Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Bardstown ("City") violated the Open Records Act in denying a request for a copy of the back of a cancelled check, and a 1099 tax form. Because a bank had possession of the actual copy of the cancelled check, but holds such records as custodian on behalf of the City, we find that the City violated the Act in denying the request. Where the City did not have a particular 1099 tax form for a legal settlement, and never issued one, it complied with the Act, though belatedly, by so informing the requester.
Terena Franke ("Appellant") made a request to the City of Bardstown for a copy "of settlement check (front/ back) issued to Keith Sparks and/Kecia Copeland as approved by city council on 9-26-17 in the [amount] of $ 40k. Please include a copy of all 1099's issued to recipients." 1 The request was dated February 28, 2018. The City responded by letter dated March 1, 2018, stating that "there is one (1) record that may be shared with you under the Open Records Act. A copy of the back of the check is not within our records and our bank cannot produce a copy of the back of the check after 3 months." The letter advised Appellant that she could inspect the record at City Hall during normal working hours and could request copies at a cost of $ 0.10/page. The City's letter did not respond to the request for the 1099's.
On March 7, 2018, Appellant visited the City's office and was provided a copy of the front of the check. The City also provided a supplemental response letter to Appellant on March 7, reiterating that "a copy of the back of the check issued to Keith Sparks and Kecia Copeland is not within our records and our bank cannot produce a copy of the back of the check after 3 months." As to the request for 1099's, the City stated: "Also not within our records is a copy of any 1099s. The City of Bardstown does not have any record of issuing any 1099s connected to this matter as this was a settlement as a result of a lawsuit. If a 1099 were to be issued, it would not be anything the City would have issued but would have been more with McCoy and Sparks Law Firm's purview."
Appellant filed an appeal of the City's responses on March 25, 2018. She stated in her appeal that she spoke with an employee of the "bookkeeping department at Wilson & Muir Bank" 2 and was advised that the bank could make available a copy of the check if the check number, the amount of the check and the date the check cleared were provided, along with a $ 5.00 fee and $ 1.00 for the copy of the check. In responding to the request for an image of the back of the check, the City stated "[t]hat imag[e] is not 'prepared, owned, used, in the possession of or retained by a public agency' and is in fact owned and used by the bank." The City asserted that it "could request a copy of the back of the check and thus create a new public record subject to an open records request. However, it has long been held that a public agency is not obligated to create records to satisfy an open records request ? ."
Back of the Check . Based upon the following, this Office finds that because the cancelled check is currently maintained by a private agency (the bank) on behalf of the City, the City violated the Act in denying access on the basis that the record is not currently in the custody of the City. 05-ORD-065, p. 1.
Generally speaking, the financial and operational records of a public agency are open for inspection. 05-ORD-065, p. 9. See 04-ORD-113 (bank statements); 98-ORD-17 (records documenting deposits, interest rates, account fees, and a list of all certificates of deposit or repurchase agreements); 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" ); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 89-91 ("Evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets of the city" are among the categories of records properly characterized as "generally recognized public recordation subject to public scrutiny in a city clerk's office"); OAG 82-169, p. 3 (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 76-648 (holding that "wherever public funds go, public interest follows").
More specifically, in 05-ORD-065 this office rejected the argument the City makes here in holding that the Lexington-Fayette Urban County Government ("LFUCG") violated the Open Records Act by denying a request for specific cancelled checks, which it did "not receive" from the bank, and offering a "yellow carbon copy of the actual check that went out," because no responsive documents existed in the possession of the agency. Having recognized that a public agency cannot produce nonexistent records for inspection or copying, this office noted that LFUCG had not challenged "the status of the cancelled checks, relying instead upon the location of those public records in denying access to the originals," which it acknowledged were "substantially different from the 'yellow carbon copies' offered as a substitute." 05-ORD-065, pp. 9-10. The reasoning found at pp. 9-11 of that decision is directly on point, and 05-ORD-065 is incorporated by reference. "Regardless of where the cancelled checks are located, those records were 'prepared, owned, and used at the instance of' the [City]." Id., p. 11. As in 05-ORD-065, although the bank "is currently acting 'as custodian on the [City's] behalf,' it is the 'nature and purpose' of those records which determines their status as public records. " Id. In accordance with 05-ORD-065, this office finds that the City must provide Appellant with access to a copy 3 of the cancelled check (s) requested upon receipt of the copying fee. 4
Copy of 1099 . The City did not, in its first response to Appellant's request, mention the request for a 1099 tax record. In failing to state, within three days after receipt of the request, whether it would comply with the request, the City committed a procedural violation of KRS 61.800(1). 5 The City's response to the appeal addressed the request for the 1099 tax record by stating that "the City of Bardstown Finance Department determined that no form 1099 would be issued concerning the referenced payment. No such public records exists ? ."
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. From the City's response to the appeal, it does not appear that the requested record was ever created. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. Accordingly, we find no substantive violation of the Open Records Act by the City regarding the request for the 1099 tax record.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 A 1099 tax form is, in very general terms, a form that report the various types of income a person may receive throughout the year, other than the salary paid by an employer. The person or entity providing the income to the payee is responsible for filling out the appropriate 1099 tax form and sending it to the payee. See , https://turbotax.intuit.com/tax-tips/irs-tax-forms/what-is-an-irs-1099-….
2 The records provided to this Office show the front of the check in question, and the check is drawn on the account of the "City of Bardstown" at the Wilson & Muir Bank and Trust Co. We thus understand that the Wilson & Muir Bank and Trust Company has the checking account for the City.
3 If the City redacts any information from the check(s), it must cite the applicable exception and provide a brief explanation of how the specific exception applies to the information withheld per KRS 61.880(1).
4 Pursuant to KRS 61.874(3), the City may also require payment of the additional cost, if any, incurred in acquiring the copies from the bank, but may not assess any charges beyond that. 10-ORD-140
5 KRS 61.800(1), in pertinent part, states "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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."