Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Office of the Governor in responding to the open records request of Gerald T. Kemper violated the Open Records Act. We conclude that there was no substantive violation of the Act.
By letter dated August 14, 2002, Mr. Kemper made a request for the following records:
(1) Please identify by name and office all persons within your office who were involved with the most recent appointment of the Monterey City Council member.
(2) Please provide copies of all letters, applications, memorandums, orders and otherwise all paperwork generated with the appointment of the Monterey City Council member.
In his letter of appeal, dated August 22, 2002, Mr. Kemper stated that as of that date he had yet to receive a response to his request.
After receipt of Notification of the appeal and a copy of Mr. Kemper's letter of appeal, Michael T. Alexander, Deputy General Counsel, Office of the Governor, provided this office with a copy of a letter, dated August 28, 2002, from him to Mr. Kemper, stating:
I have attached hereto a copy of all records we have in this office for your convenience and immediate review. Please be advised that there are no additional records, non-exempt or otherwise, available for inspection and copying.
We are asked to determine whether the actions of the Office of the Governor violated the Open Records Act. For the reasons that follow, we conclude that with the exception of a procedural deficiency there was no violation of the Act.
KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days. Mr. Kemper's request, dated August 14, 2002, was not responded to until August 28, 2002. This was beyond the time requirements of KRS 61.880(1) and, thus, was a procedural violation of the Open Records Act.
However, the substantive issue in this appeal is moot as the Department has provided Mr. Kemper with the records he requested. 40 KAR 1:030, Section 6, provides:
Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
As noted in the Office of the Governor's letter to Mr. Kemper above, all the agency's records relating to his request were provided to him. Accordingly, since the agency has provided the requested records it does have to Mr. Kemper, this issue is moot and no decision as to it will be rendered.
Finally, in regard to that portion of Mr. Kemper's request asking the agency to "identify by name and office all persons within your office who were involved with the most recent appointment of the Monterey City Council member," we conclude that this is a request for information. The Attorney General has long recognized that a public agency is not obligated to honor a request for information as opposed to a request for specifically described records. "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. Accordingly, we conclude that the agency's response in providing Mr. Kemper with all its records related to his request was proper and there was no substantive violation of the Open Records Act.
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.
Gerald T. Kemper109 N. Thomas StreetOwenton, KY 40359
Michael T. AlexanderDeputy General CounselOffice of the Govenor700 Capitol Avenue, Suite 100Frankfort, KY 40601