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 Office of the Petroleum Storage Tank Environmental Assurance Fund's (Fund) denial of the February 9, 1999 open records request of Mary Ann Kiwala for "a list of any and all open status OPSTEAF claim numbers which would include your claim number and the claimant's name and address in addition to the certified contractor. " In addition, Ms. Kiwala requested the list to contain the following information:
Any other information should include but not be limited to the UST site number, the obligation amount, the amount which has, already, been paid, and the date of the last action.
I would prefer to have this information sorted by certified contractor.
By letter dated February 11, 1999, David B. Wicker, Legal Counsel for the Fund, denied Ms. Kiwala's request, stating in relevant part:
Your request for records is being denied, as the agency does not keep records in the form you described and is not required by KRS Chapter 61 to "create" records by KRS Chapter 61. Furthermore, the information you request, if compiled for all 3,080 applicants and their 13,900 claims would constitute an unreasonable burden on the agency. Therefore, your request is also being denied pursuant to KRS 61.872(6).
If you wish, the Office will agree to make all its files available for your review at a mutually agreeable time, during the business hours of the office. This would involve making a few files available at a time to you in a manner prescribed in KRS 61.872(3)(a).
In her letter of appeal, Ms. Kiwala argues that her client was requesting a copy of a database already in the Fund's possession and one which had been provided to her client in a previous request. She states that the existing database appears to include all of the required information other than a sorting by certified contractor, which she indicated was a preference rather than a demand. She further argues that the information is presumably already compiled for all 3,080 applicants and the 13,900 claims, as such exact numbers must have been obtained from a database. Since the database can be submitted electronically, it would be no burden on Fund employees to compile and copy the information.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Wicker provided this office with a response to the issues raised in the appeal. In his response, Mr. Wicker states that the Fund did not deny all access to the requested records as it offered to make its files available for Ms. Kiwala's inspection. He reiterated that the Fund denied her request for records in the requested form because the agency's records were not maintained in that format. He further states that his telephone conversation with Ms. Kiwala indicated that she wanted the information on the contracting company, rather than the certified individual. Addressing the issues raised in the appeal, Mr. Wicker, in relevant part, stated:
The Fund does not maintain an electronic record of the employer of the individual certified pursuant to 415 KAR 1:114. To provide this record, the Fund would be required to review each of over 3,000 files, each several inches thick, to find the contract between the applicant and the remediation company. In addition, the remaining records requested, including the certified individual, would have to be culled from each file, as no single record with the requested information exist in either the database or the hard copy files. The request was denied as not maintained in the form requested and unreasonably burdensome on the agency if each file had to be reviewed, with the allowance that the Fund would produce the files for Ms. Kiwala's review. This approach was recently upheld for a similar records request at the Fund. See 99-ORD-1. The appellant cites no authority to support her position that she is entitled to force the agency to conduct the review when the records containing that information have been made available to her.
With the exception of the contracting company, the remaining information requested by the appellant, while voluminous, is contained in the Fund's computer database. It is not, however, maintained in the form requested. All of the information is available in the hard copy files that the Fund offered to produce. Pursuant to KRS Chapter 61, the agency is not required to create a new record or create a compilation of data in the records to satisfy an open records request. See 93-ORD-13, 93-ORD-118. The agency is also not required to expend its resources combing through hard copy records to provide the requested information. The agency is required to make those records available for inspection, as was done in this case.
The question presented in this appeal is whether the Fund violated the Open Records Act in denying Ms. Kiwala's request. For the reasons that follow, we conclude the Fund properly denied the request as the agency did not maintain the requested information in the requested electronic format.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open record request. See, e.g., OAG 76-375; OAG 90-101; 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.
