Request By:
John Britton
5155 Ironworks Road
Winchester, KY 40391Jennifer A. Jones
Legal Counsel
Kentucky Retirement Systems
Perimeter Park West
1260 Louisville Road
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky Retirement Systems violated the Kentucky Open Records Act in denying the request of John Britton "to review and evaluate certain records which are produced by, processed, and recorded" in KRS offices because Mr. Britton requested "statistical information" rather than existing public records. Because Mr. Britton's request is properly characterized as a request for information rather than specifically described public records, and public agencies such as KRS are not obligated to create records for the purpose of satisfying a request, nor can public agencies honor a request for records which do not exist, KRS responded in a manner consistent with the Open Records Act. However, KRS must make a good faith effort to provide Mr. Britton with access to those existing records in its custody which might yield the information requested in order to fully discharge its duty under the Open Records Act; nothing more, nothing less.
By letter dated May 21, 2005, Mr. Britton requested to review four categories of information. More specifically, Mr. Britton requested:
1. The number of disability claims filed with Ky. Retirement Systems for the past five years.
2. The disposition of all cases which were filed.
3. The number of cases appealed to Franklin Circuit Court.
4. The number of cases appealed to The Ky. Court of Appeals.
In closing, Mr. Britton acknowledged that "individual names, addresses, etc. may be privileged and not available."
Citing the definition of "public record" codified at KRS 61.870(2), Jennifer A. Jones, Legal Counsel, denied Mr. Britton's request in a written response dated May 26, 2005. As correctly observed by KRS, Mr. Britton "requested statistical information, not a public record. " In addition, Ms. Jones advised Mr. Britton that KRS is statutorily prohibited from releasing any information regarding a member's account pursuant to KRS 61.661(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Questioning how his request could be construed as "requesting anything prohibited, restricted, or confidential, " and arguing that neither KRS 61.878(1)(l) nor KRS 61.661(1) "are relevant to this requisition," Mr. Britton initiated this appeal by letter dated June 2, 2005.
Upon receiving notification of Mr. Britton's appeal from this office, Ms. Jones elaborated upon the position of KRS. As observed by Ms. Jones, "the Open Records Act does not require an agency to create or alter documents, which cannot otherwise be produced by the agency or which do not otherwise exist." Honoring Mr. Britton's request would required KRS to "track each Form 6000 on which the member applied for disability filed in the past five years through its entire administrative and appellate process." KRS does not maintain statistics in that manner. In addition, KRS "did not reject Mr. Britton's request due to confidentiality." According to Ms. Jones, KRS "routinely advises people making requests of the confidential nature of" its records. In closing, Ms. Jones advises this office that KRS "is willing to cooperate with Mr. Britton and produce any public record that is not prohibited or restricted or otherwise made confidential by state or federal law." Nothing more is required. 1
In our view, the analysis contained in 05-ORD-006 is directly on point; a copy of that decision is attached hereto and incorporated by reference. "'While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought.'" 05-ORD-006, p. 8, citing 97-ORD-6, p. 5 (original emphasis). Accordingly, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through the public records on his own time and under the restrictions and safeguards of the public agency." 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Absent a properly invoked statutory exception authorizing nondisclosure of the records or portions thereof containing the information at issue, KRS must provide Mr. Britton with access to the relevant records, assuming any responsive records exist, so that he may extract the information himself. In light of this determination, further consideration of the secondary arguments raised by KRS is unnecessary.
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.
Footnotes
Footnotes
1 In reply, Mr. Britton maintains that his request "is both reasonable and within the existing parameters of the Open Records Act. " According to Mr. Britton, it is "ludicrous for [KRS] to claim that the number of retirement case denials is not a record." Such an argument "is nothing more than semantic immunity" in Mr. Britton's view.
When an agency denies the existence of requested records, "it is not incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. To the contrary, the role of the Attorney General in adjudicating such disputes is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.