January 12, 1994

IN RE: Bryan Smeathers/City of Owensboro


This appeal originated in a request for records submitted by Mr. Bryan Smeathers, Executive Director of Taxpayers for Government Accountability, Inc., to the City of Owensboro on December 13, 1993. Mr. Smeathers requested the following documents:

1. Option to purchase the S.W. Anderson building purchased by Mayor Adkisson in July, 1993.

2. Copy of the personal check used to purchase the option for the city.

On the same day, Ms. Carol Blake, City Clerk, responded to Mr. Smeathers' request, advising him that the option to purchase was available for inspection at City Hall, and could be reviewed during regular business hours. She denied his request for the personal check used to purchase the option, advising him "there is not a copy of the personal check in the custody of the city, therefore, it cannot be provided by the city."

In his letter of appeal to this Office, Mr. Smeathers explains that "Owensboro Mayor David Adkisson purchased an option to purchase property in Owensboro known as the Anderson building using a personal check (not an official check on the treasury of the City of Owensboro)." He asks whether a personal check used to purchase an option in the name of the City of Owensboro is a public document. For the reasons set forth below, we conclude that although Ms. Blake's response was sufficient and proper under the Open Records Act, the requested document is a "public record" within the meaning of KRS 61.870(2). If Mr. Smeathers wishes to pursue this matter, he should redirect his request to Mayor Adkisson.

As Mr. Smeathers knows, a public agency cannot afford the requesting party access to records which it does not have or which do not exist. See, e.g., 93-ORD-143. Ms. Blake advised Mr. Smeathers that the City does not have a copy of the Mayor's personal check in its custody, and therefore cannot honor his request. This was a proper response to the extent that the City Clerk cannot provide access to records which are not in the City's custody. The inquiry does not, however, end here. Mr. Smeathers asks whether a personal check used to purchase an option in the name of the City of Owensboro is a public record. We believe this question must be answered in the affirmative.

The term "public record" is defined at KRS 61.870(2), and encompasses:

[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characters, which are prepared, owned, used, in the possession of or retained by a public agency[.]

(Emphasis added.) The term "public agency" is defined at KRS 61.870(1). It includes "[e]very state or local government officer[.]" KRS 61.870(1)(a). Mayor Adkisson clearly falls within the parameters of this definitional section, and records which are "prepared, owned, used, in the possession of or retained . . ." by him in his official capacity are "public records" within the meaning of KRS 61.870(2). While it is generally true that the personal checks of a state or local government officer acting in his personal capacity are not public records for purposes of the Open Records Act, Mayor Adkisson wrote this check in his official capacity, thereby committing the city to a specific course of action, i.e., the purchase of the Anderson building. Assuming the facts to have been fairly and accurately presented by Mr. Smeathers, we conclude that the check is a public record for purposes of the Open Records Act.

It has not escaped our notice that the issues raised in this appeal extend far beyond the scope of the Open Records Act. In our role as dispute mediator under KRS 61.880(2), we deem it inappropriate to comment on these issues. Our review is limited to two basic questions: Whether the public agency has the requested record in its custody, and if it does, whether the record is subject to public inspection. Although the City Clerk does not have custody of the check, and properly advised Mr. Smeathers that she could not honor his request, we believe that it is a public record as defined at KRS 61.870(2). Mr. Smeathers may wish to resubmit his request to the Mayor in order to obtain a copy of the check. If the check contains personal information protected from release by KRS 61.878(1)(a), the Mayor may mask the exempt portions and release the nonexempt portions pursuant to KRS 61.878(4).

Mr. Smeathers and the City of Owensboro may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action in circuit court pursuant to KRS 61.880(3), he should not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Ms. Carol Blake

City Clerk

City of Owensboro

P. O. Box 847

Owensboro, KY 42302

Mr. Bryan Smeathers

911 Allen Street

Owensboro, KY 42303

Hon. David Adkisson, Mayor

City of Owensboro

Owensboro, KY 42301