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 Kentucky State Fair Board violated the Open Records Act in the disposition of Joan Cash's April 3, 2006, request for "a listing of the hourly wage and pay rate for each person who is or has been employed as a tollbooth gate attendant at the Kentucky Fair and Exposition Center, 937 Phillips Lane, Louisville KY for the year 2005 and the year 2006 from January 1 to April 3." For the reasons that follow, if a listing exists, it should be made available for Ms. Cash's inspection. If none exists, then the Kentucky State Fair Board's response, which provided the requester with a record containing the information she requested, complied with and did not violate the Open Records Act. Because "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act," 04-ORD-216, p. 3., we do not address Ms. Cash's objections to "omissions and discrepancies" in the records disclosed. 05-ORD-236.
By letter dated April 11, 2006, Ms. Cash initiated the instant appeal stating that as of that date she had received no response from the Board.
After receipt of notification of the appeal and a copy of the letter of appeal, Ellen F. Benzing, General Counsel, Kentucky Commerce Cabinet, provided this office with a response to the issues raised in the appeal. In her response, she advised that Ms. Cash's April 3, 2006, request had been marked received on April 4, 2006, and provided a copy of the Board's response dated April 7, 2006, including a copy of the responsive record sent to Ms. Cash. The Board's April 7, 2006, response acknowledged receipt of the request and advised that the Board was providing a copy of a document responsive to her request and enclosed that record with the response. The responsive record provided to Ms. Cash consists of a ten page report listing employees in alphabetical order, including toll gate attendants, ticket sellers, ticket takers, gate chiefs, auditors, supervisors, runners, and others, and setting forth the hourly wage and pay rate for each employee. The report indicates that it was generated on April 5, 2006.
On May 1, 2006, Ms. Cash provided this office with a reply to the Board's response asserting that the responsive record sent to her was "too broad" to comply with her request. She explained the record sent her included "the names, hourly wage and pay rate for all persons who have worked at the KY Fair and Exposition Center in some petty cash payroll capacity in 2005 and 2006 through April 2006." She stated that she had requested a listing of the hourly wage and pay rate for each person employed as a tollbooth gate attendant, a much smaller group of individuals. As an example of what she was requesting, Ms. Cash attached a copy of a payroll document that she indicated was previously generated by the Center's payroll department listing only toll gate attendants. In addition, Ms. Cash asserted that the records provided by the Board was not a complete listing and contained some omissions and discrepancies.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open record request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251; At page 2 of 93-ORS-50, we observed:
The Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, "[W]hat the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." OAG 91-12, p. 5.
In 02-ORD-148, an appeal involving the same parties in the instant appeal, the Kentucky Fair and Exposition Center (KFEC) asserted that no list of the hourly wage and pay rate for tollbooth gate attendants existed for the year 2002 and under the Open Records Act it was not required to create one. This office found that the agency properly denied the request for such a list, as none existed. However, because the KFEC indicated that the requested information relative to the 2002 pay rates exists in the agency's database. We concluded that the KFEC must make the database available for Ms. Cash's inspection with appropriate personal information, such as social security numbers and home addresses, redacted as required by 61.878(4), so that she might extract the nonexcepted information she seeks.
In the instant appeal, the Board would not be required to create a list if none exists. Although the Board may have provided a listing of the hourly wage and pay rate for each person employed as a tollbooth gate attendant in the past, it still maintains the discretion of whether to honor a request for records in a nonstandard format by tailoring its records to meet the parameters of a particular request. 99-ORD-68. It is unclear in the record before us whether such a current list exists for the timeframe of Ms. Cash's request. If such a listing exists, it should be made available for Ms. Cash's inspection. If none exists, then the Board complied with and did not violate the Open Records Act by providing Ms. Cash with a copy of its database containing the information she is seeking.
As noted above, Ms. Cash asserted that the report provided by the Board was not a complete listing and contained some omissions and discrepancies. In 05-ORD-236, another appeal involving the same parties to the instant appeal, we addressed a similar claim of discrepancies in the records, stating:
Nevertheless, this office has consistently refused to adjudicate disputes concerning "discrepancies" in the records produced in response to an open records request. As noted above, at page 3 of 04-ORD-216 we recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." There a requester questioned the validity of invoices produced in response to a request, and the Attorney General advised that the relief sought was unavailable under the Act. See also, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General refused to consider this issue); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to open records request and Attorney General characterized the question as one that did not arise under the Open Records Act) ; 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General); 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in an open records appeal). Here, as in the cited decisions, we decline Ms. Cash's invitation to assign error under the Open Records Act for "discrepancies" in the record produced for her inspection. If evidence of willful concealment of more accurate or current records exists, Ms. Cash may wish to consider her options under KRS 61.991(2)(a). Again, the Attorney General's Office is not the appropriate forum for resolution of such issues.
Accordingly, as in 05-ORD-236, because "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act," 04-ORD-216, p. 3., we do not address Ms. Cash's objections to "omissions and discrepancies" in the records disclosed 05-ORD-236.
Finally, we address the issue of the timeliness of the Board's response. In 96-ORD-207, this office addressed the issue of computation of time for a timely response under the Act. In that decision, we stated:
The computation of time statute, KRS 446.030 (1) (a), which would be applicable to time requirements of the Open Records Act, reads as follows:
The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, a legal holiday, or a day on which the public office in which a document is required to be filed is actually and legally closed, in which event the period runs until the end of the next day which is not one of the days just mentioned. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.
In the instant case, Board advised the open records request was received on Tuesday April 4, 2006. This would be the date or day of the act after which the three-day period of time begins to run. Thus, Wednesday April 5, 2006, would be day one. Thursday, April 6, 2006, would be day two. Friday, April 7, 2006, would be day three. It is unclear on what day the response was actually mailed. If the Board mailed the response on April 7, 2006, it was timely mailed within three business days after receipt of the request, as required by KRS 61.880(1). 02-ORD-81. Nevertheless, we encourage the agency to make every reasonable effort to ensure that its open records requests are received and processed in a timely manner in accordance with the requirements of KRS 61.880(1). 02-ORD-148.
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:
Joan Cash10328 Keystone TraceLouisville, KY 40223
Harold WorkmanPresident and CEOKentucky State Fair BoardP.O. Box 37130Louisville, KY 40233-7130
Ellen BenzingExecutive DirectorOffice of Legal AffairsKentucky Commerce CabinetCapitol Plaza Tower, 24th Floor500 Mero StreetFrankfort, KY 40601