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 Kentucky Board of Examiners of Psychology (Board) relative to the open records request of Rodney Young violated the Open Records Act. For the reasons that follow, we find that, with the exception of a procedural violation, the Board's actions did not constitute a violation of the Act.
By original letter dated and fax copy sent on February 14, 2003, Mr. Young made a request to inspect and for copies of the following:
1. The name and address of all KY Board of Psychology Board members from 8-1998 to present.
2. The name and address of all staff working in the KY Board of Psychology Office/Office of Occupational Licensing who have worked in the Psychology Board Office since 8-1998.
3. All Board meeting minutes 8-1998 to 9-2002.
In his letter of appeal, Mr. Young advised that the Board had failed to respond to his request within the time frames as specified in KRS 61.880.
By letter dated February 25, 2003, Tracy Dwight Eells, Chair, State Board of Psychology, responded to Mr. Young's request, addressing each numbered request in the order presented, stating:
1. Attached is a current list as of February, 2003, of the names and addresses of all current members as of February, 2003, of the Kentucky Board of Examiners of Psychology. There is no document which lists former Board members from August, 1998, to the present. The Board is not obligated to compile information for you or to create records to satisfy your particular request, but is only obligated to provide documents that are available under the open records laws. 97-ORD-56. The Board is not obligated to honor a request for information. 97-ORD-182.
2. There is no document which lists the name and address of all staff working for the Kentucky Board of Examiners of Psychology or the Division of Occupations and Professions, who have worked in the Psychology Board Office since August, 1998. The Board is not obligated to compile information for you or to create records to satisfy your particular request, but is only obligated to provide documents that are available under the open records laws. 97-ORD-56. The Board is not obligated to honor a request for information. 97-ORD-182. In the spirit of providing reasonable information to you, the current Board Administrator, Wendy Satterly, Division of Occupations and Professions, 911 Leawood Drive, Post Office Box 1360, Frankfort, Kentucky 40602-1360, has been assigned as the Board Administrator since before August, 1998.
3. Enclosed is a copy of all minutes of the Board from August, 1998, to the last minutes approved by the Board, which was for the January, 2003, meeting of the Board.
In consideration of this response, there are no photocopying charges and mailing charges to you as would otherwise be allowed under the Kentucky Open Records Laws.
We are asked to determine whether the actions of the Board violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural violation, the Board's actions did not constitute a violation of the Act.
We address first the procedural issue. KRS 61.880(1) establishes guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The only exceptions to the general rule of agency notification and records access within three business days are found at KRS 61.872(4), (5), and (6). If the person who receives the request does not have "custody or control" of the records, he or she is obligated to notify the requester, and furnish the name and location of the actual custodian. If the record is "in active use, in storage or not otherwise available," the custodian must immediately notify the requester, and designate a place, time, and date for inspection within three days of receipt of the request. If further delay is necessary, the custodian must provide a detailed explanation of the cause of the delay, and designate the earliest possible date, time, and place on which the records will be available for inspection. If the request for records is an unreasonably burdensome one, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records. None of these circumstances appear to have existed in the instant appeal.
Mr. Young faxed his request to the Board on February 14, 2003. The Board issued written response on February 25, 2003. Because the Board did not respond to the request in writing within three business days after its receipt, we find that it violated the procedural requirements of KRS 61.880(1). As we have so often noted, "the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. The Board should review its existing policies to insure that future responses conform to the procedural requirements of the Act.
Addressing the substantive issues, we find no violation of the Open Records Act. In its response to Mr. Young's request, the Board provided him with copies of the requested minutes, and its list of the names and addresses of current Board members as of February, 2003. 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.
Accordingly, since the agency has provided these requested records to Mr. Young, we conclude that the appeal as to these records is moot.
The Board denied Mr. Young's request for the "name and address of all KY Board of Psychology members from 8-1998 to present." In its response, the Board set forth its basis for denial as follows:
There is no document which lists former Board members from August, 1998, to present. The Board is not obligated to compile information for you or to create records to satisfy your particular request, but is only obligated to provide documents that are available under the open records laws. 97-ORD-56. The Board is not obligated to honor a request for information. 97-ORD-182.
The Board also denied Mr. Young's request for the "name and address of all staff working in the KY Board of Psychology Office/Office of Occupational Licensing who have worked in the Psychology Board Office since 8-1998." In explaining this denial, the Board advised there was no document that lists name and address of all staff working in the Psychology Board Office since August, 1998. The basis for this denial was the same as above, i.e., that a public agency is not required to compile a list or create a record to satisfy an open records request or to honor requests for information. The Board, though not required to, did provide Mr. Young with the name and address of the current Administrator and advised that she had been assigned as the Board Administrator since before August, 1998.
We agree with the Board's analysis and find no violation of the Open Records Act. As noted by the Board's response, 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. Accordingly, we conclude that these portions of the Board's response were consistent with the Open Records Act and prior decisions of this office and thus did not constitute a violation of the 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.
Distributed to:
Rodney E. Young, Psy.DDepartment of Juvenile Justice10510 LaGrange Road, Bldg. #101Louisville, KY 40223
Wendy SatterlyBoard AdministratorKY State Board of Examiners of Psychology911 Leawood DriveFrankfort, KY 40601
Mark BrengelmanCounsel for KY State Board of Examiners of PsychologyOffice of the Attorney GeneralCapitol Building, Suite 118700 Capitol AvenueFrankfort, KY 40601-3449