NOT PUBLISHED 

93-ORD-134

November 12, 1993

IN RE: Royden K. Cullinan/City of Louisville

OPEN RECORDS DECISION

This appeal originated in a series of requests for records submitted by Mr. Royden K. Cullinan to the City of Louisville under the Kentucky Open Records Act. On February 25, 1993, Mr. Cullinan requested access to various records from the City's Department of Budget and Finance. Those records were identified as:

On behalf of the City of Louisville, Mr. Thomas Lukins, Assistant Director of Law, responded to Mr. Cullinan's request on March 1, advising him that the City had "begun the process of identifying and compiling the [requested] records," and indicating that he would be notified "as soon as they become available."

On March 12, Mr. Cullinan amended his request, asking that in addition to his original request he be provided with:

Mr. Cullinan also asked that he be advised when he could expect to receive the requested records. He encouraged Mr. Lukins to provide him with the records "as retrieved, rather than waiting until the request is fulfilled in total."

Mr. Lukins responded on March 18, directing Mr. Cullinan to contact Harry Taylor, Department of Budget and Finance, to obtain a copy of the FY 91-92 City Executive Budget. He stated that the City had begun to compile and review the documents identified in his February 25 request, and would also attempt to locate the documents identified in his March 12 request.

Apparently unsatisfied with this response, Mr. Cullinan upbraided Mr. Lukins in a letter dated March 29, the full text of which follows:

In his April 1 response, Mr. Lukins advised Mr. Cullinan that he could not "specify a completion date for the remainder of [his] request." He explained that Mr. Cullinan's request encompassed "six years of documents relating to six different city-related organizations, plus a broad range of documents relating to Crescent Center." Mr. Lukins indicated that he and other City employees would continue to compile and review documents, and notify Mr. Cullinan as they became available. In the same letter, he informed Mr. Cullinan that the prospectus/offering memoranda he had previously requested were now available for review.

On April 13, Mr. Lukins again wrote Mr. Cullinan to advise him that the boards minutes for the Parking Authority of River City and the City of Louisville Public Properties Corporation were available for inspection. He indicated that

the City was continuing in its efforts to locate the remaining documents identified in Mr. Cullinan's February 25 and March 12 requests.

In a followup letter dated April 21, Mr. Cullinan notified Mr. Steve Salter, of the Parking Authority of River City, that some of the requested board minutes had apparently been "inadvertently omitted." These minutes were identified as:

On the same date he notified Mr. Lukins that some of the records pertaining to the City of Louisville Public Properties Corporation had also been "inadvertently omitted." He noted that in his February 25 request, he asked "[f]or each of the last six years, Annual Reports and Board Minutes for the Louisville Public Properties Corporation." (Emphasis in original.) He received the following records:

It was therefore Mr. Cullinan's position that "the records provided were but a miniscule fraction of those requested."

Having received no response to this letter, on May 4 Mr. Cullinan again admonished Mr. Lukins:

On May 7, Mr. Lukins responded that no records had been "inadvertently omitted." Mr. Cullinan was provided with all board minutes that the City has in its possession for the specified time period. He rejected Mr. Cullinan's assertion that the City violated the Open Records Act by failing to respond within three days to his April 21 letter inasmuch as the letter was not an open records request but an inquiry as to records previously requested. Additionally, Mr. Lukins explained that the City has no Board minutes for the Louisville Revenue Finance Corporation, the Broadway Project Corporation, the Broadway Area Revitalization Corporation, or CAI Louisville Renaissance Company. He made available the "Annual Verification Reports" for the Public Properties Corporation and the Revenue Finance Corporation, as well as the Prospectus/Offer Memorandum for Crescent Centre.

On May 21, Mr. Cullinan voiced his continuing objection to the manner in which the City had handled his requests. He noted the omission of the minutes of various board meetings, observing:

* * *

Mr. Cullinan also identified several other records which had not yet been disclosed, concluding:

An even more strongly worded letter to Mr. Lukins followed on June 22.

Mr. Lukins responded on June 25. He advised Mr. Cullinan that the minutes of the January 23, 1991, meeting of the Public Properties Corporation had been located and were available for review, but that the City had found no other minutes. He afforded Mr. Cullinan access to the partnership formation documents for CAI Louisville Renaissance Company and monthly bank statements for the Public Properties Corporation, but indicated that the City had been unable to locate such statements for the other corporations identified in his request. In closing, he observed:

Mr. Cullinan's appeal to the Attorney General followed.

In his letter of appeal, Mr. Cullinan argues that "the Abramson administration is 'playing games' with the Open Records Act . . . by withholding public records or, . . . fail[ing] to adequately maintain or . . . destroy[ing] public records." He documents the City's repeated failures to provide requested records and to respond to his inquiries relative to those records. In addition, he objects to the excessive delays occasioned by the City's apparent policy of processing all open records requests to city agencies through the City's Law Department. It is his position that:

He asks that the Attorney General "investigate whether records are being withheld or are not being adequately maintained."

