Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Personnel Cabinet's responses to a series of open records requests by James L. Hood violated the Open Records Act. We conclude they did not.
By letter dated August 16, 2001, Mr. Hood requested:
. . . a listing of all state government computer software designed to produce employment/hiring/ promotional/dismissal statistics by gender and/or race and/or age, along with the programming specifications and/or parameters (such as inclusive dates, offices, etc., in addition to those of age, race, and gender - could also include personnel classifications and groupings). An example would be reports done for civil rights disparity or adverse impact studies.
By letter dated August 21, 2001, Daniel F. Egbers, General Counsel and Custodian of Records, denied Mr. Hood's request, stating, in relevant part:
The request is for information, not public records and as such is not a valid request under the Kentucky Open Records Act. The Act does not require a Custodian of Records to perform research or to create lists from available data. 00-ORD-176.
I am not aware of any agency that would maintain a list such as the one you described. Therefore, I am unable to honor your request. Please feel free to contact me if you have any questions concerning this matter.
On August 28, 2001, Mr. Hood responded to the Cabinet's response stating that he did not need a list prepared. Modifying his original request, he asked for:
. . . a copy of the program descriptions (including parameters of data sets) of all software (making use of personnel data) that has been prepared for the Personnel Cabinet or any other state government unit.
Responding to Mr. Hood's modified request on August 30, 2001, Mr. Egbers advised, in pertinent part:
In your note, you state that you do not need a list but rather request a copy of the program descriptions and data sets of all software prepared for the Personnel Cabinet or any other state government unit. This request does not comply with the requirements of the Open Records Act because it does not specifically describe a particular record. The Attorney General's Office has held on any number of occasions that generic requests for "any and all" records or information are improper and do not require a response.
In his letter of appeal, Mr. Hood challenges the Cabinet's argument that an "any and all" request "automatically relieves an agency of any compliance with an Open Records request." He further asserts that the Open Records Act does not include any reference "to any such phrase as a determining factor in deciding to comply with an Open Records request."
After receipt of Mr. Hood's letter of appeal, Mr. Egbers provided this office with a response to the issues raised in the appeal. In his response, Mr. Egbers advised, in pertinent part:
Mr. Hood did not attempt to revise his request to comply with the specificity requirements of the Open Records Act as interpreted by the Attorney General and instead, filed this appeal. This is not a question of the Personnel Cabinet's inconvenience or burden of identifying software. Before we could begin the process of determining whether the records requested are subject to a K.R.S. 61.878 exception, we submit that it is incumbent on Mr. Hood to use a rifle as opposed to a shotgun in describing the records that he seeks. We further submit that he has not done that with sufficient specificity that we understand what he is talking about. This is not merely technological ignorance on the part of the Custodian of Records, because when we asked our systems management experts if they understood what Mr. Hood wanted, they did not know either.
In summary, it appears that despite his protestations to the contrary, Mr. Hood still wants a "listing" . The Personnel Cabinet's position is that no such "listing" exists and that it is not required to create one. Nor, based on Mr. Hood's third attempt to describe it, do we have a programmer's description of the software's purpose or the parameters of data to be pulled and tabulated. To the best of our knowledge, we do not have software that "...manipulate personnel data describing hirings, promotions, disciplinary actions by age, race, and gender. " Appeal, page 4.
We are asked to determine whether the actions of the Cabinet violated the Open Records Act. For the reasons that follow, we conclude that there was no violation of the Act.
To begin, the Attorney General has recognized that the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 85-45, p. 3. This office has also 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; 99-ORD-165. The Cabinet's responses stated that it did not maintain a list that met the criteria described in Mr. Hood's requests. Under this circumstance, the Cabinet is not required to create a list that does not already exist. Accordingly, we conclude that the Cabinet's response in this regard was proper and consistent with the Open Records Act and prior decisions of this office.
Secondly, we address the Cabinet's response to Mr. Hood's request for a copy of the program descriptions and data sets for the Personnel Cabinet or any other state government unit. The Cabinet denied this request on the basis that it was an "any and all"request for records rather than a request for specifically described records. In addition, the Cabinet further argued, in its supplemental response, that the custodian of records was unable to determine what records Mr. Hood was requesting due to his failure to describe with sufficient specificity the records he was seeking. To bolster this argument, Mr. Egbers advised that the Cabinet had asked its systems management experts if they understood what records Mr. Hood wanted and they did not know either.
As argued by the Cabinet, this office has held that an agency is not required to honor "open-ended-any-and-all-records-that-relate-type of requests." In 99-ORD-14, p. 6, this office recognized that:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
Here, the Cabinet's burden apparently was not so much of an incalculable number, but an inability to understand the precise records sought. In 94-ORD-12, this office articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
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 the instant action, the Cabinet did not deny Mr. Hood's modified request. As noted in its supplemental response, it stated that it was unable to understand what Mr. Hood wanted and could identify no records that met the description set forth in his request. As a precondition to inspection, Mr. Hood must identify with "reasonable particularity" those documents that he wishes to review. OAG 91-58. Because the request failed to identify the records sought with sufficient specificity to enable the agency to identify, locate, and retrieve the records Mr. Hood was requesting, if they exist, the Cabinet's response did not violate the Open Records Act.
In his reply, Mr. Hood asserts that creating software programming descriptions is standard operating procedure. The Cabinet's responses states that it has no records that meet that description. In addressing disputes between parties as to the records sought, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records Mr. Smith asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Accordingly, the parties should consult and mutually cooperate to resolve any differences or misunderstandings related to records sought. Because the foregoing is dispositive of the appeal, we do not address other arguments raised.
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.
James L. Hood188 Timberlane Ct.Nicholasville, KY 40356
Daniel F. EgbersGeneral CounselPersonnel Cabinet200 Fair Oaks LaneFrankfort, KY 40601