July 18, 1995

In re: Joe Ross/City of Bardwell


This matter comes to the Attorney General from the City of Bardwell's response to Mr. Joe Ross's request to see the cancelled checks and bank statements for the City's accounts for November and December, 1994, and a copy of the March 31, 1994 minutes of the Council Meeting as approved and officially signed.

Mr. Ross indicated in his letter of appeal that he made two requests to review these documents. His first request was made on March 2, 1994, to which he received no reply. His second request was made on March 17, 1995. By memorandum dated March 28, 1995, Mayor Brenda Douglas responded stating that "[d]ue to the cost of producing records and the volume of requests that have been received, this will be placed on the agenda for the City Council Meeting on Monday, April 3, 1995. The council members need to be informed of the requests and the cost involved."

Subsequent to receipt of Mr. Ross's letter of appeal, Mayor Douglas forwarded a copy of a memorandum, dated April 25, 1995, to Mr. Ross. The memorandum states:

I understand that Police Chief Billy Joe Arnold informed you that you could go to City Hall on Wednesday, April 26, 1995, at 9:00 a.m. to view certain documents of the City of Bardwell. As this date apparently was not convenient for you I am scheduling another appointment.

You may be able to view the records you have requested, official minutes of the March 31, 1995, Bardwell City Council meeting and copies of cancelled checks and bank statements for the months of November and December, 1994, on Wednesday, May 3, 1995, at 9:00 a.m. at Bardwell City Hall. If this date is not convenient for you please call City Hall and schedule an appointment with City Clerk Nancy Henley.

By telephone, the undersigned contacted the City of Bardwell, Nancy Henley, City Clerk, to determine the status of Mr. Ross's request. Ms. Henley stated that the records had been made available for Mr. Ross and that he had reviewed the minutes requested but chose not to review the checks. She stated that the City had a folder with Mr. Ross's name on it and the records remained available for his review. She further stated that, in addition to Mayor Douglas's April 25, 1995 memorandum, Mr. Ross had been informed of this fact orally by Police Chief Billy Ray Arnold.

For the reasons which follow, it is the conclusion of this office that the City's response was procedurally deficient in not responding to the first request and in not responding to the second request within three days of its receipt as required by KRS 61.880(1). A response that the request will be placed on the agenda for the City Council meeting is not sufficient to meet this requirement.

As to the substantive issue on which this appeal is based, we believe that issue has been rendered moot. As noted above, the records which Mr. Ross requested have been made available for his inspection. This office has recognized that the Attorney General is not obligated to issue a decision in an appeal when an agency releases or makes available for inspection a record or records subsequent to the filing of an appeal. OAG 91-140.

40 KAR 1:030, Section 6, regarding the administrative procedures to be followed by parties in an open records appeal to the Attorney General, provides:

Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.

Ms. Jones or the City of Bardwell may challenge 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 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.






Distributed to:

Ms. Brenda Douglas, Mayor

City of Bardwell

Box 280

Bardwell, KY 42023

Mr. Joe Ross

Bardwell, KY 42023