Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the City of Burgin violated the Open Records Act in the disposition of two requests from David Caldwell dated May 17 and 31, 2016. For the reasons that follow, we find that the city inadequately responded in part to one of Mr. Caldwell's requests and improperly denied access to some of the requested records.
First request
The items in controversy from Mr. Caldwell's first request are as follows:
3) Any documents received from Mercer County Sheriffs [ sic ] Department regarding Question 1 ["allegations that on or prior to 4/19/16 a bullet struck a residence at 417 N First St"]
4) The minutes and audio recording of the Burgin Council meeting held 5/10/16
5) All paid or unpaid bills lists submitted to the Burgin city council from the month of November 2011 to the current date.
7) Identify the city employee who contacted Leon Mayo regarding the matter in question 1, and their purpose in doing so.
13) Provide a copy of any documents between the City of Burgin and the Mercer County Ethics Board from January 2014 to May 15th 2015 including correspondence from the Mayor.
The city's response consisted of handwritten notes on a copy of Mr. Caldwell's request.
In response to item 3, the notes state "Talk to Ted Dean" and "waiting for County Attorney to close investigation." This is an inadequate response. KRS 61.880(1) requires a public agency to make a determination within three business days whether to release the records, and, in the event of any denial, to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the records withheld." The city's failure to do so was a violation of the Open Records Act. See generally
Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996).
To item 4, the city responded, "We have no way to copy digital recorder, you can listen to it or bring a recorder and copy it." KRS 61.872(3) provides in part that public records may be inspected:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) A person requesting records from within the same county "may be required to inspect the records prior to receiving copies." 03-ORD-067. Since Mr. Caldwell is located in Burgin, the city did not violate the Open Records Act by requiring him to listen to the recording on site. The city's reported inability to copy the recording will be addressed in the context of its response to Mr. Caldwell's second appeal.
With regard to item 5, the city provided what Mr. Caldwell identifies as "profit and loss statements for the requested time period" in addition to actual bills for the last seven months. Mr. Caldwell argues that he was not given the records he requested. This claim will be more fully addressed in the context of the city's response to Mr. Caldwell's second appeal.
Although the City answered the question in item 7, and Mr. Caldwell was dissatisfied with the answer, the City was not required to provide the information. Requests for information are outside the scope of open records law and an agency is not legally obligated to honor a request for information. 02-ORD-88. The Open Records Act addresses requests for records, not requests for information. 03-ORD-028. Therefore, this response was not a violation of the Act.
In response to item 13, the city stated: "This is an ongoing investigation now in the hands of City Attorney Tom Hensley, contact him." As in the case of item 3, the City failed to cite an exception to the Open Records Act, and therefore violated KRS 61.880(1). Furthermore, merely placing public records in the hands of a third party does not put them outside the reach of the Open Records Act. 04-ORD-123. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record." Id. (quoting unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). A third party authorized to possess a city's records "holds [them] at the instance of and as custodian on the city's behalf, and ? the city's position that it has no control over these records is without merit." 04-ORD-123. If records are in active use, in storage, or otherwise unavailable, a public agency may take more than the standard three business days to produce them, if necessary, provided "a detailed explanation of the cause is given for further delay." KRS 61.872(5). But the agency may not simply refuse inspection on that basis. Therefore, we find a violation of the Act in regard to item 13.
Second request
Mr. Caldwell's first appeal was received in this office on May 31, 2016. On that same date, Mr. Caldwell made a second open records request to the City of Burgin, which subsequently resulted in a second appeal. The items still in controversy from that request are as follows:
1) Regarding my previous request on 5/17/2016 question 7. I requested that the city employee who contacted Leon Mayo be identified and their purpose in doing so. You responded that Mary Jo Lawson did so but failed to respond as to her purpose in doing so. Please respond as to her purpose in calling.
2) As requested before all paid bills lists/Vendor transaction records from November 2011 to October 2015
7) A list of any extra duties preformed [ sic ] by Mary Jo Lawson and her rate of pay for these duties
8) A copy of the recording of the [M]ay council meeting. I am on a limited income and cannot as suggested purchase a recorder and record it from yours. The law requires you preserve it and make it available in a usable format. My understanding is it is preserved on a digital recorder. I believe you should be able to download it and burn a disk from the digital file. ?
9) All correspondence between the city of [B]urgin and the Mercer [C]ounty Ethics Board. My understanding is you [ i.e. , the city clerk] are the custodian of records for the city of [B]urgin not the city attorney.
The city's unsigned response was dated June 7, 2016. In response to item 1, the city attached a follow-up letter from Mary Jo Lawson; however, as explained above, item 1 is a request for information that need not be fulfilled under the Open Records Act.
In response to item 2, the city stated: "The profit and loss statements were what we used to approve the payment of all bill [ sic ] by the City Council. We have given you what the council was given up to present." 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. If the documents produced are the only "paid or unpaid bills lists submitted to the Burgin city council" for the time in question, upon which the council relied to approve payment of bills, then the city did not violate the Act by so responding.
For item 7, the city advised: "Mary Jo Lawson's duties are Assistant City Clerk, Water Department Clerk and Police Records Clerk. The previous request # 6 states all the pay raises given to Mary Jo Lawson." Mr. Caldwell, however, argues on appeal: "I have been advised Mary Jo Lawson is paid a weekly rate to clean city hall. They have failed to include this in the response." We note that Mr. Caldwell's request was for a "list of ? extra duties" and "her rate of pay. " From the fact that the city merely stated the duties instead of providing a copy of a list, we infer that no such document existed. The Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45. Thus, agencies "are not obligated to compile a list or create a record to satisfy an open records request." OAG 76-375. Apart from the mention of a list, item 7 constitutes a mere request for information. If a factual disagreement indeed exists as to whether Mary Jo Lawson cleans the building and is paid for doing so, we cannot resolve such factual discrepancy within the limited scope of this appeal.
In response to item 8, the ongoing discussion of the digital audio recording, the city stated: "At this time we do not know how to download the recording. We are trying to get someone to show us how to do this. You are more than welcome to come in and listen to the recording. We do have a private place for you to do this. As we stated, if you know someone who can download the recording we will be more than happy to let them do so. But the recording will not be allowed to leave the City Hall building." Finally, on July 20, 2016, the city clerk notified this office that the recording had been duplicated and provided to Mr. Caldwell at no charge. This portion of the appeal has thus been rendered moot.
As for item 9, the city reiterated: "All records of any correspondence concerning this request is in the hand [ sic ] of the city attorney Tom Hensley. We do not have anything here at City Hall." We reiterate that a city cannot avoid complying with the Open Records Act by placing its records in the hands of an attorney or other third party. We therefore find that this response violated the Act.
In conclusion, we find that the City of Burgin violated the Open Records Act with regard to items 3 and 13 of Mr. Caldwell's first request, as well as item 9 of his second request. Otherwise, we find no violations of the Act.
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.