In response to these allegations, Mr. Lukins denies that the City violated the Open Records Act. Citing 93-ORD-75, OAG 91-138 and OAG 88-111, he maintains that although the City does not wish to interfere with Mr. Cullinan's statutory right to inspect records, "we cannot provide access to documents that we do not have." Elaborating on this position, he asserts:

He defends the City's policy relative to the processing of Open Records appeals, arguing that the "Law Department involvement is not used to delay City response to Open Records requests; rather, its purpose is simply to provide legal advice regarding

statutory obligations." Additionally, he notes that Mr. Cullinan's request that the Attorney General investigate the City's failure to release or maintain records is inappropriate in view of the fact that "an investigation" is beyond the scope of the Attorney General's authority under the Open Records Act. Mr. Lukins notes, in closing, that in spite of the number and breadth of requests filed by Mr. Cullinan, "The City is continuing to make a good faith effort to accommodate [his] requests."

The issues presented in this open records appeal are of a procedural, rather than a substantive, character. This is not to trivialize or otherwise detract from their importance. As we noted in 93-ORD-125, at page 5, the 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." For the reasons set forth below, we conclude that the City's handling of Mr. Cullinan's requests constitutes a partial violation of the Open Records Act.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a

request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

It is the opinion of this Office that the City of Louisville failed to provide timely access to the records identified in Mr. Cullinan's requests. KRS 61.872(5) provides:

Mr. Cullinan's initial open records request was submitted on February 25, 1993. His amended request was submitted on March 12, 1993. Those documents which the City was able to locate

and which satisfied portions of his requests were released over a period of time extending from March 18, 1993, through June 25, 1993. Hence, some one hundred and twenty days elapsed between the date of his initial request and the date of the last reported communication from the City relative to release of the records.

The City of Louisville erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35. Although Mr. Lukins offered repeated assurances that the City had begun the process of identifying and compiling the requested records, he did not designate the place, time and earliest date on which the records would be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act.

The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet. Although Mr. Lukins did not invoke KRS 61.872(6) to authorize nondisclosure of the documents Mr. Cullinan requested, it is apparent that the task

of gathering the documents might necessitate a reasonable extension of the three day period of limitation. It is our opinion, nevertheless, that the nearly four months which elapsed between the date Mr. Cullinan submitted his initial request and the last reported release of records by the City represents an inordinate and unreasonable delay.

In an early opinion, this Office recognized:

OAG 77-151, at p. 3. Nevertheless, we have also recognized:

OAG 76-374, at p. 5. 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 accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.

Nevertheless, we see nothing wrong with the City's policy of processing open records requests through its Law Department. In our view, this policy insures uniformity and adherence to the law. The policy may, however, be problematic if it occasions delays in agency response. Accordingly, the City is encouraged to streamline its policy by educating the

various agencies throughout city government on the importance of providing a timely response as well as timely access to records.

We concur with the City in the position it takes relative to nonexistent records, or records which it cannot locate. This Office has consistently recognized that a public agency cannot afford a requester access to records which it does not have, or which do not exist. OAG 83-111; OAG 86-35; OAG 87-54; OAG 91-112; OAG 91-220; 93-ORD-95. In its series of responses to Mr. Cullinan's requests, the City furnished him with all existing records which satisfy his requests. This was a proper response to the extent that the City could not provide access to records which it did not have. If, however, their are remaining documents identified in Mr. Cullinan's request with which he has not been provided, the City should make every effort to locate those documents so that they may be made immediately available to him.

When confronted with a request to inspect public records, an agency must address two questions: Whether it has the documents requested, and if it does, whether the documents are subject to public inspection. We must assume that the City has made a thorough search of the records reposed in each of the agencies identified in Mr. Cullinan's request, and provided him with all existing nonexempt documents. As Mr. Lukins correctly observes, the Attorney General is not empowered to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist. As we noted in OAG 86-35, at page 5:

Simply stated, an appeal to the Attorney General under the Open Records Act is not the appropriate forum for resolution of records management issues.

The Open Records Act regulates access to public records, and not records management. Our decision must be limited to the question arising under KRS 61.870 to KRS 61.884. That question is: Does the public agency have the documents in its possession at the time of the requests? OAG 83-111; OAG 87-54; OAG 88-5. Mr. Lukins' responses were

sufficient and proper under the Open Records Act insofar as he released all existing documents which had been located and which satisfied Mr. Cullinan's request. We repeat, if the City is in possession of additional records identified in Mr. Cullinan's request, it should concentrate its energies on making those records immediately available.

As a separate matter, we note that the Open Meetings Act requires a public agency to record the minutes of actions taken at every meeting. KRS 61.835. Since the various entities whose minutes Mr. Cullinan requests appear to be public agencies for purposes of the Open Meetings Act, their apparent failure to record minutes of actions taken at their meetings may constitute a violation of the Act. If Mr. Cullinan wishes to raise this issue, he may do so in a separate appeal pursuant to KRS 61.846.

With respect to Mr. Cullinan's concern about the destruction or concealment of documents it should be noted that KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof in the instant appeal that the remaining documents were concealed or destroyed for this or any other reason. Such evidence, if it exists, should be presented to the local prosecutorial authorities who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render a decision on this question in an open records appeal.

Mr. Cullinan and the City of Louisville 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 actions against the City 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/1086

Distributed to:

Hon. Tom Lukins

Assistant Director of Law

City of Louisville

Department of Law

Room 200, City Hall

Louisville, KY 40202-2771

Hon. Royden K. Cullinan

Cullinan Associates, Inc.

220 West Main Street

Louisville, KY 40202