Request By:
Robert Stonum
Betty Coleman
Stephen Schwager
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Worthington Hills violated the Open Records Act by not producing all tax records requested in an Open Records request. We find that the City violated KRS 61.880(1) by failing to notify the requester of whether it would comply with a request for IRS W-3 1 forms and attachments, but, in regards to IRS Forms 1096, 2 complied with the Open Records Act when it responded to his request by providing those forms for 2016 and notifying him that those forms for 2014 and 2015 had never been processed or filed.
On February 8, 2017, Robert Stonum, a commissioner of the City of Worthington Hills (the "City"), emailed Roy Coleman at his official email address as treasurer for the City, and requested that he be allowed to inspect "the City's 1096 filings to the IRS" for the years 2014, 2015, and 2016. On February 9, 2017, Mr. Stonum emailed Mr. Coleman again, this time requesting to inspect "the City's W-3 filings to the IRS" for the tax years 2014, 2015, and 2016. He asked Mr. Coleman to bring the records with him to the City Meeting scheduled for February 21, 2017. 3 By letter dated February 21, 2017, to Ms. Betty Coleman, City Clerk, Mr. Stonum requested copies of IRS Forms 1096 with attached Forms 1099-Misc, and IRS Form W-3 with attached Form W-2 forms, for 2014, 2015 and 2016. Mr. Stonum's appeal states that he hand-delivered his request to Ms. Coleman at the City Meeting on February 21, 2017. Mr. Coleman, the city treasurer, emailed Mr. Stonum on February 23, 2017, stating, "Attached are copies of IRS Forms 1096 and 1099s for companies/individuals in 2016 requested by Commissioner Stonum. Forms 1096 and 1099 were not processed or sent to companies/individuals or filed with the IRS for 2014 and 2015." Mr. Stonum responded by email on February 24, 2017, asking "when he could expect the W-3s and attachments for 2014-2016." On appeal, Stephen Schwager, attorney for the City, stated that "1099's were not issued for any tax year before 2017, which were filed late. The City Treasurer was not aware that they had to be issued."
From the record on appeal, we understand that the City has provided the IRS Tax Forms 1096 and 1099, and attachments, for tax year 2016, but no such forms were created for tax years 2014 or 2015. The Attorney General has consistently recognized, 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. 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). As the City has provided the IRS Forms 1096 that it does possess and explained that it does not have those forms for earlier years, it has fulfilled its duties under the Open Records Act. 4 Should the City, now or in the future, create IRS Forms 1096 for 2014 and 2015, and Mr. Stonum's current requests having been answered, he may send a new request for those records. 5
In regards to Mr. Stonum's request for IRS Forms W-3, and attachments, the City provided no response to Mr. Stonum or to this office. By letter faxed to this office on March 27, 2017, Mr. Stonum states that he has not received those records. The City's failure to respond to the request for these records is tantamount to a denial of that request without specific support in the form of "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." KRS 61.880(1). 02-ORD-116. Having failed to meet its statutorily assigned burden in regards to this part of Mr. Stonum's request, we find that the City committed a substantive, as well as a procedural, violation of KRS 61.880(1). Accordingly, the City should immediately respond in writing to Mr. Stonum's request for IRS Forms W-3, and attachments, or otherwise immediately make the records available to him. 6
Either party may appeal this decision 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 must 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 IRS Tax Form W-3 (Transmittal of Wage and Tax Statements), is a transmittal which is forwarded to the Social Security Administration, showing total earnings, Medicare wages, Social Security wages, and withholding for all employees encompassing the entire year. See , https://www.irs.com/articles/what-is-tax-form-w3.
2 A tax-exempt organization must file Form 1096, Annual Summary and Transmittal of U.S. Information Returns, to transmit Copy A of Forms 1099, 1098, 5498, and W-2G to the IRS. https://www.irs.gov/charities-non-profits/form-1096.
3 The City of Worthington Hills, according to Mr. Stonum, has no City Hall where he can inspect the City's records.
4 We note that Mr. Stonum did not appeal the lack of response to his email requests for inspection. As a public agency may require open records requests to be mailed, hand-delivered or faxed, pursuant to KRS 61.872(2), we find no violation of the Open Records Act based on the City's implicit denial of those emailed requests.
5 No right of inspection attaches to "records that have not yet come into existence" as of the request date. 99-ORD-155, p. 3; 15-ORD-130.
6 If no records exist which are responsive to Mr. Stonum's request, the City must affirmatively so advise him in writing. On this issue, the Attorney General has consistently held:
[A]n agency's inability to produce records due to their 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 [citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not so state is deficient. [Citations omitted.]
02-ORD-144, p. 3; 03-ORD-207. Accordingly, the City must ascertain whether records exist which are responsive to Mr. Stonum's request and promptly advise him of its findings.