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 Lee Adjustment Center (LAC) violated the Open Records Act in its responses to various open records requests by Jeffrey Averitt for production of certain records relating to him and a disciplinary hearing in which he was involved. Because the actions giving rise to Mr. Averitt's two separate appeals raise common questions of law, they are consolidated for purposes of administrative adjudication. For the reasons that follow, we conclude that the responses were consistent in part and inconsistent in part with the requirements of the Act.
On January 3, 2003, Mr. Averitt requested to inspect the following documents concerning:
CAT 6 Item 4 12-8-02 Court Call 12-13-02 (10:55) Seg Tape 112 side B (103 -134) (copy) copy of Court Call Decision, copy appeal from court call decision, (copy of Marandum (sic) Rights where I signed) copy of evidence, copy officer tested evidence, copy of names and date of Kentucky State Police who picked up evidence.
On January 7, 2003, Tracy Brewer, Records Clerk, responding on behalf of LAC, advised:
Your request is being processed. Forwarded to the following people for response: James Combs, Mitchell Brandenburg. Records Dept. TB.
In his letter of appeal, dated January 16, 2003, Mr. Averitt indicated he had yet to receive any of the requested records.
After receipt of Notification of the appeal and a copy of the letter of appeal, Ms. Brewer, by letter dated January 27, 2003, provided this office with a response to the issues raised in the appeal. In her response, Ms. Brewer advised, in part:
On this date, I also made copies of his Disciplinary Report, which included most of the information that he was requesting, included, but not limited to, copy of court call decision, copy of appeal to warden, copy of appeal of disciplinary report, officers statements, investigation and name of officer who conducted the test. His Miranda Rights were read to him. He did not sign any form, therefore I can not make a copy of a document which does not exist. The same principle goes for the request on the names and dates of Ky State Police who picked up the evidence. According to the Open Records Law, requests are to be made of documents only. We are not required to compile information or compile information per OAG 92-9.
I have enclosed copies of the Open Records Request that Mr. Averitt sent to me. He received his original copies on January 21, 2003. The reason for the extended period of time between the initial response and actual date he received his copies was due to the fact that I had not yet received the copy of the adjustment committee hearing tape. Once I received it, he was given his copies the same day, which was January 22, 2003.
On January 22, 2003, Mr. Averitt sent a letter to this office advising that he had initiated a second request to LAC, again seeking copies of chain of custody, investigative report, copy of evidence (pictures) , copy of officer tested evidence (pictures) , copies of officers statement, copy of Marandum rights, copy w/ names and date Ky State Police who picked up evidence.
On January 24, 2003, Ms. Brewer responded to the second request, advising Mr. Averitt:
Most of the information you are requesting is located within your disciplinary report. As to the other information, Open Records requests are to be for copies of documentation located in your file - not to compile information for you or to answer questions per OAG 92-9
On February 4, 2003, Mr. Averitt sent this office a letter advising that he had been provided with a copy of the chain of custody record he had requested, but had not received copies of pictures of evidence, picture of test results, and officers statements.
We are asked to determine whether the actions of LAC relative to the open records request of Mr. Averitt violate the Open records Act. For the reasons that follow, we conclude the agency's responses were consistent in part and inconsistent in part with the Act.
The Open Records Act requires that, if the delay is to be in excess of five working days after an inmate's open records request has been made, the agency is required to immediately notify the requester and provide a detailed explanation of the cause for further delay and give a place, time and earliest date on which the public record will be available for inspection. KRS 61.872(5). In the instant case, the LAC's initial response to Mr. Averitt's first request advised him that his request was being processed and to whom the request was being forwarded, but failed to provide the earliest date on which copies of the requested records would be provided. This portion of the agency's response was procedurally deficient and inconsistent with the requirements of KRS 61.880(1) and KRS 61.872(5). The response should have notified him of the earliest date he could expect to receive the records. 01-ORD-184.
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. The LAC did not violate the Open Records Act by refusing to provide information or compile lists to meet the parameters of Mr. Averitt's requests.
In its responses, LAC indicated it had advised Mr. Averitt that most of the records and information he was seeking was in his Disciplinary Report and had provided him with copies of the requested records. In response, Mr. Averitt contends that he did not receive all the records he asked for. Regarding disagreements of this nature between a requester and a public agency, 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 [the requester] 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.
Moreover, it is unclear whether the agency has certain of the requested records or they do not exist. In this regard, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134 and 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. If LAC does not have a requested record or it does not exist, it should affirmatively so advise Mr. Averitt.
Accordingly, the parties should continue to cooperate to resolve any differences or misunderstandings related to records sought.
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.