Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Kentucky Community and Technical College System's (KCTCS) response to Scott J. LeCates's open records request for the following agency records:
Any statistical data on KCTCS employee salaries and benefits used as reference material by KCTCS administrative staff working with the Hay Consulting Group, and specifically any and all information on the current:
Sandra Gubser, KCTCS's records custodian, divided Mr. LeCates's request into two parts and issued two separate responses to his request. Addressing first Mr. LeCates's request for any "statistical data on KCTCS employee salaries and benefits used as reference material by KCTCS administrative staff working with the Hay Consulting Group," [designated as "Open Records Request No. 99-124"], Ms. Gubser advised:
In response to the above request, the information requested by the Hay Consulting Group was provided at the time of the study and no records have been retained of the information they requested. Therefore, your request is denied for the reason that no records exist which respond to this request. KRS 61.870(2) requires that only records in existence are subject to the Open Records Law.
Responding to the second part of Mr. LeCates's request for the specifically enumerated categories of records relating to current salaries and benefits of KCTCS, [designated as "Open Records Request No. 99-125"], Ms. Gubser partially denied a portion of this request, stating:
Your request for the average faculty salary, average salary of staff, excluding Central Office personnel, and average salary of staff is denied for the reason that no records are maintained on average salary information. Therefore this portion of your request is denied pursuant to KRS 61.870(2), which requires that only records in existence are subject to the Open Records Law.
In his letter of appeal, Mr. LeCates agrees that KCTCS is not required to produce any statistical or logistical information that does not exist, or requests that are not precise, but states it is his belief that KCTCS has retained the information produced for the Hay Consulting Group, or can readily acquire it.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, James M. Baker, Legal Counsel, KCTCS, provided this office with a response to the issues raised in Mr. LeCates's letter. In his response, Mr. Baker, in part, explained:
The Hay Group was selected by KCTCS on October 31, 1997, under a personal services contract to assist in the development of classification, compensation and benefit plans, and a personnel policy manual. A series of meetings took place between KCTCS and Hay Group staffs in the months after the selection was made. At those working meetings, KCTCS would have provided the Hay Group with various records relating to the scope of the contract. However, no record has been maintained that would identify the specific salary and benefit records that were provided to the Hay Group. KCTCS staff that worked with the Hay Group recall that computer printouts prepared by the Personnel Cabinet or Workforce Development Cabinet were provided to the Hay Group in late 1997 or early 1998. KCTCS did not retain a copy of those printouts. KCTCS was not the custodian of those records when the printouts were prepared by the Personnel Cabinet or Workforce Development Cabinet and is not currently the custodian of any of these records.
KCTCS denied the request for the statistical data in Open Records Request No. 99-124 because there are no records that have been retained of the information requested by the Hay Group.
In regards to Open Request No. 99-125, KCTCS advised Mr. LeCates that his request for records relating to "average faculty salaries, " "average salary of staff, excluding Central Office Personnel, " and "average salary of staff" was denied because no records are maintained by KCTCS on average salary information.
We are asked to determine whether the responses of KCTCS were proper. For the reasons that follow, we conclude that the actions of the agency were consistent with the Open Records Act and prior decisions of this office.
In the instant case, KCTCS explained that, although various records and statistical data had been provided to the Hay Group by staff, no record had been maintained which would identify the records so provided and, therefore, denied Mr. LeCates's request. The agency did acknowledge that computer printouts prepared by the Personnel Cabinet or Workforce Development Cabinet were provided to the Hay Group in late 1997 or early 1998, but it did not retain a copy of those printouts.
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
In this case, Mr. LeCate's request for "any statistical data on KCTCS employee salaries and benefits used as reference material by KCTCS administrative staff working with the Hay Consulting Group" does not sufficiently describe particular records to enable the agency to identify and locate those records. This is particularly so, where KCTCS had not maintained a record of the information which had been provided the Hay Group.
Moreover, this office has consistently recognized that a public agency cannot afford a requester access to documents which do not exist or are no longer in its custody. In a long line of opinions issued by this office, we have held that such a request cannot be honored inasmuch as an agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203; 93-ORD-51; 95-ORD-58.
Finally, although a requester is entitled to nonexempt records that a public agency has created or that have come into its custody, and that it has retained, the agency is not obligated to retrieve records, which it could obtain, but which were not in its custody, to satisfy an open records request. 98-ORD-90.
Based on this office's decision in 98-ORD-90, and the authorities cited therein, we conclude that KCTCS was not obligated under the Open Records Act to retrieve documents from the Hay Group.
In 98-ORD-90, this office recognized that a record that is not in the custody of the public agency from which it is sought is generally not a "public record" for purposes of the Open Records Act. On this issue, the Attorney General had earlier 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).
At page 4, 5 of 98-ORD-90, we reasoned:
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 "FOIA 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.
Thus, the Attorney General has recognized that a public agency does not violate the Open Records Act when it declines to retrieve copies of records which could have been obtained, but were not obtained, in order to satisfy an open records request. Accordingly, we conclude KCTCS properly denied the request for copies of the statistical records provided the Hay Group which it did not have or did not retain and was not required to retrieve records to satisfy Mr. LeCates's open records request. 98-ORD-90.
We address, next, KCTCS's response to Mr. LeCates's request for agency records of the average faculty salary, average salary of staff, excluding Central Office Personnel, and average salary of staff. 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, e.g., OAG 76-375; 96-ORD-251. At page 2 of 93-ORD-50, we observed:
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.
As noted above, KCTCS denied this request on the basis that it did not maintain records on average salary information. Thus, we conclude the agency's actions in this regard were consistent with the Open Records Act and prior decisions of this office.
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.