Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Baptist Homes for Children, Inc. violated the Kentucky Open Records Act in denying the request of Norman R. Lemme for specified financial information related to "All Officers, Directors, Trustees and employees" of KBHC for 2001-2003 because it "is not a public entity subject to the [O]pen [R]ecords [A]ct." In the alternative, KBHC contends "the information requested is exempt under 61.878(1)(a)," and, further, does not currently exist in the requested format. Based on the evidence of record, we conclude that KBHC "derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," as required by KRS 61.870(1)(h), and, therefore, is a "public agency" for purposes of the Open Records Act. Because Mr. Lemme's request is properly characterized as a request for information rather than specifically described public records, however, and public agencies are not required to compile information or create a record to satisfy an open records request, it is the decision of this office that KBHC did not violate the Act in declining to create a record responsive to Mr. Lemme's request.
In a letter directed to the Records Custodian at KBHC on June 14, 2004, via certified mail, Mr. Lemme requested "all material set forth in the 'Re:' portion" of his letter which is set forth below in its entirety:
Re[:] Kentucky Baptist Homes for Children, Inc.
Open Records Request
Annual Compensation (including [s]alary, wages, contributions to benefit plans & deferred compensation as well as [e]xpense account and other allowances)
For: All Officers, Directors, Trustees and employees[,] including but not limited to[:] William K. Smithwick, President & CEO, his successor and/or predecessor [and] Barry Mitchell, Vice President for Finance/Administration, his successor and/or predecessor[.]
Upon receiving Mr. Lemme's request, KBHC forwarded it to John O. Sheller, legal counsel for KBHC. In a letter dated June 17, 2004, Mr. Sheller responded on behalf of KBHC, advising Mr. Lemme as follows: "KBHC is a private, non-profit provider of care and counseling for children in need in Kentucky. Because the reach of Kentucky's Open Records Act, KRS 61.870 et. seq., is limited to public agencies, KBHC is not subject to the Act." In his view, the "information in question does not constitute 'public records' in any event." As a "personal and professional courtesy" to Mr. Lemme, however, KBHC responded to his request, clarifying that its response "should not be construed as a concession that KBHC is subject to the Act" or will respond to any future requests. As correctly observed by Mr. Sheller:
Even if KBHC were subject to the Act, the majority of the financial information requested would be protected from disclosure pursuant to KRS 61.878(1)(a). On multiple occasions, the Office of the Attorney General has made clear that personal information with respect to what an individual elects to do with his or her compensation is exempted from disclosure.
00-ORD-203[, p. 2.] (emphasis added). See, also, 98-ORD-99 (same); 96-ORD-274 (same). These decisions make evident that KRS 61.878(1)(a) protects from disclosure information concerning the employees' "contributions to benefit plans & deferred compensation." The other individuals mentioned in your letter, such as Directors, serve as volunteers, so there is no wage and benefit information pertaining to them.
Moreover, your request that KBHC "list each name and title of the person compensated" would be an improper request under the Act, even if directed to a public agency for public records. The Office of the Attorney General has opined that "[t]he public is entitled to inspect public documents and obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to non-exempt records, and not to require the compilation of information." 99-ORD-121[, p. 14]. If the public agency does not "use, possess or retain responsive records, it has no obligation to create responsive documents[.]" 03-ORD-214[, p. 7.] In a recent Open Records Decision, [former] Attorney General Ben Chandler III recognized:
03-ORD-004[, p. 7]. In order to comply with your request, KBHC would be required to compile that information "in a format in which it does not currently exist." KBHC declines your request to create such a document.
