NOT TO BE PUBLISHED

96-ORD-64

March 21, 1996

In re: Brian L. Cullinan/City of Louisville

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Louisville's denial of Brian L. Cullinan's May 22, 1995, request to inspect “records regarding the documentation of expenses of a contract vendor under a professional service contract with the City of Louisville.” Specifically, Mr. Cullinan requested access to specific records for out-of-pocket expenses incurred by Lynch, Cox, Gilman & Mahan. On behalf of the City of Louisville, Paul V. Guagliardo, Assistant Director of Law, denied Mr. Cullinan's request, advising him that “[t]he custodian is not in possession of the items . . . .” In a follow-up letter, Mr. Guagliardo explained that the requested records “are not `public records' as defined in KRS 61.870(2).” They are, instead, records belonging to the law firm, which is not a public agency. He reiterated that “the records are not and have never been in the custody or control of a `custodian' or the `official custodian'[ ]” as defined in KRS 61.870(5) and (6). This appeal followed.

The parties' positions are set forth in considerable detail in a series of letters accompanying this appeal. Mr. Cullinan argues that expense receipts for expenses billed to, and paid by, the City of Louisville are public records, despite the fact that the City did not take physical custody of them, because those records are “owned . . . by a public agency” within the meaning of KRS 61.870(2). The City responds that the expense receipts are not public records because they were neither created nor obtained by the agency, and were not in the agency's control when Mr. Cullinan's request was made, before his request was made, or after his request was made. It is not enough, the City argues, that it could have obtained, or demanded access to, the receipts. Because the records were never public to begin with, the issue of physical custody is irrelevant. Based on prior decisions of this office, as well as state and federal authorities, we concur with the City in its view that these records are not public records.

In an early opinion, this office observed:

There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a “public agency” as defined in KRS 61.870(1), and (2) the documents to be inspected must be “public records” as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872[(6)].

OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). In the instant appeal, the “custodian” of the disputed records is a private law firm, and therefore not a “public agency” as defined in KRS 61.870(1). The disputed records themselves are not “public records,” as defined in KRS 61.870(2), because they are not “prepared, owned, used, in the possession of or retained by a public agency.” In all material respects, the facts presented in this appeal are analogous to the facts presented in 95-ORD-125. We believe that that decision, coupled with the Kentucky Court of Appeals' opinion in Kentucky Central Life Insurance Co. v. Park Broadcasting of Kentucky, Inc., Ky. App., 913 S.W.2d 330 (1996), and the United States Supreme Court's opinions in Forsham v. Harris, 445 U.S. 169, 63 L.Ed.2d 293, 100 S.Ct. 978 (1980) and Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 63 L.Ed.2d 267, 100 S.Ct. 960 (1980), support the City's denial of Mr. Cullinan's request.

In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets. Because the confirmation tickets were neither possessed nor used by the Fund, we concluded that they could not be characterized as “public records” as defined in KRS 61.870(2). At page 6 of that decision, we reasoned:

Although the Fund was entitled to the confirmation tickets from the investment company, it determined they were not needed because information contained in them [was] adequately set out in the monthly accounting statements.

It is not the function of this office, in an open records appeal, to substitute its judgment or the judgment of a third party for that of a public agency's in deciding what records need to be created or retained. Under the facts of this case, the Fund acted consistently with the provisions of the Open Records Act.

See also, 96-ORD-41 (holding that Department of Military Affairs properly denied request for records relating to vending services at an air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession).

In a similar vein, the Court of Appeals recently held that records of a private insurance company undergoing rehabilitation were the private records of the company despite apparent state involvement in the rehabilitation process. Kentucky Central at 335. The court expressly stated that “[t]he company's records should not lose their private status simply because the rehabilitator has used, possessed, or has access to them.” Id.

This position is generally consistent with the standard articulated by the United States Supreme Court in Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980), and Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980). In these opinions, the Court held that “an agency must first either create or obtain a record as a prerequisite to it becoming an `agency record' within the meaning of the [Freedom of Information Act, 5 USCS §552].” Forsham at 63 L.Ed.2d 305. The Court rejected the notion that a public agency's right of access, and its right to obtain custody of records, brought those records within the reach of the Act, concluding that “FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.” Forsham at 63 L.Ed.2d 307.

Although we concede that Kentucky's Open Records Act does not track the language of the federal act, the laws are identical in at least one significant respect: Neither law imposes a duty on the public agency to create records. Thus, the Supreme Court's holding that “[b]y ordering [a public agency] to exercise its right of access, we effectively would be compelling the agency to `create' an agency record since prior to that exercise the record was not a record of the agency[,]” applies with equal force to agencies governed by the Open Records Act. Forsham at 63 L.Ed.2d 308. Accordingly, we find that Mr. Cullinan has not crossed the two legal thresholds identified in OAG 82-27; the custodian of the records he seeks is not a “public agency,” and the documents he wishes to inspect are not “public records.”

Kentucky's Open Records Law applies only to records which are in existence, and in the possession or control of a public agency. It does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request. This is not to say that a public agency can somehow secret away public records on private premises, and thus avoid the requirements of the Open Records Act. See, e.g., 95-ORD-126. Our holding is limited to the facts presented in this appeal. Because the records Mr. Cullinan seeks are not prepared, owned, used, in the possession of or retained by the City of Louisville, they are not governed by the Open Records Act.

While we believe that the records management issues implicit in this appeal have been addressed, at least as of June, 1995, by the implementation of the City's Professional Service Contract Procedure Revision, we have referred this appeal to the Department for Libraries and Archives, Public Records Division, for a determination of whether the City of Louisville violated the provisions of Chapter 171 of the Kentucky Revised Statutes and in particular KRS 171.640, relative to its duty to make and preserve records containing “adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities,” prior to implementation of this policy. KRS 171.640.

A party aggrieved by this decision may appeal it 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 proceeding.

A. B. CHANDLER III

ATTORNEY GENERAL

AMYE L. BENSENHAVER

ASSISTANT ATTORNEY GENERAL

aps/164

Distributed to:

Hon. Paul V. Guagliardo

Assistant Director of Law

City of Louisville

Department of Law

Room 200

City Hall

Louisville KY 40202-2771

Hon. Brian L. Cullinan

Attorney at Law

1406 Browns Lane

Louisville KY 40207

Richard N. Belding, Director

Public Recods Division

Department for Libraries and Archives

300 Coffee Tree Road

P. O. Box 537

Frankfort KY 40602-0537