Request By:
Mr. Woody Dunn
Director
Division of Licensing and Regulation
Cabinet for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; GREG HOLMES, ASSISTANT ATTORNEY GENERAL
This is in response to a request for the opinion of this Office with respect to the denial by the Cabinet for Human Resources of a request for copies of:
records of any complaint filed against anyone in Owen County concerning violation of laws or regulations governing the operation of child day care facilities . . .
In its letter denying this request the Cabinet gave as grounds for its denial overbreadth and inadequate specificity.
The Cabinet's denial of the request was apparently based on KRS 61.872(5), a section of the Kentucky Open Records law which provides in pertinent part:
If the application places an unreasonable burden in producing voluminous public records . . . 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.
In OAG 88-79 we stated that employees of a public agency are not required to research and compile information to satisfy a request for public inspection where such information may be in bits and pieces among numerous other records. It appears that the Cabinet's records of complaints which are the subject matter of your request are not filed on the basis of the county of residence of the person against whom the complaints are made. Instead, such complaints are filed and maintained under the name of the facility in question.
As we noted in OAG 86-51 public agencies are not required to prepare and furnish lists which are at the time not in existence. However, the public agency is required to afford to the requesting party a reasonable opportunity to examine otherwise nonexempt material to attempt to secure the particular records he is seeking. We note in passing that the Cabinet's response fails to include a statement of the specific exemption authorizing the withholding of the records and an explanation of how the exception applies to the record withheld. This failure is violative of KRS 61.880(1), and the agency should take steps to comply with this statutory provision in future open records responses.
It is the opinion of this Office that although the Cabinet for Human Resources properly declined to provide information which is not consistent with its method of filing and maintaining records, the Cabinet must give the person making the request a reasonable opportunity to inspect nonexempt records pertaining to designated facilities to enable him to attempt to obtain the information he has requested.