Arguing that "[t]ax exempt vendors to the state that exist by our tax dollars should not be secretive and evasive," Mr. Lemme now appeals from this denial of his request. 1 In support of his position, Mr. Lemme correctly observes:
[KBHC], in a report filed with the Cabinet for Health and Family Services for Fiscal Year[s] End[ing] (FYE) August 31, 2002, 2003[,] states at page 8 (copy attached) [that] "approximately 70% of its support for its residential and foster care programs" is received from the Commonwealth of Kentucky. 2
In his view, none of "the information requested falls under any exemption whatsoever, particularly in view of the fact that as a "Tax Exempt" corporation[, KBHC] is required by law to file Federal Forms 990 with the Kentucky Attorney General." 3 To the contrary, the "names, titles, compensation, benefits, expense accounts and allowances of the Officers, [k]ey [e]mployees, Trustees, Directors, and 5 highest [e]mployees should have been on file in the Attorney General's office[,]" and his request "is for that information as well as all other employees."
In a supplemental response received by this office after Mr. Lemme initiated his appeal, Mr. Sheller elaborates on KBHC's position. 4 Turning to "the only issues actually before" this office, Mr. Sheller incorporates by reference KBHC's original response to Mr. Lemme's request. In support of KBHC's denial, Mr. Sheller further argues:
First, KBHC is not a public entity subject to the [O]pen [R]ecords [A]ct. KBHC is not state-funded in the manner contemplated by KRS 61.870(1)(h). Rather, it is simply a state contractor which receives after-the-fact reimbursement from the state for services already rendered. The state does not "fund" KBHC itself; the state pays for a portion of the cost of food, clothing, shelter, education, medical services, recreation, counseling, and other services necessary for the care and upbringing of minor wards of the state. KBHC itself is funded by private donations, which is why it files IRS Form 990 in the first place.
Second, even assuming KBHC was an entity within the definition of KRS 61.870(1)(h), Mr. Lemme's position fails to recognize the limits found in KRS 61.870(2). The information he seeks is exempt under that provision in any event. The Attorney General's Office so held in an analogous situation in 99-ORD-41. Salary and benefits information pertaining to employees is not germane to the purposes for which the state provides reimbursement --room, board, and other expenses for the care of needy children.
Thirdly, even assuming that KRS 61.870(1)(h) applies, and that KRS 61.870(2) does not, the information requested is exempt under KRS 61.878(1)(a). As noted in KBHC's response to Mr. Lemme, the Attorney General's Office has so held on several occasions in the past. In this context, privacy concerns outweigh the [public's] interest in [] disclosure.
Finally, even if none of the foregoing reasons justified the denial of Mr. Lemme's request, the fact that his request would require KBHC to compile data in a format that does not otherwise exist makes it improper. The [O]pen [R]ecords [A]ct is designed to secure extant public records, not to require public entities to create new records.
Upon receiving a copy of this response from KBHC, Mr. Lemme supplemented his response via facsimile directed to this office on June 21, 2004. As observed by Mr. Lemme, KBHC's response "now clearly puts into issue [KRS] 61.870(1)(h) as this corporation annually receives in excess of Ten Million Dollars from the Commonwealth, which, as previously noted, is some 70% of its budget. " In his view, KBHC's "reference to 00-ORD-203 is the fabrication of a 'straw man' with which to battle" because his request "clearly asks for Annual Compensation" as opposed to what is "withheld" from the employee. "The parenthetical phrase is descriptive of 'compensation' to employees and not of employees 'contributions' to others." While Mr. Lemme is correct as to his former contention regarding KRS 61.870(1)(h), his latter contention is contrary to governing precedent as explained below.
Our analysis necessarily begins with the threshold issue of whether KBHC is a "public agency" within the meaning of KRS 61.870(1)(h), pursuant to which a "public agency" is defined as: "Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds[.]" A review of the contract or agreement between the Cabinet and KBHC reveals that KBHC "is a licensed child-caring and/or child-placing agency in accordance with KRS 199.640," which governs "Child Care and Placement Agencies." 5 KRS 199.640(1) provides that "[a]ny facility or agency seeking to conduct, operate, or maintain any child-caring facility or child-placing agency shall first obtain a license to conduct, operate, or maintain the facility or agency from the cabinet. " Pursuant to KRS 199.640(2), the Cabinet shall develop standards which must be met by any such facility or agency, issue licenses to any facility or agency found to meet those standards, and establish and follow procedures designed to ensure that any licensed facility or agency complies with the requirements of the standards on an ongoing basis. Among other delineated responsibilities, the Secretary of the Cabinet "shall promulgate regulations establishing recordkeeping and reporting requirements and standards for licensed agencies and facilities" in accordance with KRS 199.640(5)(b). Under KRS 199.645, the Cabinet is required to "issue and enforce administrative regulations specifically addressing the unique situation of child-caring facilities and child-placing agencies which provide nonsecure care for children during the preadjudication phase of proceedings under Chapter 630."
