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 Jefferson County Attorney's Child Support Division violated the Open Records Act in the disposition of Joye Estes's undated request 1 for "information regarding the process for gaining or increasing child support. " For the reasons that follow, we find that although its original response was deficient, the Division subsequently cured this deficiency by advising Ms. Estes that it was not obligated to honor her request.
In an undated letter, Ms. Estes requested "an open records [sic] from the Child Support Division" for information relating to, for example:
The procedures and criteria for filing a general affidavit requesting child support or an increase in child support, including but not limited to:
The procedures and criteria for filing an order of support including but not limited to:
Ms. Estes requested four additional "procedures and criteria" relating to practice before the courts in child support matters, and two additional "proof of procedures" relating to fraudulent attempts to gain or increase child support and the relief available to "a victim of a fraudulent attempt to gain . . . or increase child support. "
In an unsigned response dated August 23, 2002, the Division referenced Ms. Estes' case and advised her that "[w]hen corresponding you must include your case number to receive a response." The Division further advised:
Comments: Please be advised there is a web site that you may go into to review the Kentucky Guidelines. The web site is www.law.state.ky.us/childsupport/support.htm. If you do not have a computer, you may visit your nearest library.
On August 27, 2002, Ms. Estes initiated this appeal objecting to the Division's insistence that she furnish her case number before any information would be released to her, the Division's delay in responding to her request, and the inadequacy of that response.
Two days later, George Boehnlein, Director of the Child Support Division of the Jefferson County Attorney's Office, issued a supplemental response to Ms. Estes' request. Mr. Boehnlein characterized her request as "one for information on how this office enforces state child support laws rather than a request for specific identifiable records." Relying on 99-ORD-17 and 00-ORD-7, he denied the request asserting that the Division was "not required to gather and supply information independent of that which is set forth in public records. " Nevertheless, Mr. Boehnlein referred Ms. Estes to the provisions of the Kentucky Revised Statutes governing child support. Continuing, he observed:
The County Attorney's Office performs child collection duties as the legal representative of the state Cabinet for Families and Children. Thus, all "procedures and criteria" for how this office performs its child support collection duties are governed by the Kentucky Revised Statutes and all "procedures and criteria" for court pleadings or "filings", as you phrased it, are governed by the Kentucky Rules of Civil Procedure. If you wish to review the statutes and rules, they are available at the Louisville and Jefferson County Law Library located on the fourth floor of the Old Jail Building, 514 West Liberty Street.
Ms. Estes later furnished this office with a copy of Mr. Boehnlein's letter, noting that "the information has been helpful in answering some of my questions, but not all of them," and complaining that "nothing in the Kentucky Revised Statutes or the Kentucky Rules of Civil Procedures addresses the request I made for proof of procedures . . . ."
In correspondence directed to this office following commencement of Ms. Estes' appeal, Assistant Jefferson County Attorney N. Scott Lilly amplified on the Division's position. Acknowledging that the Division's response was untimely, he explained that Child Support staff erroneously treated her request as an inquiry into the status of her own case and failed to immediately forward the request to Mr. Boehnlein. Mr. Lilly reaffirmed Mr. Boehnlein's argument that "Ms. Estes' open records request is deficient since it essentially seeks information on how child support matters are handled by this office rather than identifying particular documents which could be produced."
In order to facilitate our review of the issues on appeal, and pursuant to KRS 61.880(2)(c), this office requested additional information from the Child Support Division in a letter dated September 26, 2002. Specifically, we asked whether the Division maintains a procedure manual for use by prosecutors and staff, and if so, whether it was the Division's position that the manual was exempt. Mr. Lilly responded by letter dated October 3, 2002, and advised that the Division:
does not "maintain" a procedure manual, [but] . . .adhere[s] to the Kentucky Cabinet for Families and Children, Division of Child Support, policies which [it] obtains on line at cfc.state.ky.us/ dcspolicies which . . . contain some forms, policies and guidelines that are followed by all county attorneys who contract with the Cabinet . . . . [N]one of [our prosecutors] maintain a complete hard copy of any significant portion of the Cabinet's available policies or forms.