In 96-ORD-133, the Department of Kentucky State Police was asked to produce records of citations issued in three counties for offenses created under KRS 177.305 and KRS 189.150. The Department responded that it did not maintain the records by county or type of offense, but agreed to release the records in their existing format. Again, we affirmed the agency's actions, noting:
The Open Records Act requires no more. It is well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. At page 5 of OAG 91-12, this office observed "What the public gets is what [the agency has] and in the format in which [the agency has] it." The agency may, of course, elect to do so, and under the Open Records Act as amended in 1994, recover its staff costs. KRS 61.874(3). Compare, 95-ORD-82 (holding that the mere deletion of exempt information from an existing database does not result in the creation of a new record). As noted, the State Police have properly exercised their discretion in declining to tailor their records to satisfy [the] request, and have expressed their willingness to allow . . . access [to the records] in their existing format.
96-ORD-133, p. 3.
In the instant appeal, Ms. Kiwala requested a list of certain information from the Fund's claim files. She asked that the information be sorted by certified contractor and provided to her in electronic format. The fund denied the request because it did not maintain a record of the certified contractor in its electronic database. Under these facts, we conclude the Fund's response was proper and consistent with the Open Records Act and prior decisions of this office. The Fund was not required to create an electronic record which contained information about the certified contractors to satisfy Ms. Kiwala's request.
Moreover, the Attorney General has recognized that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. KRS 61.874(3); 96-ORD-75; 96-ORD-133.
In 96-ORD-75, the requester sought access to certain categories of information maintained in the county's occupational license database. The county declined to specially tailor the format of its records to satisfy the requester's specific needs, but released the nonexempt records in the format in which they were regularly maintained. We affirmed the county's actions.
In this case, the Fund advised Ms. Kiwala that information as to certified contractors was contained in its hard copy records. The Fund declined to search through over 3,000 files to locate the information because it would impose an unreasonable burden on the agency to do so, but agreed to make the hard copy files for Ms. Kiwala to conduct her own search for the information she requested during the normal business hours of the office.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In our view, the Fund has met its burden of establishing that compliance with this request would place an undue burden on it. Requiring an agency to search through over 3,000 hard copy claim form files, each several inches thick, in order to locate the name of the certified contractor in each file, as no single record with the requested information exists in either the electronic database or the hard copy files, would constitute such a burden.
The Fund should not be required to search through the claim form files to retrieve the information Ms. Kiwala seeks and segregate them for her inspection. Nevertheless, although a public agency is not required to research public records to provide information to meet the parameters of an open records request, it is required to make available for inspection, during regular business hours, records which might yield the information sought. OAG 90-19.
In OAG 76-375, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. "
As noted above, the Fund has agreed to make the hard copy claim files available for Ms. Kiwala's inspection during regular office hours. Thus, we conclude this response was consistent with the requirements of the Open Records Act.
Mr. Wicker noted in his response provided this office that, with the exception of the contracting company information, the remaining information requested by Ms. Kiwala, while voluminous, was contained in the Fund's computer database and all the information she requested was in the agency's hard copy files.
If nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. 95-ORD-12. Accordingly, Ms. Kiwala would be entitled to inspect the Fund's records in either of its existing formats, but as we held above, the agency would not have to create a new format to meet the parameters of her request.
Although the Fund may have provided similar information in the past, it still maintains the discretion of whether to honor a request for records in a nonstandard format by tailoring its records to meet the parameters of a particular request. Mr. Wicker acknowledged that the Fund had chosen, under KRS 61.874, to provide the information for 69 files in a previous request that Ms. Kiwala's client had made. Mr. Wicker indicated that these files had been identified by claim number by the requester and were for files that the requester was the remediation contractor. In the instant appeal, the Fund explained that the burden which would be placed upon the agency if it were required to search through over 3,000 claim files to retrieve the information Ms. Kiwala seeks in her current request. Mr. Wicker argues, the two requests can hardly be said to be the same in scope or information. We agree. We find no error in the Fund's exercise of its discretion under KRS 61.874(3) and conclude that its denial of Ms. Kiwala's request did not violate the Open Records Act.
Because the foregoing is dispositive of this appeal, we need not address other arguments raised by the Fund in support of its denial of Ms. Kiwala's request.
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.