NOT TO BE PUBLISHED
In re: Gerald T. Kemper/City of Monterey
This matter comes to the Attorney General as an appeal by Gerald
T. Kemper in connection with his attempts to secure copies of
documents from the city of Monterey.
In letters to the mayor of the city of Monterey, dated July 11,
1997, Mr. Kemper requested the following:
since the March 1997 flood or otherwise destroyed by the city
awaiting restoration from flood damage.
4. Minutes of the city counsel meeting of July 1, 1997.
5. Copies of specifically designated ordinances.
In a letter dated July 21, 1997, and received by this office
on July 23, 1997, Mr. Kemper stated that his letters to the city,
dated July 11, 1997, have not been answered. He requested that
the issues presented be addressed by this office.
The mayor of the city, in a document dated July 25, 1997, said
that the city clerk, on July 12, 1997, sent Mr. Kemper copies
of "all files available." She also said that "many
records were destroyed by the flood of '97."
This office has also been provided with a copy of a letter from
the city clerk to Mr. Kemper, dated July 25, 1997, in which the
city clerk addressed the various requests of Mr. Kemper.
In connection with the first request the clerk said the flood
buyout application is not a public record and a copy will not
be made available for inspection.
As to the requests for copies of summaries of city records lost
and saved as a result of the 1997 flood, the clerk said there
are no such records and thus copies cannot be made available.
The clerk said the minutes of the council meeting in question
had not yet been approved. They would be approved at the next
meeting of the council and would be made available after that.
In response to the request for the specific ordinances, the clerk
said he sent what he had and if any copies are missing it is because
those ordinances were destroyed by the flood or are in the process
of being restored.
We will now deal with the five categories of documents requested
by Mr. Kemper and the adequacy of the response of the city clerk
to those requests.
The clerk, in response to the request for a copy of the flood
buyout application submitted to FEMA, merely said it "is
not a public record and we cannot send it to you."
KRS 61.880(1) sets forth procedural guidelines for an agency
response to an open records request. The statute in part requires
that an agency response denying inspection of any record include
a statement of the specific exception authorizing the withholding
of the record and a brief explanation of how the exception applies
to the record withheld.
The city clerk neither stated the specific exception the city
was relying upon in withholding the record nor was there any explanation
of how that particular exception applied to the record withheld.
The city, therefore, violated the provisions of KRS 61.880(1)
relative to the request for access to the flood buyout application.
In addition, the city, in denying access to the flood buyout
application, failed to meet the statutory burden of proof imposed
upon it by KRS 61.880(2)(c). The city clerk, as noted previously,
invoked no exception to support denial of access to the application
and offered no written explanation for the decision to withhold
access to the application. The city clerk has not complied with
the statutory requirements in connection with the denial of a
request for access to documents under the Open Records Act. Merely
mentioning a flood buyout application suggests no reason why such
a document is not subject to public inspection and we are left
with no alternative but to conclude that the city's response was
substantively deficient and to order disclosure of the application
in question. See 96-ORD-26 and 95-ORD-61, copies of which are
The city clerk, in connection with the requests for copies of
summaries of city records lost and saved as a result of the 1997
flood, stated that there are no such summaries. This office has
consistently stated that the Open Records Act does not authorize
the Attorney General to order the creation of records. The Act
also does not require a public agency to create records which
do not exist just to satisfy a request made under the Open Records
Act. See 96-ORD-139, copy enclosed.
The city's response was proper in that an agency cannot make
available for inspection copies of documents which do not exist
and a public agency is not required to create a document in order
to satisfy a request submitted under the Open Records Act.
In connection with access to the minutes of a public agency,
KRS 61.835 states in part that the minutes shall be promptly recorded
and shall be open to public inspection no later than immediately
following the next meeting of the public body.
The city clerk acted in accordance with the law when he advised
the requesting party that a copy of the minutes of a specific
meeting would be available for public inspection following the
next meeting of the public body.
The clerk, in response to the request for copies of specific
ordinances, stated he furnished copies of those ordinances he
had. While the clerk correctly made available copies of those
ordinances which were available, a more proper response would
have been to state those ordinances which were being made available,
those ordinances which could not be furnished, and the reasons
why those ordinances could not be made available. While the reasons
for not furnishing particular ordinances were probably legitimate
(flood destruction and flood damage), what was furnished and what
not was furnished and why should have been precisely stated.
A party aggrieved by this decision may appeal it by initiation
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 he should
not be named as a party in that action or in any subsequent proceeding.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision have been distributed to:
Gerald T. Kemper
109 N. Thomas Street
Owenton, KY 40359
Mayor, City of Monteray
205 Taylor Street
Monteray, KY 40359
City Clerk, City of Monteray
c/o Larkspur Press
340 Sawdridge Creek West
Monteray, KY 40359