When viewed in conjunction, these provisions reflect that KBHC is licensed, regulated, and closely monitored by the Cabinet despite being described as a "private child care organization" at times. 6 Although not determinative under KRS 61.870(1)(h), the nature of the parties' relationship lends credibility to Mr. Lemme's position regarding the status of KBHC when viewed in context. 7 See 02-ORD-222. More significantly, however, KBHC does not deny receiving "approximately 70% of its support for its residential and foster care programs 8 from the Commonwealth of Kentucky," which equates to approximately 56% 9 of its overall budget as confirmed by the referenced excerpt from the audit report, arguing instead that "KBHC is not state-funded in the manner contemplated by KRS 61.870(1)(h)."(Emphasis supplied). 10
In 02-ORD-222, this office rejected a similar argument in concluding that Seven Counties Services, Inc. is a public agency for purposes of the Open Records Act. Citing 00-ORD-01 and 93-ORD-90, Seven Counties argued: ". . . It is now settled law, however, that government funds received by private healthcare corporations as direct payment for services rendered to patients are not considered 'state or local funds' when determining whether an entity receives 25% or more of its funds from the public coffers." 02-ORD-222, p. 2. Accordingly, a corporation is a public agency "only if it derives 25% or more of its funding from state and local authorities outside of funds received as direct payment for services rendered to patients." Id., pp. 2, 3. Emphasizing that Medicare and Medicaid payments comprise a significant portion of public funding to private healthcare providers as direct payment for services rendered, Seven Counties further asserted that application of 93-ORD-90 is not restricted to Medicare and Medicaid payments but instead operates to exclude "'all state or federal funds [received by private physicians] as reimbursement for their services[] from the KRS 61.870(1)(h) calculation.'" Id., p. 3. As observed by this office, however, Seven Counties can not be equated to the private healthcare facilities or providers whose status was at issue in 93-ORD-90 (University Diagnostic Imaging Associates, P.S.C.) and 00-ORD-91 (Ephraim McDowell Regional Medical Center). Id., p. 4. Distinguishing Seven Counties, the Attorney General engaged in the following analysis:
Unlike these entities, Seven Counties derives its authority to provide community mental health and mental retardation services from Chapter 210 of the Kentucky Revised Statutes, governing community mental health programs and regional mental health and mental retardation boards. Chapter 210 assigns a significant role to the [Cabinet] in allocating funds to Seven Counties, approving Seven Counties' programs, plan, and budget, and [e]nsuring Seven Counties' compliance with policies and regulations governing its eligibility to receive state grants and other fund allocations [as Chapter 199 does relative to KBHC]. The same cannot be said of the private healthcare providers with which we dealt in 93-ORD-90 and 00-ORD-91. Critical to the open records analysis in the appeal before us is the fact that Seven Counties receives forty-two percent of its total funding under its contract with the [Cabinet] , [as compared to more than 56% here] and an additional seven percent of its total funding in the form of state or local grants. Resolution of this appeal turns on whether, as Seven Counties argues, those funds can be analogized to Medicaid and Medicare funds disbursed to private healthcare providers as payment for services rendered on a fee-for-service basis which this office deemed not to constitute "state or local authority funds" for purposes of determining public agency status under KRS 61.870(1)(h) in 93-ORD-90 and 00-ORD-91. We believe the analogy is flawed.
Id. Likewise, resolution of this appeal turns on whether the funds received by KBHC under its agreement with the Cabinet constitute "state or local authority funds" for purposes of determining its status under KRS 61.870(1)(h). In arguing that "it is simply a state contractor which receives after-the-fact reimbursement from the state for services already rendered," KBHC implicitly relies upon the same flawed premise that the Attorney General rejected in 02-ORD-222. Accordingly, the same outcome necessarily follows.
