Request By:
Mr. Reginald L. Thomas
General Counsel
Kentucky State University
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Lisa Summers, a staff writer for the State Journal, has appealed to the Attorney General, pursuant to KRS 61.880(2), your response to her February 7, 1992, request to inspect "[a]ll credit card charges made on [Kentucky State U]niversity cards from November 15, 1991 to January 31, 1992."
You responded to Ms. Summers' request in a letter dated February 14, 1992, advising her that Kentucky State University "did not have between November 15, 1991 and January 31, 1992 a university-owned credit card nor does the university presently own such a card. "
In her letter of appeal to this Office, Ms. Summers states that it is her understanding that the University pays the annual fees for credit cards carried by its administrators, which bear the name of the University as well as the name of the administrator. She indicates that she also believes that the University receives a printout of all charges made on the cards.
In a letter to this Office dated February 24, 1992, you explained that your February 14 letter to Ms. Summers was not a denial. Instead, the letter served to inform the State Journal that the University did not own a credit card during the period identified. In addition, you noted that the University does not pay any annual fees for credit cards owned by its employees. The printouts of employee charges received by the University are issued by the credit card company as a "gratuitous gesture," and are not retained "because the information contained thereon is of a private and personal nature exempt from disclosure under KRS 61.878(1)(a)." In closing, you emphasize that the credit cards "are owned exclusively by University employees, and all charges and fees . . . are paid solely by the employees."
Ms. Summers requests that this Office issue an opinion stating whether the printouts or charge receipts can be legally withheld. For the reasons set forth below, we conclude that you properly responded to Ms. Summers' request.
OPINION OF THE ATTORNEY GENERAL
Although this Office has previously held that inspection of credit card charges must be permitted when the charges are incurred by a public agency and involve the expenditure of public funds, we do not believe that the logic of that opinion can be extended to the present appeal. OAG 89-27. You acknowledge that the credit cards bear the Kentucky State University logo, but indicate that they are privately owned. The cards are the financial responsibility of the individual whose name appears on them. Hence, no University funds are expended to discharge the debts incurred by the card holders, or in payment of the annual fee. While the printout of charges must be considered a "public record" within the meaning of KRS 61.870(2), since it is "in the possession of or retained by a public agency, " we concur with you in your view that it contains information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, and is therefore exempt under KRS 61.878(1)(a).
It should also be noted that because the University does not retain the printouts, no documents exist which satisfy Ms. Summers' request. This Office has consistently recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112. As we observed in OAG 86-35, at p. 5, "This office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." Accordingly, Ms. Summers' appeal must be treated as moot. OAG 88-44.
While it is certainly true that the public must be afforded access to the business records of a public agency, OAG 81-291; OAG 82-169, we do not believe that the printouts requested by Ms. Summers can be properly classified as business records. It is therefore our opinion that the University acted consistently with the Open Records Act in its response to her request.
As required by statute, a copy of this opinion will be sent to the requesting party, Lisa Summers. Ms. Summers may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).