Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Personnel Cabinet's response to a request for information submitted by Beverly Kirven, a field services manager in the Cabinet for Families and Children. In an undated letter, Ms. Kirven requested information for a pre-hearing conference before the Personnel Board. Specifically, Ms. Kirven asked for "[an explanation of why [her] grade was changed from a 14 to 15." In addition, she asked:
How many employees in which cabinets grades [sic] were changed by this action?
How many of the above employees received salary increments with this action, and in which cabinets are they employed?
Ms. Kirven did not indicate that her request was made under the Open Records Act.
On behalf of the Personnel Cabinet, Daniel F. Egbers, Managing Attorney, responded to Ms. Kirven's request on May 28. He provided a lengthy explanation for why her grade was changed from a 14 to a 15. Turning to her second and third questions, he stated that the Personnel Cabinet "would need to create a computer program to identify agencies and individuals who received these salary adjustments." Mr. Egbers indicated that there is no existing list of such agencies and employees. Continuing, he observed:
If you would like us to treat your request as one made under the Kentucky Open Records Act, please advise and we will order the programming necessary to secure the information. The cost of programming is $ 50.00 per hour, and we estimate a minimum of two programming hours to develop the data. If you want us to proceed with this, please submit your check, payable to the Kentucky State Treasurer in the amount of $ 100.00 to my office. We will rebate any unused amount or invoice you for any charge in excess of the estimate.
Apparently dissatisfied with this response, Ms. Kirven initiated this appeal to the Attorney General.
Ms. Kirven questions whether the Personnel Cabinet violated provisions of the Open Records Act by requiring her to submit an open records request, and assessing a $ 100.00 programming charge to generate the data she seeks. It is the opinion of this office that, to the extent that this appeal implicates the Open Records Act, the Cabinet's response was entirely consistent with that Act.
We begin by noting that there is no requirement in the law that a requester identify his or her request as an open records request. Where, however, the requester has failed to describe the records he or she wishes to inspect, the recipient public agency may require "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.872(2). This provision should not be used by the agency to delay or impede the exercise of rights granted by the Open Records Act, but as a means of avoiding, in Mr. Egbers's words, "the risk of a communication error."
Ms. Kirven requested information as opposed to records. 1 The Attorney General has long recognized that "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." OAG 79-547, p. 2. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. As we noted at page 5 of OAG 89-81:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies. See (OAG) 76-375. Open Records provisions do not provide for, and agency workers are not required to provide under them, instruction in understanding of the meaning or import of information shown upon records produced.
See also, OAG 81-333; OAG 86-51; OAG 89-77; OAG 90-19. Thus, the public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to nonexempt records, and not to require the compilation of information.
The Personnel Cabinet was not obligated to honor Ms. Kirven's request, or indeed, to treat it as an open records request at all, in view of its patent ambiguity. Nevertheless, in an attempt to accommodate her, Mr. Egbers issued a response in which he provided Ms. Kirven with the requested "explanation," and offered to produce the data she seeks upon receipt of a written open records application and payment of $ 100.00 for programming costs. In view of the fact that the data she seeks had not been previously compiled, the Cabinet's offer was proper and correct. KRS 61.874(3) provides, in part:
If a public agency is asked to produce a record in a nonstandardized format or to tailor the format to met the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
Because Ms. Kirven requested information in a specially tailored format, the Personnel Cabinet properly exercised its discretion under KRS 61.874(3) to require payment of its actual costs, as well as its staff costs for programming, if she elected to proceed under the Open Records Act. It is the opinion of this office that the Personnel Cabinet did not violate the provisions of KRS 61.870 through KRS 61.884 in its handling of this matter.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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