As evidenced by the cited provisions of Chapter 199, "though it is organized as a private nonprofit corporation as provided for in KRS [199.640], [KBHC] is by no means the same as a private healthcare facility, but is instead a facility operating under a plan and budget approved by the Cabinet and the comprehensive scheme of legislation" codified at Chapter 199. Id., p. 6. Perhaps more importantly, these provisions demonstrate that the funds in question not only satisfy the statutory threshold, but are allocated to KBHC by virtue of its contractual agreement with the Cabinet at fixed rates in accordance with terms prescribed by the Cabinet. Notwithstanding the manner in which KBHC receives the allocated funds, or its characterization of those funds, therefore, the financial support that it derives from the Cabinet can not properly be analogized to Medicaid or Medicare claims submitted by private healthcare providers. "To hold otherwise would be tantamount to elevating form over substance." Id. Because KBHC derives at least 25% of the funds it expends in the Commonwealth from state or local authority funds, approximately 56%, it is a public agency within the meaning of KRS 61.870(1)(h) and, therefore, is subject to the provisions of the Open Records Act. In light of this determination, the question becomes whether the financial information requested by Mr. Lemme is exempt from disclosure.
As long recognized by the Attorney General, "as far as open records are concerned, it is apparently the policy of the Legislature that wherever public funds go, public interest follows." 97-ORD-140, p. 3, citing OAG 76-648, p. 2. In relevant part, KRS 61.870(2) provides: "'Public record' shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority [.]"(Emphasis added). In our view, the "Officers, Directors, Trustees and employees" of KBHC are integral to its operation. As we observed in 97-ORD-140:
The term operate means "to conduct or direct the affairs of (a business, etc.)," and the term operation [means] "a process or action that is part of a series in some work." Webster's New World Dictionary Second College Edition (1974). [To the extent] these employees' salaries are publicly funded, the public has a legitimate interest in records pertaining to their employment such as their position descriptions, salaries, resumes (reflecting relevant prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct. OAG 76-717; OAG 91-41; 96-ORD-86. Conversely, the public cannot legitimately ingress upon matters which are of a purely personal nature, including the employees' home addresses, social security numbers, medical records, and marital status since disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); OAG 79-275; OAG 91-48; 94-ORD-91. "Whatever status the employees of [KBHC] may perceive themselves to hold, it is apparent that if their salaries are paid from public funds the public's interest in monitoring the expenditure of those funds outweighs the employees' expectation of privacy. "
Id., p. 3; 02-ORD-222. Of particular relevance here, the Attorney General has also recognized that materials documenting amounts withheld from the paychecks of public employees "such as taxes, insurance, retirement, and savings" fall within the privacy exception codified at KRS 61.878(1)(a). 00-ORD-203, p. 2; 98-ORD-99; 96-ORD-274 (child support deductions); 96-ORD-258; OAG 88-13.
Consistent with these authorities, KBHC would be required to disclose any existing records which are responsive to Mr. Lemme's request for the salaries or "Annual Compensation" of its officers, directors, and employees, minus the excepted materials, if those salaries are derived from state funds. 11 "Amounts paid from public coffers are perhaps uniquely of public concern. We believe the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc. Specific sums paid in salary from public monies . . . fall within such purview." 97-ORD-65, p. 2, citing OAG 90-30, p. 3. Conversely, any salaries which are not paid with state funds would not be subject to disclosure under KRS 61.870(2).
As consistently recognized by the Attorney General and correctly observed by KBHC, however, a public agency is not obligated to honor a request that is properly characterized as a request for information as opposed to a request for specifically described public records because the "Kentucky Open Records Act addresses requests for records, not requests for information." 02-ORD-88, p. 2. In other words, "the purpose of the Open Records [Act] is not to provide information but to provide access to public records which are not exempt by law." 99-ORD-121, p. 13, citing OAG 79-547, p. 2. Although information will undoubtedly be gleaned from inspecting these records, the public agency's duty in this vein is limited to making public records available for inspection and copying. Id., p. 14. "Public agencies are not required to gather and supply information independent of that which is set forth in public records. " Id. Elaborating upon this fundamental principle, we have observed:
Requests for information, as distinguished from records, are outside 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.
