Opinion
Opinion By: Gregory D. Stumbo, 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 Hardin County Attorney relative to the open records request of Walter Cornett violated the Open Records Act. For the reasons that follow, we conclude that the agency's response, after receipt of notification of the appeal and a copy of Mr. Cornett's original request, was consistent in part and inconsistent in part with the Act.
In his letter of appeal, dated June 21, 2004, Mr. Cornett stated he faxed his open records request to the Office of the Hardin County Attorney in Elizabethtown on June 10, 2004 and, as of the date of his letter of appeal, he had yet to receive a response. In his request letter, a copy of which was submitted with the letter of appeal, Mr. Cornett requested statistical information as to the number of citizen complaints filed in the last three calendar months in the Hardin County Attorney's office alleging criminal conduct under different factual scenarios and whether the complaints were or were not processed as criminal complaints.
After receipt of Notification of the appeal, a copy of the letter of appeal, and Mr. Cornett's original request, Philip Moore, Assistant Hardin County Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Moore advised:
1. After consulting with Mr. Howard's administrative assistant, Robin Todd, it appears that this office never received the request from Mr. Cornett. Therefore, it is our position that the Hardin County Attorney's Office has not failed to respond to the Open Records Request.
2. Having now received a copy of Mr. Cornett's request attached to the Attorney General's request for a response to the Open Records Appeal, this office responds as follows:
We are asked to determine whether the actions of the Office of the Hardin County Attorney violated the Open Records Act. For the reasons that follow, we find that the agency's response, after receipt of notification of the appeal and a copy of Mr. Cornett's original request, was only partially responsive to the request.
We first address Mr. Cornett's complaint that the agency failed to respond to his original request which he indicated in his letter of appeal was faxed to the agency on June 10, 2004. In his response, Mr. Moore advised that he had consulted with the County Attorney's administrative assistant and it appeared that the request was not received. 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.
Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Cornett's open records request. See 03-ORD-061.
Addressing the substantive response of the agency denying Mr. Cornett's request, we find that the response was consistent in part and inconsistent in part with the Open Records Act.
KRS 61.878(2) provides:
No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
If statistical information responsive to Mr. Cornett's request has been compiled, those statistics should be released to him upon prepayment of reasonable copying and postage charges. 03-ORD-200. If no responsive statistical information exists, the agency should so advise Mr. Cornett in writing.
However, if no record of the statistical information requested by Mr. Cornett exists, the county attorney is not required to create such a record. 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."
Pursuant to KRS 61.878(1)(h), "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action." Under KRS 61.878(1)(h) , the county attorney could properly deny Mr. Cornett's request for access to records and information pertaining to criminal investigations and litigation, such as criminal complaints, even though they may collectively contain the information he is seeking. See, 02-ORD-112.
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 proceedings.