May 10, 1995

In re: Shirley Phillips/City of Bardwell


This matter comes to the Attorney General on appeal from the City of Bardwell's response to Ms. Shirley Phillips's open records request to see certain cancelled checks and bank statements of the City of Bardwell.

From copies of documents supplied to this office by Shirley Phillips, as the requester, and Mayor Brenda Douglas, on behalf of the City of Bardwell, we are able to set forth the following factual scenario.

On January 30, 1995, Shirley Phillips filled out and signed a "Public Records Inspection Application" form required by the City of Bardwell. She requested to inspect a "copy of tape of June 23, 1995 meeting--also Copy of Check & Bank Stmts. beginning Jan. 1, 1994 - Jan. 31, 1995." In the application, she agreed to pay $.10 per page of the requested records.

By letter dated January 30, 1995, Brenda Douglas, Mayor, responded on behalf of the City of Bardwell. In pertinent part, Mayor Douglas stated:

Due to your unusual request and the difficulty for producing the copies of all bank statements and checks beginning January 1, 1994, when I took office, and now, you may go to City Hall and inspect the checks on Friday, February 10, 1995, at 4:00 P.M. The checks from January 1, 1994 through June 30, 1994, have been stored in the fire house in boxes as the State Auditor's Office has finished the audit for that period. The remainder of the checks are in use at this time and will not be available until Nancy has entered them on the new computer. As soon as she has completed this monumental task you will be notified.

. . . .

Again, your appointment is for Friday, February 10, 1995, at 4:00 p.m. to inspect the records or at least a part of them. An appointment will be made for any more inspection time if you feel you need longer to look at the records. If you require written copies they will be made as soon as Nancy has time and you will be notified when they are ready as you have been in the past.

By facsimile letter dated February 8, 1995, Ms. Phillips thanked Mayor Douglas for her prompt response to her request; notified the Mayor that, because of a conflict of scheduling, she would be unable to inspect the records on February 10, 1995; and provided alternate dates when she could review the records.

By facsimile letter dated February 22, 1995, Ms. Phillips again requested to see the cancelled checks and bank statements from January, 1994, until the present date. Ms. Phillips provided additional dates she would be available to review the records.

In her letter of appeal dated March 7, 1995, Ms. Phillips states, "Mayor Douglas responded to my first request that I could see the first part of the year on a day she knew I would be out of town. I have asked 2 additional times and given 11 different days that I would be available. Mayor Douglas has not responded to either of the last 2 requests nor has she offered to make available the questioned records for the months of June 30, 1994 - Dec. 31, 1994 at all." Ms. Phillips asks this office to determine whether the actions of City of Bardwell have violated the Open Records Act as it pertains to her requests to inspect the City's cancelled checks and bank statements.

We note that since receipt of Ms. Phillips's March 7, 1995 letter of appeal, this office has received many letters and facsimile letters from Ms. Phillips regarding other documents she has requested to inspect and indicating an apparent ongoing disagreement with the City of Bardwell and the Mayor. In like fashion, we have received correspondence and responses from the City of Bardwell relating to these matters. Because of the evolving and continuing nature of the negotiations between the parties over a myriad of issues relating to different records, we will confine this open records review to the documents raised in the original letter of appeal, i.e, cancelled checks and bank statements of the City of Bardwell.

It is the decision of this office, for the reasons which follow, that the City of Bardwell has acted consistently, in part, with the Open Records Act and inconsistently, in part, with the Act.

To begin, upon receipt of Ms. Phillips's January 30, 1995 request to review copies of checks and bank statements of the City from January 1, 1994 - January 31, 1995, Mayor Douglas promptly responded that Ms. Phillips could inspect checks from January 1, 1994, through June 30, 1994. She further explained that the remainder of the checks were in use and could not be available until the City had entered them on the new computer. These checks would be made available to Ms. Phillips after this task had been completed. Mayor Phillips then stated that the available records could be inspected on Friday, February 10, 1995, at 4:00 p.m., and an additional appointment could be made if more inspection time was needed.

In her letter of appeal, Ms. Phillips indicated that she was unable to make the initial appointment and requested in writing, on two separate occasions, to reschedule her appointment to inspect the documents and the City did not respond to these requests.

The City acted consistently with the Open Records Act in timely responding to Ms. Phillips's request and setting a time for inspection of the documents. However, the City acted inconsistently with the Open Records Act in not responding to Ms. Phillips's request to reschedule her appointment. The City should promptly respond to her request and reschedule a time, agreeable with Ms. Phillips, in which she can inspect the records.

Moreover, the City acted consistently with KRS 61.872(5) in explaining that a portion of the requested documents were in use and would be available for inspection once they were entered on the new computer. However, it acted inconsistently with the Act in failing to provide a statement of the earliest date, time, and place on which they would be available for inspection. 93-ORD-43. The City should promptly notify Ms. Phillips as to when these remaining documents will be available for inspection.

In OAG 92-117, this office, in addressing what is a "reasonable time" for inspection, stated:

We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of retrieving those documents. Public agencies must work, in a spirit of cooperation, with the individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.

KRS 61.872(3)(a) provides that a person may inspect public records during the regular hours of the public agency. In this regard, the City should work with Ms. Phillips to find a time during regular office hours in which she can inspect the records.

Ms. Phillips 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

Ms. Shirley Phillips

Box 323

Bardwell, KY 42023