04-ORD-090, p. 9, citing 95-ORD-131, p. 2. Of particular relevance here, "[t]his office has 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 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50." 02-ORD-165, p. 4. To the contrary, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. As framed, Mr. Lemme's request is most accurately described as a request for information. That being the case, KBHC was not obligated to honor his request. Because no records exist which are responsive to Mr. Lemme's request for information and KBHC was not required to compile a list or create a record to satisfy his request, 12 it is the decision of this office that KBHC did not violate the Open Records Act in denying his request on that basis.
A party aggrieved by this decision may appeal it by initiating an 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:
Norman Lemme833 Twelve Oaks DriveMt. Washington, KY 40047
William K. SmithwickPresident and CEOKentucky Baptist Homes for Children, Inc.10200 Linn Station RoadMiddletown, KY 40223
John ShellerSmith and SmithFirst Trust Center, Suite 3005200 South 5th StreetLouisville, KY 40202
Footnotes
Footnotes
1 Although Mr. Lemme had not yet received a response from KBHC at the time he filed the instant appeal, KBHC "timely responded to Mr. Lemme's request on June 17, 2004, by certified mail" and Mr. Lemme received its response on June 19, 2004, as reflected by the return receipt, a copy of which is attached to KBHC's supplemental response.
2 It is the KBHC "Report on Audits of Financial Statements for the years ended August 31, 2003 and 2002" prepared by independent auditors PricewaterhouseCoopers LLP, to which Mr. Lemme refers. A copy of the relevant section from the "Summary of Significant Accounting Policies" section of the "Notes to Financial Statements," which includes the quoted language, is attached to Mr. Lemme's letter of appeal. In the course of performing research for this appeal, the undersigned acquired a copy of the entire report from the Cabinet for review.
3 According to Mr. Lemme, KBHC "has never complied with that law since its enactment in 1994" as evidenced by a response from the Consumer Protection Division of this office to his request for related records, a copy of which is also attached to his letter of appeal. In its supplemental response, however, KBHC disputes this contention, arguing that "Mr. Lemme's accusation fails to account for KBHC's statutory exemption from that provision under KRS 367.660(2)." However, KBHC simultaneously contends that it "is funded by private donations, which is why it files IRS Form 990 in the first place." KBHC further asserts that it "provided Mr. Lemme's agent with a copy of its IRS Form 990 for the last three years prior to the time" of his request for same. Suffice it to say that a dispute of this nature is beyond the scope of the Open Records Act.
4 To begin, Mr. Sheller advises us that "KBHC and Mr. Lemme are adverse parties in a lawsuit now pending in the United States District Court for the Western District of Kentucky." Because Mr. Lemme "is not entitled to conduct discovery in the federal action at this time[,]" he "appears to be attempting to circumvent the prohibition on discovery by securing information through other means." Although Mr. Sheller argues that Mr. Lemme seeks "to defy the mandate of the federal court barring discovery [,]" in so doing he relies upon Federal Rule of Civil Procedure 26(d), albeit implicitly. In relevant part, Fed. R. Civ. P. 26(d) provides that "a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)" with noted exceptions that are not applicable. (Emphasis added).
