Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : City of Martin violated the Open Records Act in failing to either comply with all requirements of KRS 61.880(1) upon receipt of request, or properly invoke KRS 61.872(5) by citing that provision and providing a legitimate detailed explanation of the cause for delay and the specific date when the records would be available. The City also subverted the intent of the Act, short of denial and within the meaning of KRS 61.880(4), in failing to provide timely access to all existing documents responsive to request.
Open Records Decision
The question presented in this appeal is whether the City of Martin violated the Open Records Act, or subverted the intent of the Open Records short of denial and within the meaning of KRS 61.880(4), in the disposition of Floyd County Chronicle & Times Reporter Mary Meadows' August 9, 2019, request for a copy of "all bill lists/check registers for the City of Martin, Martin City Water, Martin City Sewer, and Martin City Tourism for the months" of March-July 2019 in addition to all bank statements for the specified public agencies from the same period. She asked the City to include "all information" contained in the check registers, i.e. , dates, check numbers, payees, amounts, memos, payments, deposits, and balances. 1On August 10, 2019, City Attorney James D. Adams, II responded via e-mail, but merely stated, "As you know, I don't have city records at my disposal. Therefore, I forwarded your email request to the Mayor and Ethel, even though your request was also sent to her."
Having received no further correspondence from the City, Ms. Meadows called Sharon Caudill, Deputy Clerk, on August 16, 2019, to inquire regarding the status of the request; Deputy Clerk Caudill asked her to fax the request, which Ms. Meadows promptly did. However, she did not receive any further written response on behalf of the City. On August 27, 2019, she approached City Clerk Ethel Clouse and Mr. Adams before a City Council meeting to inquire again regarding the status of her August 9 request. Deputy Clerk Caudill stated that she had a response prepared, but further indicated that Ms. Meadows needed to acquire Mayor Sam Howell's "permission" before she could receive it. Ms. Meadows then asked the Mayor, who advised that he would review the City's response on the following day, August 28, 2019. Despite assuring Ms. Meadows that he would not forget in response to a text from her that day, she did not receive any further correspondence from the City Clerk or the Mayor. Accordingly, she initiated this appeal challenging the inaction of the City in a letter dated September 4, 2019, including a copy of the facsimile transmission cover sheet and verification report as well as her text exchange with Mayor Howell.
This office issued a Notification to Agency of Receipt of Open Records Appeal to both Mayor Howell and Mr. Adams on September 5, 2019, advising that pursuant to 40 KAR 1:030 Section 2, "the agency may respond to this appeal," but any response "must be received no later than Wednesday, September 11, 2019." By e-mail directed to City Clerk Clouse (Records Custodian) 2and Mr. Adams on September 12, 2019, the undersigned Assistant Attorney General reiterated to the City that a response must be received on or before September 18, 2019. As of this date, the Attorney General has not received any written response from the Mayor, the City Clerk, or the City Attorney, nor has anyone contacted this office to request additional time in which to submit a response. Neither of the Notifications was returned as being undeliverable. This continued inaction by the City constitutes a clear violation of KRS 61.880(1).
As a public agency, the City must comply with procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act. Pursuant to KRS 61.880(1):
(Emphasis added). The language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See 04-ORD-208; 12-ORD-085; 19-ORD-045. Failing to respond, as the City did here, violates the mandatory language of the Act. See 19-ORD-001.
The City had multiple opportunities to fully discharge its duty under KRS 61.880(1) -- first, upon receipt of Ms. Meadows' e-mailed request (forwarded to Mayor Howell and City Clerk Clouse by the City Attorney); second, upon receipt of her faxed request by the City Clerk; third, following her verbal inquiry to Mayor Howell on August 27; fourth, upon receipt of her text to Mayor Howell; and finally, upon receiving the Notification of her appeal from this office and our subsequent inquiry. A public agency such as the City is not permitted to elect a course of inaction. See 17-ORD-129; 19-ORD-001; 19-ORD-045. The Attorney General has consistently recognized that procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3 (citing 93-ORD-125, p. 5); 05-ORD-190; 09-ORD-186; 12-ORD-085. Inasmuch as the City has yet to issue a substantive written response to Ms. Meadows' August 9 request, it has necessarily failed to advance a legal argument in support of its apparent denial of that request. See 19-ORD-001; 19-ORD-045.
Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." See Edmondson , 926 S.W.2d at 858. The City must provide Ms. Meadows with a copy of any existing record(s) in the custody of the agency which is responsive to her August 9 request unless the City satisfies its burden of proof by articulating, in writing, a basis for denying access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (p). Pursuant to KRS 61.872(3)(b), the "official custodian shall mail the copies upon receipt of all fees and the cost of mailing." 3If the City "does not have custody or control" of any records identified in Ms. Meadows' request, which is unlikely, the City "shall notify [Ms. Meadows] and shall furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4). Compliance with provisions of the Open Records Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2 (citing 93-ORD-125, p. 5); 11-ORD-042; 15-ORD-152; 19-ORD-001. Because the City did not perform these functions, it violated the Open Records Act. See 09-ORD-186; 10-ORD-093; 19-ORD-001.
In addition, the City subverted the intent of the Act within the meaning of KRS 61.880(4) in failing to either provide Ms. Meadows with timely access to all existing records which might be responsive, in accordance with KRS 61.880(1), or provide a detailed explanation of the cause for delay and the specific date when the records would be available in writing per KRS 61.872(5) if appropriate. See 15-ORD-055; 19-ORD-045. This office thoroughly analyzed KRS 61.880(1) and KRS 61.872(5) in 19-ORD-045, a recent decision resolving Log Number 201900051 (In re: Floyd County Chronicle & Times (Mary Meadows)/City of Martin), a copy of which both parties received. Accordingly, this office will not recapitulate the well-established law regarding application of these provisions in this decision; the analysis contained at pages 4-9 is equally applicable on the facts presented. Here, as in 19-ORD-045, this office finds that "[i]n the absence of a legitimate detailed explanation of the cause for delaying access" for more than a month, . . . Ms. Meadows "has not received 'timely access' to any existing responsive documents . . . and this delay subverted the intent of the Act under KRS 61.880(4)." 19-ORD-045, p. 8; 13-ORD-052, pp. 6-7; 16-ORD-188.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 Generally speaking, the financial and operational records of a public agency such as the City are open for public inspection. 05-ORD-065, p. 9; 16-ORD-018. See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (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 89-91; OAG 90-30; OAG 91-7; 10-ORD-140; 18-ORD-084.
2 Pursuant to KRS 83A.085(3)(b), the City Clerk is charged with "[p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." KRS 61.870(5) defines "Official Custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." On the other hand, KRS 61.870(6) provides that "'Custodian' means the official custodian or any authorized person having personal custody and control of public records[.]" See 09-ORD-018; 19-ORD-045 ( Floyd County Chronicle & Times /City of Martin, Mar. 19, 2019), p. 2 n. 1.
3 If the City does not possess any responsive documents, it must promptly indicate as much to Ms. Meadows 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; 19-ORD-001. Accordingly, the City must ascertain whether any existing documents are responsive to Ms. Meadows' request, promptly advise her in writing of its findings, and briefly explain the nonexistence of such records, if appropriate.