NOT TO BE PUBLISHED
97-ORD-29
February 24, 1997
In re: Ernest M. Pitt, Jr./City of Grayson
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Grayson's response to an open records request submitted by The Daily Independent. On October 28, 1996, reporter Chris Rice requested “any information about city funds being used in the settlement of a sexual harassment complaint by Beth Justice and Sheila Binion or their representatives and the city of Grayson and William Lewis. . . .includ[ing] information about which city account the money came from and how much money was used in settling this complaint.” Shortly thereafter, the city furnished The Daily Independent with a copy of the settlement agreement. The agreement did not disclose the source of the funds used in settling the complaint.
On November 21, Mr. Rice submitted a second open records request to the Grayson city attorney, the Grayson city treasurer, and the mayor. Again, he requested “information about city funds” used in the settlement of the sexual harassment complaint including the account from which the funds were withdrawn and the amount of city funds expended. In a letter dated November 25, 1996, city attorney Philip D. McKenzie responded to Mr. Rice's request. Noting that public agencies are not required to honor requests for information, Mr. McKenzie nevertheless advised Mr. Rice that each employee received a monetary consideration of $10,000.00. He further explained that this constituted all consideration under the terms of the settlement, and that “[t]here are no other writings or documents possessed by the city on the subject. . . .”
On behalf of The Daily Independent, Ernest M. Pitt, Jr. challenges the city's response. Mr. Pitt argues that the city should “[a]t the very least, . . . retain records of this transaction with its insurance carrier, as well as cancelled checks drawn on the City's general fund, or the fund otherwise used to provide the settlement proceeds.” He asks that this office review the city's actions to determine if those actions constitute a violation of the Open Records Act. For the reasons set forth below, we conclude that the city's response was only partially consistent with the Act, and that it failed to meet its burden of proof in explaining the nonexistence of records documenting the source of the settlement funds.
We begin by noting that the city properly characterized Mr. Rice's requests as requests for information, and not a request for specifically identified records. On this basis alone, the city could have properly denied the request. In an early opinion, this office recognized that “[b]lanket requests for information on a particular subject without specifying certain documents need not be honored.” OAG 76-375, p. 3. Elaborating on this position, in OAG 87-84 this office observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
OAG 87-84, p. 3; see also OAG 89-77, p. 4 (“Open records provisions address only inspection of records. They do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request”); OAG 89- 81, p. 5 (“Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information”); OAG 90-19, p. 3 (“Kentucky's Open Records provisions are not intended to provide a requester with particular `information,' nor to require public agencies to compile information to conform to the parameters of a given request”).
Nevertheless, the city treated Mr. Rice's requests as properly framed open records requests, and, in response to his first request, provided him with a copy of the settlement agreement. This, too, was entirely consistent with the Open Records Act. In construing the Act, this office has long recognized that records reflecting settlements of civil suits by public agencies are subject to full disclosure. See, e.g., OAG 78-35, OAG 88-43, OAG 90-36, OAG 91-20; OAG 92-17; OAG 92-34; 94-ORD-72. This position echoes the view advanced by the Kentucky Court of Appeals in Courier Journal v. McDonald, Ky., 524 S.W.2d 633, 635 (1974), in which the court held:
Certainly the payment of city funds in settlement of a suit against the city and some of its officers, based on negligence or misconduct in the performance of duty, is a matter with which the public has a substantial concern, against which little weight can be accorded to any desire of the plaintiff in that suit to keep secret the amount of money he received.
The Attorney General has observed, “[T]he public's right of access to a written settlement agreement, where a public agency is a party to the settlement, outweighs any privacy interests which can be identified.” OAG 92-17, p. 3. Thus, in cases where public funds are expended, the balance weighs heavily in favor of disclosure. OAG 91-20. In the latter opinion, this office stated:
It does not follow that if no city funds are expended in an out-of-court settlement involving the city because of the availability of insurance or otherwise, that the public has no legitimate interest in the settlement. City funds were expended in paying the insurance premiums and the public has a legitimate interest in how a lawsuit involving a public agency is settled, at least insofar as the settlement concerns the public agency.
OAG 91-20, p. 5.
In the present appeal, the city of Grayson argues that “[t]here are no other writings or documents possessed by the city on the subject [of the settlement agreement and the source of the funds used in settling the complaint],” which satisfy Mr. Rice's second open records request. This office has traditionally held that a public agency cannot furnish access to documents which it does not have. [1] We have also recognized that it is not our duty to investigate in order to locate documents which apparently do not exist. Thus, at page 5 of OAG 86-35, we observed, “This office is a reviewer of a course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents.”
Since the Open Records Act was amended in 1994, this office has applied a higher standard of review relative to denials based on the nonexistence of the requested records. See, e.g. 94-ORD-142, 97-ORD-17. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, offer some explanation for the nonexistence of the records. [2] In some instances, the explanation offered may warrant this office in referring the matter to the Department for Libraries and Archives for additional inquiries under the Chapter 171 Archives and Records Act. Although we do not believe that this appeal should be referred to the Department, we find that the city failed to meet its burden of proof in explaining why there are no records in its custody documenting the source of settlement funds.
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
90
Distributed to:
Ernest M. Pitt, Jr.
Holbrook & Pitt
200 Home Federal Building
1500 Carter Avenue
Ashland KY 41101
Martha LeMaster
Grayson City Clerk
302 East Main Street
Grayson KY 41143
Philip McKenzie
City Attorney
Grayson City Building
Grayson KY 41143
[1] See, e.g. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 92-34.
[2] Such an explanation is clearly warranted here. If funds were expended from the city's general fund, that expenditure would be reflected in the annual budget ordinance or an amendment to the budget. KRS 91A.030(1) and (10). If the source of the settlement funds was the city's insurance company, the expenditure might be reflected in correspondence documenting same.