NOT TO BE PUBLISHED

96-ORD-113

May 16, 1996

In re: William Jeffery Pribble/Scott County Fiscal Court and Kentucky Association of Counties All Lines Funds

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the responses of the Scott Fiscal Court and the Kentucky Association of Counties All Lines Fund (hereafter “All Lines Fund”) in relation to Mr. William Jeffery Pribble's open records request to inspect public records relating to his culvert and flooding complaint to the Scott Fiscal Court.

Mr. Pribble sought copies of records submitted to the two agencies to verify the accuracy of a previous report prepared by American Engineering Company regarding the flooding of his tobacco field. His request specifically included all notes, calculations and statements of others used to verify information submitted to Willis Corroon by the Scott County Fiscal Court, American Engineering and William Jeffery Pribble.

In addition, Mr. Pribble requested copies of fees paid to Willis Corroon Claims Service and an itemized statement of the cost of the investigation.

The Fiscal Court's response to Mr. Pribble's request, dated October 6, 1995, states in relevant part:

The request for all notes, calculations and statements of others used to verify information submitted to Willis Coroon (sic) by the Scott Fiscal Court, American Engineering and William Jeffery Pribble, if any we have, will be made available at your convenience, likewise at the time and place set out above.

The All Lines Fund's response to Mr. Pribble's request, dated June 2, 1995, in part pertinent, states:

Willis-Corroon has thoroughly reviewed this situation, and in consultation with our office, has concluded that there was no negligent act on behalf of Scott County referencing the flooding of your tobacco field. The county had previously replaced a 36-inch culvert with two 27-inch culverts, which appear more than sufficient for drainage through this area. It is my further understanding from reviewing the file that the calculations and notes relative to American Engineering which you requested have been previously provided you by Scott County.

In his letter of appeal to this office, Mr. Pribble appeals the refusal or unwillingness of the Scott County Fiscal Court and All Lines Fund to provide him with access to records incorporated in a verification of accuracy report used to substantiate the accuracy of a previous report and calculations prepared by American Engineering Company for the Fiscal Court.

In addition, Mr. Pribble complains that when the Fiscal Court responds to his open records requests, it has the Sheriff's Department serve him with the response. Mr. Pribble states he feels this is a malicious attempt to intimidate and deny him his right to public information.

For the reasons which follow, it is the conclusion of this office that the responses of the Scott County Fiscal Court and the Kentucky Association of Counties All Lines Fund were consistent in part and inconsistent in part with the Open Records Act.

We begin by noting that the responses were procedurally deficient to the extent they failed to advise Mr. Pribble whether the agency had the requested records and, if so, to make them available in a timely fashion. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

In 94-ORD-55, this office stated:

Two basic questions confront a public agency in any request for access to records. The first question to be answered is whether the document exists and is in possession or custody of the public agency. The second question is if the document exists and is in possession or custody of the agency, must the record be made available for inspection or is it subject to one of the statutorily recognized exceptions to public inspection.

Thus, the city in its responses should have specifically stated the materials requested that do not exist or that it does not have.

The Scott County Fiscal Court's response that the records would be made available to Mr. Pribble, “if any we have,” is insufficient because it neither advises whether the agency has the requested records nor sets forth an exception authorizing the withholding of the records and an explanation how that exception applies to the records withheld.

The All Lines Fund's response is likewise deficient in that it does not state whether it has the requested records. Its statement that it is its “understanding from reviewing the file that the calculations and notes relative to American Engineering which you requested have been previously provided you by Scott County,” is insufficient in light of Mr. Pribble's request seeking those records. Moreover, in 92-ORD-1232, this office determined that the All Lines Fund was a “public agency” for purposes of the Open Records Act. Thus, it was required to respond Mr. Pribble's request as required by KRS 61.880(1) and advise whether it had the requested records.

Moreover, the presence of litigation alluded to by the All Lines Fund does not operate to prevent inspection of public records, since separate statutory grounds have been provided by the General Assembly. 95-ORD-27. In OAG 89-65, we stated:

Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.

In a previous open records decision of this office involving Mr. Pribble and the Scott County Fiscal Court concerning the original report by American Engineering Company on Mr. Pribble's culvert and complaint, we stated:

The calculations and other information that were incorporated in or made a basis of the report should be made available for inspection. The public should be allowed to check the accuracy of figures and information which form the basis of a study done for a public agency and paid for by public funds. This is particularly so where no exception from disclosure is cited.

An agency cannot avoid the requirements of the Open Records Act by placing or maintaining public records with third parties. OAG 88-48. The physical location of a record is not always determinative of its public or non-public character. What is determinative is whether the record is “prepared, owned, used, in the possession of or retained by the public agency.” KRS 61.870(2); 95-ORD-156. In the instant appeal, the requested records were used to verify the accuracy of American Engineering's previous report. Thus, for the same reason stated in Mr. Pribble's previous appeal in 95-ORD-14, the calculations and other information incorporated in or made a basis of the report to verify the accuracy of the previous report prepared by American Engineering Company should be made available for Mr. Pribble's inspection.

In response to Mr. Pribble's request for copies of fees paid to Willis Corroon Claims Service and an itemized statement of the cost of the investigation, the Fiscal Court stated that such records were not existent as it had not paid any such fees to Corroon Claims Services, nor had there been any cost of investigation. To the extent the requested records did not exist, the Fiscal Court's response was proper and consistent with the Open Records Act.

Having failed to inform Mr. Pribble whether they had the requested records or to invoke one of the applicable exceptions, and explain its application to the records withheld, the Scott County Fiscal Court and the All Lines Fund violated KRS 61.880(1), and failed to meet its burden of proof in sustaining their action per KRS 61.880(2)(c). Accordingly, we are left with no alternative but to find that these agencies's responses were both procedurally and substantively deficient, and to order disclosure of the requested records.

Finally, public agencies must work in a spirit of cooperation with individuals who request to inspect public records. Absent a justification for so doing, the Fiscal Court should find a less obtrusive manner than having the Sheriff's Department “serve” its open records response on Mr. Pribble. Any method or manner of response which would tend to intimidate or frustrate a citizen in asserting his right to inspect public records would be inconsistent with and in violation of the Open Records Act.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/1479

Distributed to:

William Jeffery Pribble

511 Mt. Gilead Church Road

Sadieville, Kentucky 40370

George Lusby

Scott County Judge/Executive

Court House, Main Street

Georgetown, Kentucky 40324

Phil Williams

Attorney at Law

Williams & Wagoner

One Oxmoor Place

101 Bullitt Lane, Suite 202

Louisville, Kentucky 40222