Let's be very clear about this. Kentucky employers' noncompliance with a state bonding requirement aimed at ensuring "the payment of all wages due from the employer" is the story here — not the fact that the Labor Cabinet erected unnecessary barriers to records identifying the non-compliant employers.

On balance, this is clearly the lesser of the issues.

But in a pattern of conduct that has become all too familiar to requesters seeking records of state agencies, the Labor Cabinet denied the Herald-Leader's open records request for a list of the companies violating the state law because it "is not required to maintain such a list" and therefore does not keep a list.

The line of authority on which the Labor Cabinet relied is, once again, mired in the past.

In the early days of the open records law, when records were maintained almost exclusively in paper format, the attorney general recognized that a public agency had no duty to create a previously nonexistent record, or to generate a previously nonexistent list, to fulfill an open records request.

The agency satisfied its obligation under the open records law by producing records to the requester from which the requester could create/compile his or her own list.

This meant the obligatory production of voluminous records in paper format rather than the non-obligatory creation of a previously nonexistent list.

As automated record keeping came to dominate the world of records management, creation of a "list" took on an entirely new meaning. Paper records formerly stored in file cabinets and requiring manual searches were replaced by easily searchable "electronic records" stored in databases. Reports are now generated with a few key strokes.

Should an agency be permitted in to evade an open records request by invoking a line of open records opinions dating back to the mid-1970s, equating an easily generated report to the manual creation of a list?

Or, for that matter, should an agency be permitted to create new exceptions to the open records law. That is what the Transportation Cabinet did In denying WDRB's request for the risk assessment report of the Riverlink Ohio bridge toll system, completed by HNTB Corp. in April 2019.

https://www.wdrb.com/in-depth/riverlink-analysis-details-high-risk-conc…

Reporter Marcus Green submitted a request for the report after HNTB completed it, but was denied access because the report was, according to Cabinet officials, a "living document."

There is, of course, no exception to the open records law for "living documents."

The Cabinet relented only after WDRB appealed the denial to the attorney general. There is no open records decision addressing this dispute on the attorney general's website. It appears the Cabinet backed down and agreed to release the report, eliminating the need for formal adjudication.

Again, we acknowledge that this is a secondary issue but one that shouldn't be ignored.

The Herald-Leader ultimately obtained the records it sought — as did WDRB — through their persistence and after unnecessary delays, but the question remains.

Should the media or a citizen be required to pursue extraordinary legal remedies to obtain easily accessible public records on the basis of anachronistic legal authority or fabricated exceptions that do not exist in the law?