Request By:
Charles P. Lawrence, Esq.
Cabinet for Human Resources
275 East Main Street, 4-West
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Kenneth S. Handmaker, Esq., has appealed to the Attorney General pursuant to KRS 61.800 your partial denial of his request to inspect and have copies furnished of various documents in your Cabinet's custody. The records in question pertain to adjustments for telephone and travel expenses for every IC/SNF facility for the periods ending December 31, 1982, December 31, 1983, and December 31, 1984.
In a letter to the Secretary of the Cabinet for Human Resources, dated June 25, 1986, Mr. Handmaker requested to inspect and to have copies furnished of numerous documents, including those he described as follows in numerical paragraphs seven and eight of his request letter:
"7. All documents that constitute, relate or refer to actions by or decisions of the Cabinet for Human Resources to adjust or to allow long distance telephone expenses as allowable reimbursable cost of each and every other IC/SNF facility on the respective facility's audited or unaudited cost report(s) for the periods ending December 31, 1982, December 31, 1983, and December 31, 1984, where applicable.
"8. All documents that constitute, relate or refer to actions by or decisions of the Cabinet for Human Resources to adjust or to allow expenses incurred for travel as allowable reimbursable cost of each and every other IC/SNF facility on the respective facility's audited or unaudited cost report(s) for the periods ending December 31, 1982, December 31, 1983, and December 31, 1984, where applicable."
In your letter to Mr. Handmaker, dated June 30, 1986, in regard to the requests contained in numerical paragraphs seven and eight of his letter, you replied as follows:
"Your requests as made in paragraphs 7 and 8 as they pertain to adjustments for telephone and travel expenses for every other IC/SNF facility for the periods ending December 31, 1982, December 31, 1983, and December 31, 1984, would require considerable investigation, research and compilation by the agency so as to cause an unreasonable burden on the agency and disruption of essential functions, in addition to not being specifically detailed, and therefore must be denied pursuant to KRS 61.872(5)."
In his letter of appeal to this office Mr. Handmaker refers to that portion of your letter of June 30, 1986, denying his requests as to the documents described in numerical paragraphs seven and eight and your reliance upon KRS 61.872(5). He maintains that the requested documents are unavailable from any other source and relate directly to issues involved in an administrative appeal pending before the Cabinet pertaining to the disallowance of long distance telephone and travel costs as reimbursable costs.
OPINION OF THE ATTORNEY GENERAL
KRS 61.872(5) provides as follows:
"If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to distrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence."
Before proceeding with our analysis of the situation presented by this appeal we direct your attention and that of Mr. Handmaker to KRS 61.872(1) and (2). The first provision states in part that all public records shall be open for inspection by any person, except as otherwise provided by the Open Records Act, with suitable facilities being made available by the public agency for the inspection process. The second provision provides in part that any person shall have the right to inspect public records during the public agency's regular office hours.
In OAG 81-198 we dealt with a request to inspect records described in part as those pertaining to fines levied against coal companies over a five year period. The requesting party was not requesting public employees to make any compilation of records. He merely reguested to inspect public documents during regular office hours which contained the information requested.
At page five of OAG 81-198 we said that the public agency's denial of the request and its reliance upon KRS 61.872(5) in support of its denial were improper. That particular request, within the context of the factual situation presented, did not place an unreasonable burden on the public agency in producing voluminous public records.
In connection with requests for information and the compilation of lists we direct your attention to OAG 81-333, copy enclosed, at page three, where we said:
"In OAG 79-547 we discussed the differnce between a request for information and a request for inspection of records and said: Recoves Law is not to provide information but to provide access to public records which are not exempt by law.' And in OAG 76-375 we said it is not necessary for an agency to make a list of items from its records if such a list does not already exist. When an agenecy has compiled statistics, the documents containing the statistics should be made available for public inspection and copying; but if no such compilation has been made, a reguester cannot require the agency to make one."
If a list containing the requested material has been compiled that list should be made available for public inspection. However, such a list need not be compiled merely to satisfy a request for documents made under the Open Records Act. Where a person requests that a list of material be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. Thus, if the records and materials requested, although not compiled in any kind of a list form, are nevertheless in the possession of the public agency, the files containing those public records should be made available for public inspection in order that the requesting party may attermpt to secure the particular documents and records with which he is concerned.
It is therefore the opinion of the Attorney General that the public agency's denial of the request for documents was proper to the extent that the public agency declined to prespare and furnish lists which were at the time not in existence. The public agency was in violation of the Open Records Act to the extent that its response stated or implied that the requesting party would not be afforded the opportunity of examining otherwise nonexempt material of the public agency to attempt to secure the particular records and documents with which he is concerned.
As required by statute a copy of this opinion is being sent to the requesting party, Kenneth S. Handmaker, Esq. Either of the parties to this appeal has the right to challenge this opinion in circuit court pursuant to KRS 61.880(5).