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 Transportation Cabinet relative to the open records request of Art Anderson violated the Open Records Act. For the reasons that follow, we conclude the actions of the Cabinet did not violate the Act.
In his letter of appeal, dated October 25, 2002, Mr. Anderson indicated that he had submitted an open records request to the Transportation Cabinet on September 17, 2002, and had received no response to his request. He enclosed a copy of his September 17th letter, which requested the following records and information:
1. The number of vehicles that traveled East beyond the Edmonton (KY) toll plaza on the Cumberland Parkway on the 26th day of August, 2002, between the hours of 8:00 A.M. and 9:00 A.M.
2. The number of vehicles that traveled East beyond the Edmonton (KY) toll plaza on the Cumberland Parkway on the 2nd day of September, 2002, between the hours of 8:00 A.M. and 9:00 A.M.
3. A list of all grants the Kentucky Transportation has received from the federal government within the last sixty (60) days and the purpose of those grants.
4. The requirements that the Transportation Cabinet must meet in order to qualify for all grants referenced in numbered paragraph three (3) above.
I understand that there is a charge for the reproduction of records, therefore, I am enclosing one ($ 1.00) dollar cash and do not request any refund of overpayment.
After receipt of Notification of the appeal with copies of the letter of appeal and Mr. Anderson's request letter of September 17, 2002, Patricia K. Foley, General Counsel, provided this office with a response, on behalf of the Cabinet, to the issues raised in the appeal. In her response, Ms. Foley advised:
This is to acknowledge receipt of your correspondence to the Transportation Cabinet notifying us of the appeal of Mr. Art Anderson as it relates to his Open Records request.
Unfortunately, the Cabinet did not receive Mr. Anderson's Open Records Request, which he suggests was sent to the Cabinet on or about September 17, 2002. Nor might I add, did we receive his $ 1.00 as payment for any records. Please note the address to which he sent the request. That address is not the Transportation Cabinet. We do not have a P.O. Box, nor is our zip code 40602-2014.
Notwithstanding, the Cabinet is in the process of collecting the requested information in request 1 and 2.
Request # 3 is hereby denied by this agency based upon the fact that the request would require the agency to create a list which it does not have. Further, the request does not indicate with sufficient particularity the documents which are being sought. Due to the broad definition of "grant" it would be difficult if not impossible to locate documents responsive.
In regards to request # 4 the Cabinet denies the request on the basis that it requests the Cabinet to state requirements and does not request documents. The Cabinet will supply all the requisite documents for any grant or grants that are identified including application requirements if they are in the file.
We are asked to determine whether the actions of the Cabinet relative to Mr. Anderson's request violated the Open Records Act. For the reasons that follow, we conclude that Cabinet's actions present no violation of the Act.
We address first Mr. Anderson's claim that the agency failed to respond to his September 17, 2002, request. As indicated in its response to the letter of appeal, the agency never received a copy of the request until after receipt of the Notification of the appeal and letter of appeal. The Cabinet opined that its failure to receive Mr. Anderson's request was probably due to the fact that it was not correctly addressed to the Cabinet. In this regard, we conclude that failure of the Cabinet to timely respond to Mr. Anderson's request was not due to any actions of the agency, but due to his failure to correctly address his request. We find no procedural violation on this issue.
We address next the substantive issue, the Cabinet's response to the request. We do note that some of the requests were for information, rather than for specific records, and for lists of information. An agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Moreover, 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; 96-ORD-251. Nevertheless, the Cabinet has agreed to provide Mr. Anderson with information requested in requests # 1 and # 2. Accordingly, we conclude that these portions of the response went beyond that required by the Open Records Act and thus would not constitute a violation.
The Cabinet denied request # 3 for a list of all grants the Cabinet had received from the federal government within the last sixty (60) days and the purpose of those grants. The Cabinet advised Mr. Anderson that it did not have such a list. As noted above, a public agency is not obligated to compile a list or create a record to satisfy an open records request. This denial was proper and did not constitute a violation of the Open Record Act. 96-ORD-251.
The Cabinet denied request # 4 on the basis that it was a request for information and not for specifically identified documents. The Cabinet did agree to provide copies of grant records that are identified, including application requirements. We find this response was also proper and not a 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.
Art AndersonP.O. Box 347Nancy, KY 42544
Ed RobertsTransportation CabinetState Office BuildingFrankfort, KY 40601
Patricia K. FoleyGeneral CounselTransportation CabinetState Office BuildingFrankfort, KY 40601