Even assuming the District Court would deem the information in question relevant for purposes of discovery, an issue which is beyond the scope of this appeal, the Kentucky Court of Appeals previously addressed a parallel issue in Department of Corrections v. Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349, 351 (1996), affirming a Franklin Circuit Court order holding that a reporter for the Courier-Journal was entitled to access documents in an inmate file relating to job assignments and disciplinary reports. In granting the Courier-Journal's motion for summary judgment, the circuit court had held that "KRS 61.878(1) could not be relied upon to deny the Courier-Journal access to the requested documents in [the inmate's] file," Id. at 352, upholding the Attorney General's decision in 94-ORD-19, a copy of which is attached to this decision for the parties' reference. Since the Courier-Journal was not a "party" to the related litigation, the Court concluded that KRS 61.878(1) [which neither KBHC nor Mr. Lemme cite here] was inapplicable. Id. That being the case, the requested records were subject to inspection pursuant to KRS 61.872, despite the fact that the presiding judge had stayed all discovery in the civil action (an element which is lacking here), with the necessary implication being that a "party" would not be entitled to access undiscoverable records via other means such as an Open Records appeal. Id. Although this reasoning is equally applicable in the present context, the record does not contain sufficient evidence upon which to base such a conclusion. Given our resolution of the threshold issue regarding the agency's status and the substantive issues presented, however, further elaboration as to the merits of this secondary argument is unnecessary.
5 With the exception of the excerpt from the audit report attached to Mr. Lemme's letter of appeal, neither party provided this office with documentation in support of their claims regarding the status of KBHC. However, the undersigned did acquire a copy of the FY '02-'04 contract, the spreadsheet of payments made to KBHC for FY '02-'03 and part of '03-'04, and the KBHC's most recently submitted annual audit report from the Cabinet, and has reviewed these documents in order to make an informed decision.
6 Pursuant to the subject agreement, "any child committed to the Cabinet may at any time during the period of commitment be placed in an approved facility of a licensed private child care organization willing to receive the child, upon such conditions as the Cabinet may prescribe [.]"(Emphasis added).
7 Section 2.1 of the parties' contract, entitled Services to Families and Children, lists the various services which KBHC agrees to perform. Particularly relevant for present purposes, KBHC has expressly agreed to "Comply with Open Records Law as defined in KRS Chapter 61" at Section 2.1(U).
8 By the terms of their contract, the Cabinet and KBHC agree to provide: "Therapeutic Foster Care, Foster Care, Residential Treatment, and Independent Living services" at specified facilities. According to the spreadsheet itemizing the disbursement of state funds to KBHC by facility, KBHC received a total of $ 10,535,257. 24 from the Cabinet in FY 02-03 which, as previously indicated, equals approximately 70% of the total funds expended by KBHC "for its residential and foster care programs [KBHC's total "Program expenses" in 2003 were $ 15,428,545.00, as indicated on p. 3 of KBHC's financial statements]."
In May 2004, the Cabinet provided Mr. Lemme with copies of its current contract with KBHC, the Annual Facility Review completed by the Children's Review Program, and the spreadsheet reflecting disbursements made to KBHC by the Cabinet pursuant to the current contract as established in 04-ORD-079, pp. 3, 4.
9 As itemized on page 3 of its financial statements, KBHC's "Total unrestricted operating expenses," or "funds expended by it in the Commonwealth" for 2003, were $ 18,743,165.00. Approximately 56% of that amount, or $ 10, 535,257.24, was derived from state funds as confirmed by the Cabinet.
10 Pursuant to KRS 199.641(2), when the Department for Social Services of the Cabinet places a child in a nonprofit child-caring facility such as KBHC, "the rate of reimbursement for the child's care shall not exceed seventy-five percent (75%) of the average cost in the most comparable residential facility operated by the department." Further, the reimbursement rate "shall be based on actual total facility occupancy for the most recent audited year or ninety percent (90%) of the facility capacity for the audited year, whichever is greater." According to the rate schedule in Attachment A of the parties' agreement, all rates are "fixed, non-negotiable, daily rates" which are "all-inclusive and cover the total cost of care."
11 Pursuant to KRS 61.878(4): "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." When an existing public record contains both excepted and nonexcepted material, the public agency must provide access to the nonexcepted material by either providing a redacted copy of the record or preparing a list containing the nonexcepted information. 96-ORD-258, p. 3, citing OAG 89-97. It is unclear from the record on appeal whether the salaries at issue derive from state funds.
12 An agency discharges its statutory duty under the Open Records Act by affirmatively indicating that no responsive records exist as KBHC did here. 04-ORD-080, p. 12, citing 03-ORD-205, p. 3.