Request By:
Mrs. Vicki Pettus
UST Coordinator
Program Development Branch
Department for Environmental Protection
Division of Waste Management
18 Reilly Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. J. T. Lunsford has appealed to the Attorney General pursuant to KRS 61.880 your denial of Ms. Joy Taylor's request to obtain a list of current data relative to underground storage tank owners and operators in Kantucky from your agency.
In a letter to you, dated July 21, 1987, Ms. Taylor requested that you provide the firm she represents with "a listing of the most current data available on underground storage tank owner/operators in Kentucky." The categories and kinds of information she requested included the location, address, telephone number, contact or manager's name, number of UST's at locations, capacity of the various UST's, age and materials of construction of UST's, internal and external protection, status of use and the type product contained in UST's. Ms. Taylor stated that it was her understanding that all of the data requested was stored on a computer.
You replied to Ms. Taylor in a letter dated August 6, 1987, and said in part as follows:
"We have received over 11,600 Notification Forms to date, and continue to receive 10-15 additional forms each week. While the majority of these forms have been entered into a data management system, our staff is still involved with corrections, amendments and the software revisions. Without causing an undue burden on our staff, therefore, we are unable to make any listing - computerized or print - available at this time."
You further advised Ms. Taylor that you would keep her request on file and when you are in a position to offer the requested data she would be notified of its availability.
In his letter of appeal to this office dated August 21, 1987, Mr. Lunsford asked this office to make the requested data available to him. He said that efforts were made to make the data transfer as simple, cost efficient and convenient as possible. He further stated that your agency did not respond to the request within the statutorily authorized time period.
The undersigned Assistant Attorney General contacted you by telephone on September 1, 1987. You advised that almost 12,000 forms have been filed in connection with the Underground Storage Tank Program. Your agency is in the process of establishing a computerized data system relative to this information. This system should be completed in a few weeks and computerized lists of this material should be available about October 1, 1987, at which time Mr. Lunsford and others who are interested in such data will have the opportunity to acquire it. You also advised Mr. Lunsford on two occasions over the telephone that the forms themselves are filed by counties and he could examine those forms to acquire the data he seeks if he does not want to wait until your agency's computerized lists are available.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880 (1) which provides that each public agency, upon a request for records made under the Open Records Act, shall determine within three working days after the receipt of such a request whether to comply with the request and shall notify in writing the person making the request, within the three day period, of its decision. See also KRS 61.880(2) stating in part that a copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General.
We trust that in the future your agency will comply with those terms and provisions of KRS 61.880(1) and (2) noted above.
The Kentucky Open Records Law (KRS 61.870 to KRS 61.884) gives any person the right to inspect the public records of a public agency which are not subject to the exclusions to public inspection set forth in KRS 61.878(1)(a) to (j). In this situation, however, we are dealing with records, computerized records, which are in the process of being prepared and which are not yet available for inspection by the requesting party or anyone else.
The public agency has offered to let the requesting party examine the documents in the form in which the agency has received them and prior to the data being transformed into computerized records. Apparently the requesting party has declined this offer. The agency has offered to make a copy of the computerized records available to the requesting party after the computerization process has been completed. Apparently the requesting party does not want to wait until that process has been concluded.
While a public agency is required to make the public records it possesses available for inspection, it is not required to compile data in a list form which is not in existence in that form prior to the request. Thus, at the present time the computerized lists are not available to anyone and the agency need not prepare, just for the requesting party, a computerized data list to satisfy his request for such data and material.
In OAG 76-375, copy enclosed, we said in part that a person does not have the right to require a list to be made from public records if the list described does not already exist. If such a list exists and is not subject to exclusion from public inspection by law, a person may inspect the list and obtain a copy of it. See also OAG 84-342, copy enclosed.
This office said in OAG 81-333, copy enclosed, that there is a difference between a request for information and a request to inspect records. "The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." When an agency has compiled data, the document containing the data should be made available for inspection and copying. However, if no such compilation has been made, a requesting party cannot require the agency to make such a list of data.
While the public agency should have responded within the statutorily imposed time period and a copy of the letter of denial should have been forwarded to the Attorney General, the public agency acted within the provisions of the Open Records Act when it refused to furnish computerized listing of data to the requesting party as the list is in the process of being prepared and the computerized data system has not yet been completely prepared and installed.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. J. T. Lunsford, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).