On this basis, he asserted that the Division does not maintain a manual, and the website from which it extracts forms, policies, and guidelines is available for public inspection. In closing, Mr. Lilly reiterated that the Division "perceived Ms. Estes' open records request as a request for information rather than documents or records," that the requested information related to "very specific legal proceedings that are covered by the Kentucky Revised Statutes or the Kentucky Rules of Civil Procedure rather than the Cabinet's policies and materials," and that the Division therefore did not believe the Cabinet's website was relevant to her request."
We will not belabor the issue of the Child Support Division's procedural noncompliance with the Open Records Act, the Jefferson County Attorney's Child Support Division having acknowledged its failure to issue a written response to Ms. Estes' request within three business days as required by KRS 61.880(1). Mr. Lilly has indicated that measures have been implemented to insure that this error will not recur, and we trust that those measures include directions to employees to refrain from demanding that an open records applicant furnish his or her child support case number. See KRS 61.872(2) (restricting the information which the agency may require from a requester to a written description of the records, his or her signature, and his or her name printed legibly).
Turning to the substantive issue in this appeal, we find that although it is not altogether clear that Ms. Estes improperly framed her open records request as a request for information, we agree with the Child Support Division that the Division was not obligated to conduct legal research in order to locate records that contain the procedures and criteria, and proof of procedures, she requested. By the mere insertion of the word "written" before "procedures and criteria" and "proof of procedures," Ms. Estes' request could reasonably be characterized as a properly framed open records request. Because her request was otherwise flawed, and thereby relieved the Division of the duty to produce responsive records, we will not dwell on this issue either.
In OAG 89-45, this office 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 89-45, p. 3, citing OAG 79-547 and OAG 83-333. There the requester sought the addresses of individuals whose names he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records, " noting that the public agency from which the records were sought "had no compiled record corresponding to the request." See also 95-ORD-27 and 96-ORD-53.
For purposes of contrast, we examine 94-ORD-121. In that decision the requester sought copies of "'rules' promulgated by the Department for Libraries and Archives concerning the parameters within which the University of Kentucky Records Management Program must operate in its creation, maintenance, storage and servicing of records . . . ." According to the University's own Records Retention and Disposal Schedule, records containing these "rules" were required to be compiled and separately maintained in a designated area of the agency. Thus, the records had already been compiled for purposes of satisfying the agency's records retention obligation. No additional research needed to be performed. The records had only to be retrieved from the designated area, and produced for inspection. We concurred with the requester in his view that the agency had improperly equated an obligatory search with nonobligatory research. 94-ORD-121, p. 7.
In the appeal before us, Ms. Estes requested that the Child Support Division produce for inspection procedures and criteria, and proof of procedures, "regarding the process for gaining or increasing child support, " and various legal issues related thereto. The Division has amply demonstrated that it has "no compiled record corresponding to the request," OAG 89-45, p. 3, and identified the various sources from which responsive records might be extracted. To require the Division to compile such a record to conform to the broad parameters of Ms. Estes' request would be tantamount to requiring the Division to conduct legal research on her behalf. Accordingly, we find that hers was "a request for research to be performed rather than for inspection of reasonably identified public records, " id., and that the Division was not obligated to honor that request. Aside from the procedural violation which it acknowledged, we find no error in the Jefferson County Attorney's Child Support Division's disposition of Ms. Estes' 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.
Joye Estes8506 Missionary Ct.Louisville, KY 40291
N. Scott LillyOffice of the Jefferson County Attorney531 Court Place, Ste. 1001Louisville, KY 40202
George Boehnlein, DirectorJefferson County AttorneyChild Support Division315 West Muhammad Ali Blvd.Louisville, KY 40202
Footnotes
Footnotes
1 Ms. Estes states that her request was mailed on August 12, 2002.
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