While the City maintained some records of the Festival Committee, and recently started requiring receipts and invoices of the Festival Committee to be maintained upon the advice of current city attorney Michael A. Duncan, it does not appear to be disputed that the Festival Committee did not generally maintain its records as required by the Open Records Act. Accordingly, in failing to require the maintenance of the records of the Festival Committee, the City violated the Open Records Act.
The City states that it has provided all the records it has in its possession, and has sought out and provided additional records. "A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. Since the City did not maintain any additional records of the Festival Committee, it cannot produce them. However, as the Festival Committee is a public agency, the city must maintain the Festival Committee's records in accordance with the Open Records Act going forward.
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.
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