Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Open Records Act in responding to inmate John Strange's April 10, 1998, request for records relating to the soap and toothpaste provided to inmates. Mr. Strange requested access to "the 'product data sheet' and/or 'product safety sheet' " for the soap and toothpaste used at E.K.C.C. As of April 21, Mr. Strange had received no response to his request. He therefore initiated this open records appeal. For the reasons that follow, we find that E.K.C.C. erred in failing to issue a response to Mr. Strange's request within three business days, but that it went above and beyond its statutory duty in attempting to obtain a document not already in its possession to furnish to the requester.
In response to this office's notification of receipt of open records appeal, Corrections Cabinet staff attorney Tamela Biggs advised us that Mr. Strange's request was received by Martha Prater, open records coordinator at E.K.C.C., on April 13. Because she did not have the requested records, Ms. Prater referred the application to Lt. Leonard Goodpaster, an employee of E.K.C.C.'s laundry, for response on the same day. Lt. Goodpaster, who was unfamiliar with the Open Records Act, located the material safety data sheet for the handsoap, and contacted the manufacturer of the toothpaste to obtain the material safety data sheet for the toothpaste. Because he was unaware of the three day deadline for agency response to an open records request, Lt. Goodpaster held the data sheet for the soap until he received the data sheet for the toothpaste. Ms. Biggs advised Lt. Goodpaster to forward the soap data sheet to Mr. Strange immediately, and to advise him that the other data sheet would be sent to him upon receipt from the manufacturer.
Eastern Kentucky Correctional Complex erred in failing to respond to Mr. Strange's request within three business days. Again, we remind E.K.C.C. of the procedural guidelines of the Open Records Act. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In an open records decision addressed E.K.C.C., this office opined:
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
The procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. It is incumbent on EKCC to streamline its policies by educating its employees, including caseworkers, on the importance of providing a timely response, as well as timely access to records.
95-ORD-105, p. 4, 5. We reaffirm this view today. While Lt. Goodpaster's lack of familiarity with the Open Records Act may explain E.K.C.C.'s procedural violation of the Act, it does not excuse the violation. Before forwarding any future records request to an employee of E.K.C.C., Ms. Prater should insure that that employee is thoroughly conversant in the law, and if not, she should make the employee aware of the facility's duties and obligations under the Act.
With respect to the material safety data sheets, we find that although Lt. Goodpaster should have forwarded the data sheet for the soap, which was in his custody, to Mr. Strange upon prepayment of copying charges, neither he nor the facility generally was obligated to obtain a copy of the data sheet for the toothpaste in order to satisfy Mr. Strange's request. Because this record was not in the custody of the facility, it is not a "public record" for purposes of the Open Records Act. On this issue, the Attorney General has observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872[(6)].
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). In a later decision, we observed:
The facts presented in this appeal are analogous to the facts presented in 95-ORD-125. We believe that that decision, coupled with the Kentucky Court of Appeals' opinion in Kentucky Central Life Insurance Co. v Park Broadcasting of Kentucky, Inc., Ky. App., 913 S.W.2d 330 (1996), and the United States Supreme Court's opinions in Forsham v Harris, 445 U.S. 169, 63 L. Ed. 2d 293, 100 S. Ct. 978 (1980) and Kissinger v Reporters Committee for Freedom of the Press, 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980), [a public agency's denial of a request for records which are not in its custody] .
In 95-ORD-125, this office held that the Louisville Firefighter Pension Fund properly denied a request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets. Because the confirmation tickets were neither possessed nor used by the Fund, we concluded that they could not be characterized as "public records" as defined in KRS 61.870(2).
See also, 96-ORD-41 (holding that the Department of Military Affairs properly denied the request for records relating to vending services at an air national guard facility where those records were prepared by, and in the possession of, a private corporation, and were never in the Department's possession).
This position is generally consistent with the standard articulated by the United States Supreme Court in Forsham v Harris, 445 U.S. 169, 186, 100 S. Ct. 978, 987, 63 L. Ed. 2d 293 (1980), and Kissinger v Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S. Ct. 960, 969, 63 L. Ed. 2d 267 (1980). In these opinions, the Court held that "an agency must first either create or obtain a record as a prerequisite to it becoming an "agency record" within the meaning of the (Freedom of Information Act, 5 USCS § 552)." Forsham at 63 L. Ed. 2d 305. The Court rejected the notion that a public agency's right of access, and its right to obtain custody of records, brought those records within the reach of the Act, concluding that "FOlA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Forsham at 63 L. Ed. 2d 307.
Although the Kentucky Open Records Act does not track the language of the federal act, the laws are identical in at least one significant respect: neither law imposes a duty on the public agency to create records. Thus, the Supreme Court's holding that "by ordering [a public agency] to exercise its right of access, we effectively would be compelling the agency to 'create' an agency record since prior to that exercise the record was not a record of the agency[,]" applies with equal force to agencies governed by the Open Records Act. Forsham at 63 L. Ed. 2d 308.
97-ORD-15, p. 5, 6.
It is for this reason that we find that E.K.C.C. went above and beyond its statutory duty in contacting the toothpaste manufacturer to obtain a copy of the material safety data sheet for the toothpaste used at the facility. Under the cited line of authority, the Open Records Act applies to records that are created or obtained by the agency, and not to records which merely could have been obtained. We do not mean to suggest that these extraordinary efforts constitute a violation of the Open Records Act, only that E.K.C.C. was not statutorily obligated to go to these lengths on behalf of Mr. Strange.
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.