Request By:
Mr. Raoul Cunningham
Deputy Commissioner
Department of Personnel
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Jim Malone has appealed to the Attorney General pursuant to KRS 61.880(4) your handling of his request for records and documents and copies of those materials. He is particularly concerned with the amount of money he was charged to obtain copies of the documents involved.
The letters, notes and the memorandum made available to this office indicate that Mr. Malone, in a letter dated January 22, 1988, requested that you furnish him the following documents: "A printout showing all state employees, merit and non-merit, hired after December 15, 1987; their jobs and their rates of compensation."
You responded to Mr. Malone in a letter dated January 26, 1988, and advised him as follows:
We will be glad to furnish this information to you. However, there would be a charge of approximately $147.00 in programming and software costs. This is a charge by the Department of Information Systems and not by the Department of Personnel. There is no charge for the services of the Department of Personnel.
If you would like for us to proceed with this request at the cost indicated above, please let me know and we will proceed.
A memorandum from Mr. Ernest P. Fowler to Mr. Malone, dated February 26, 1988, stated that the cost to produce the computer information requested would be $147.00.
Mr. Malone's letter of appeal to the Attorney General, received March 1, 1988, stated that he had authorized you to compile the information he subsequently received. He is concerned, however, with the amount you have charged him for the material. In another letter to this office, received March 7, 1988, Mr. Malone said in part:
We later learned that because of a mutual misunderstanding, I did not get all of the data I wanted in the original printout.
To get what we wanted required a second computer run at an additional $25 charge. The total invoice to the Personnel Dept. [via the State Treasurer] is now $172.00.
I again wish to restate that the charges were explained before the information was delivered. We are not questioning the bill, just the principle.
The undersigned Assistant Attorney General talked with you by telephone on March 7 and March 9, 1988. You stated that when Mr. Malone made his original request there was no centralized list containing the names, jobs and salaries of all persons (merit and non-merit) hired by the state after December 15, 1987. Such a list had to be prepared and the Department of Information Systems of the Finance Cabinet prepared the necessary program to assemble the material from the state computers. Its fee for the work was the same fee passed on to Mr. Malone by the Department of Personnel. Since the original request did not pertain to employee transfers a second computer list was prepared (at the cost of $25) to compile that information when Mr. Malone requested it.
Other than obtaining the material and documents in the way that he did you are of the opinion that Mr. Malone's only other alternative might have been to contact the appointing officer of each Cabinet of State Government to obtain the records in question as they pertain to that particular Cabinet.
OPINION OF THE ATTORNEY GENERAL
The Kentucky Open Records Law (KRS 61.870 to KRS 61.884) gives any person the right to inspect and copy the records of a public agency which are not subject to the exceptions to public inspection set forth in KRS 61.878(1)(a) to (j). In this situation, however, the requesting party was seeking a computer printout of data, a list of all personnel hired after December 15, 1987, and their jobs and salaries. That type of list did not exist at the time the request was made.
This office has stated that 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. A person does not have the right to require a list to be made from public records but if the list already exists, and is not subject to the statutory exceptions to public inspection, a person may inspect the list and make a copy of it. See OAG 76-375, copy enclosed, at page three, and OAG 87-59, copy enclosed, at page four.
In connection with the compilation of lists, this office has said that a public agency is not required to prepare a list in connection with a request under the Open Records Act. However, it may sometimes be more expedient for the agency to compile the material in a list form than to allow a person to examine various public records to prepare his own list. Furthermore, if the public agency prepares such a list for the purpose of selling it, the public agency may charge for the staff time required to prepare the list. If a list is already in existence and someone wants a copy of it, the public agency is bound by the provisions of KRS 61.874(2). That statute states, "The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required." See OAG 84-127 and OAG 84-93, copies of which are enclosed, concerning the preparation of lists in connection with the Open Records Act.
In the situation under review there was no available list containing the information sought by Mr. Malone. You advised him that a computer program would have to be developed to prepare the list he wanted. You also told him what it would cost and you asked him if he wanted to proceed under those circumstances. This was not a situation where a public agency merely had to make a copy of an already existing list.
In conclusion, it is the opinion of the Attorney General that the public agency was not bound by the provisions of KRS 61.874(2), pertaining to costs levied for copies of existing public records, as the material requested by the requesting party involved a list which did not exist when the request was made and the public agency could therefore charge what it cost to prepare, program and reproduce a list containing the material in question.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Jim Malone, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.