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 the Office of the Attorney General violated the Open Records Act in responding to James Nick Harrison's July 10, 2000, request for information relating to "eavesdropping guidelines." For the reasons that follow, we conclude that the Attorney General did not violate the Open Records Act in his disposition of Mr. Harrison's request.
In his July 10 letter to the Attorney General, Mr. Harrison stated:
I am aware of Kentucky Statute KRS Chapter 526 et seq., but it seems that if there are some situations in which a party may be permitted to eavesdrop or monitor conversations between parties of one party concern then there would be Kentucky Administrative Regulations promulgated to safe-guard the matter and/or equipment involved. [sic.]
Also, if you have the Federal Department's address for telecommunication, I would appreciate it if you could provide that address to me.
Mr. Harrison indicated that his "information . . . request [was] made pursuant to the Kentucky Open Records Act . . . ."
In a response dated July 18, 2000, Todd E. Leatherman, Director of the Attorney General's Consumer Protective Division, denied Mr. Harrison's request. Mr. Leatherman explained that a public agency is not required to perform legal research in order to satisfy an open records request, and that Mr. Harrison's request was, in reality, a request for research as opposed to a request for precisely described public records. We believe that Mr. Leatherman's position is well-taken.
The Attorney General has long recognized that a public agency is not obligated to conduct general research in response to an open records request. For example, in OAG 89-45, we held that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. There, the requester sought access to the addresses of individuals whose names and addresses he had previously obtained. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records. " Recently, we extended this reasoning to a request for statutes and administrative regulations dealing with inmate registrant information. 00-ORD-130. In the latter decision, we concluded that the agency was not obligated to conduct legal research "by locating relevant statutes and regulations pertaining to the subject of the request." 00-ORD-130, p. 4.
As an additional basis for affirming the agency's denial of the open records request for legal materials, in 00-ORD-130 the Attorney General held that legal research or reference materials, such as those found in an inmate law library, do not generally fall within the definition of a "public record" codified at KRS 61.870(2), and therefore are not generally subject to the requirements of the Open Records Act. At pages 2 and 3 of that decision, we observed:
KRS 61.870(2) defines public records as:
In 99-ORD-35 and 99-ORD-181, the Attorney General construed this provision to exclude reference materials located in an inmate law library, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" because they are "in the possession of or retained by a public agency, " we nevertheless concluded that their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " and therefore could not be characterized "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4. We contrasted these library reference materials with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a correctional facility or the Department of Corrections]." Id.; see also, 99-ORD-181.
As we noted in those open records decisions, this view comports with the position adopted by a number of federal courts relative to library reference material in the custody of a public agency. For example, in SDC Development Corp. v. Mathews, 542 F.2d 1116, 1120 (9th Cir. 1976) the Ninth Circuit Court of Appeals held that library materials compiled by the National Library of Medicine did not constitute agency records because they did not "reflect the structure, operation or decision-making functions of the agency . . . ." See also, Baizer v. U.S. Department of Air Force, 887 F.Supp 225 (N.D. Cal. 1995) (computer database of United States Supreme Court decisions is library reference material that sheds no light on agency conduct so as to bring it within the reach of the Freedom of Information Act.) Although these decisions are not controlling, and are distinguishable on the basis of the nonexistence of a definition of the term "record" in the federal law, they suggest the reasonable limits of public access laws when the purpose for which those laws are created is not served by disclosure.
00-ORD-130, p. 2, 3.
Applying this reasonableness standard to the appeal before us, we find that the Attorney General is not required to furnish a requester with legal research and reference materials in his law library in response to an open records request. Although he may voluntarily do so, he has no statutory duty under the Open Records Act to provide records that shed no light on the functions, activities, programs, or operations of his office. Disclosure of such records does not promote the open records related goal of agency accountability. Accordingly, we find no substantive error in Mr. Leatherman's denial of Mr. Harrison'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 proceedings.