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 response of the Personnel Cabinet relative to the open records request submitted to the Cabinet by Anita Primeau, Loren Madden, Charlotte Salyers, and Dorcus Fugett, which requested:
We the undersigned are requesting a list of all EKCC staff who recently received a 5% pay increase, plus their gross salary both before and after the increase.
We request a list of all staff listed as security staff but who work in non-security positions such as Personnel, Programs, Administration, Boiler room, and Dental assistant including the length of time working these positions while being paid as security. Also, a list of their salary before and after the recent $ 1000 pay increase, plus a list of any of these staff that received a 5% increase due to the current position they work.
Daniel F. Egbers, General Counsel, responded to the request on behalf of the Cabinet. In his response, Mr. Egbers stated:
The Personnel Cabinet is unable to comply with your requests. The purpose of the Kentucky Open Records Act is to permit individuals to review and obtain copies of records that are maintained by the custodian of a public agency. The Act does not require that the Custodian of Records conduct research to develop information that may be sought by an individual. The Personnel Cabinet does not maintain any lists that meet the description you have provided. It may be possible to develop some of the data in your first request, however, we would need to know the specific time period that your request covers. If you provide this information, you will need to submit a check in the amount of $ 100.00 dollars, payable to the Kentucky State Treasurer as a down payment against the anticipated cost of the programming that will be necessary to generate the data. The Department for Information Services charges $ 500.00 dollars per hour for programming time, with a minimum of two hours. We are required to pass this cost along to you.
The information you requested in numbers 2-4, above cannot be determined by the Personnel Cabinet. First of all, I am not certain what you mean by a "security staff" list. Second, because your third and fourth requests are contingent upon this designation, we cannot comply with your request. You may wish to refer this matter to the Office of Personnel Management at the Department of Corrections.
We are asked to determine whether the Cabinet's response was in accord with the requirements of the Open Records Act. For the reasons that follow, we conclude that the response was proper and consistent with the Act and prior decisions of this office.
To begin, as Mr. Egbers asserts, the request is for information, rather than a request for reasonably described records. 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.
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.
Moreover, 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; OAG 90-101; 96-ORD-251. The Cabinet's response indicated that it did not maintain any lists that met the descriptions provided in the request. Under this circumstance, the Cabinet is not required to create a list which does not already exist. Accordingly, we conclude that its response was proper and consistent with the Open Records Act and prior decisions of this office.
As an alternative, the Cabinet offered to try "to develop some of the data" in the requesters' first request, but stated that additional information needed to be provided. In addition, the Cabinet indicated that the requesters would need to submit a check in the amount of $ 100.00 to serve as a down payment against the anticipated cost of the programming that would be necessary to generate the requested data. The requesters question this requirement. In 96-ORD-150, this office held that such a charge for programming cost was proper. In that decision, we explained:
The Personnel Cabinet was not obligated to honor [the requester'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 [the requester] 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.
If the Cabinet is requested to provide the information in a specially tailored format, the Cabinet may properly require payment of its actual costs, as well as its staff costs for programming, under KRS 61.874(3). It is the opinion of this office that the Cabinet did not violate the provisions of KRS 61.870 through KRS 61.884 in its handling of this issue.
Finally, Mr. Egbers advised that he was unable to comply with requests in numbers 2-4 because he was uncertain what the requesters meant by a "security staff" list. As noted above, an agency is not require to create a list to meet the parameters of an open records request. An agency is required to respond and provide access to reasonably described records, unless they are otherwise exempt under one of the exceptions to disclosure set forth in KRS 61.878(1). However, in the instant appeal, Mr. Egbers indicated he was unable to discern the nature of the records requested as described. He offered to try to develop some of the data they were seeking, if they would provide more information to clarify their requests.
In his response to the letter of appeal, Mr. Egbers indicated that the requesters had not provided him with any additional information to enable him to determine the precise records they were seeking. The requesters must reasonably describe the public records they wish to inspect in order for the Cabinet to identify, locate, and properly respond to the request. Under these circumstances, we conclude that the actions of the Cabinet did not constitute a violation of the Open Records Act.
In an effort to assist the requesters, Mr. Egbers suggested they may wish to refer their request to the Office of Personnel Management at the Department of Corrections. This was consistent with KRS 61.872(4), which requires that if the person to whom the open records request does not have the custody or control of the requested records, that person should notify the requester and furnish him with the name and location of the custodian where the records may be located.
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.