Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Lewisburg's response to Paul Tucker's open records request was in violation of the Open Records Act. On February 23, 1998, Mr. Tucker hand delivered an open records request to Gwyneth J. McKinney, Mayor of Lewisburg, in which he requested the following information.
On Friday, 20<th> of February, 1998, what was the probable cause that brought Alan Alsup to enter the Amvet's property on Highway 106 west, outside the city of Lewisburg, at approximately 7:15 pm?
I also request the names, dates, and times he has stopped persons who were leaving or entering Amvet's property within the last three months, and the names of those he followed and stopped after leaving Amvet property?
* * *
Mr. Alsup also made it clear to me that he intends to stop me. I request to know for which reason he intends to do so.
I also request the information leading to the dismissal or resignation of officer Alsup from the Russellville, Kentucky police department.
By letter dated February 25, 1998, Gwyneth J. McKinney, Mayor, responded on behalf of the City. In her response, Mayor McKinney, in part, pointed out that she was not the custodian of any records which Mr. Tucker sought. Specifically, the Mayor advised that she had no records pertaining to the Russellville Police Department and any records pertaining to Officer Alsup's resignation from that Department would have to be obtained from his supervisors in that city. Addressing Mr. Tucker's request for a list of persons stopped entering or leaving the Amvet property within the last three months, the Mayor advised that no such list existed.
We are asked to determine whether the City's response to Mr. Tucker's request was consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude that it was.
We begin by noting that the greater portion of Mr. Tucker's request was for information rather than a request to inspect specific records. This office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Our position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given request. In OAG 87-84, we observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
Thus, we conclude the City was not obligated, under the Open Records Act, to provide answers to Mr. Tucker's requests for information such as what was the police officer's probable cause to enter or his reasons to stop someone in the future.
The City's response that it had no records relating to Officer Alsup's resignation from the Russellville Police Department was proper. This office has long recognized that a public agency cannot afford a requester access to a record which it does not have or which does not exist. 98-ORD-25; OAG 83-111. This office has no reason to doubt the City's response that it does not have the requested records. Accordingly, the response was proper and consistent with provisions of the Open Records Act insofar as the agency cannot make available for inspection a document which it does not have in its possession or custody.
We further conclude that the City's response that no list of persons stopped entering or leaving the Amvet property existed and that the City was not required to create a list that was not already in existence was also proper. This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See 96-ORD-251 and the opinions cited therein. The Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request. 93-ORD-50. Accordingly, we conclude that the City's response to Mr. Tucker's request did not violate the Open Records Act.
The Mayor did notify Mr. Tucker that the criminal and traffic records are on file in the Logan County Courthouse. The only additional duty of the public agency in such a situation is to furnish the name and location of the official custodian of the agency's public records. KRS 61.872(4). Accordingly, the name and location of the official custodian of the public agency in the courthouse which maintains the records requested by Mr. Tucker should be immediately furnished to him.
Finally, Mr. Tucker, in his letter of appeal, challenges the Mayor's response and interpretation relative to probable cause, the "plain view doctrine," and the location of the Amvet property from the road and whether it could be seen at dark. The role of the Attorney General relative to appeals under the Open Records Act is set forth in KRS 61.880(2). This office is to determine whether the public agency acted consistently with provisions of the Open Records Act. Whether the agency properly interpreted the criminal law is a separate issue to be resolved in another forum and is not within the charge of the Attorney General in an Open Records Appeal. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.