07-ORD-088 | KOGC

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 Floyd County Board of Education violated the Kentucky Open Records Act in the disposition of John Hicks' request for a record "on how much money the Floyd County School Board has spent on my lawsuits alone since October of [1999]" and a "total on all lawsuits that you spent money on dating back to when you first began litigating people." Although the Board cannot produce for inspection or copying records which do not exist, nor is the Board statutorily required to compile information or create a record to satisfy a request, as consistently recognized by this office, the Board is required to make available for inspection, during regular business hours, any nonexempt records which might contain the information requested. To the extent Mr. Hicks is questioning the content of those records which the Board provided him with an opportunity to review, such issues are not justiciable in this forum; the Attorney General has consistently recognized that "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. Conversely, in the event any records do exist which are responsive to Mr. Hicks' request, aside from those already provided, the Board must provide Mr. Hicks with copies, regardless of whether those records are currently in the custody of the Board, its liability insurance provider, or another private agency, as the nature and purpose of the records, not their location, determines their status as public records.

By letter directed to Paul W. Fanning, Superintendent, on December 7, 2006, Mr. Hicks submitted the aforementioned request; Mr. Hicks further asked the following questions:

1) Did you spend one million?

2) Did you spend two million?

"Look at the record[s] that shows how much you spent on my lawsuits since October of [1999] and write down the total amount and send that to me." After viewing the records "from [2003] to the present [2006], Mr. Hicks further alleged "there were a lot of records left out through this period." Finally, Mr. Hicks argued "this was not what [he] requested"; rather, Mr. Hicks requested those records dating back to October 4, 1999.

On the same date, Superintendent Fanning responded via certified mail, advising Mr. Hicks that his request would be reviewed; however, "since the information requested may be located in more than one location, it could require seven (7) to ten (10) work days to provide information per our interpretation of legal standards." On March 13, 2007, Mr. Hicks submitted a "Citizen Complaint Form" to Judi M. Calhoun of the Prestonsburg Satellite Office (who subsequently forwarded his letter to Frankfort), noting that he "[r]ecently" had requested from Superintendent Fanning "a record on how much money was spent on lawsuits since [1999]." According to Mr. Hicks, Superintendent Fanning allowed him to "view some records from [2003] to the present, (which was not accurate), but refused to let [him] view records back to [1999], not back to [2003]."

Upon receiving notification of Mr. Hicks' appeal from this office, Jonathan C. Shaw, of Porter, Schmitt, Banks & Baldwin, responded on behalf of the Board/Superintendent. Enclosed with his letter of response "are copies of the actual Open Records requests received from Mr. Hicks dated November 30, 2006; December 7, 2006; January 2, 2007 and March 6, 2007." Mr. Shaw also enclosed "copies of the response (cover letter only) to each dated December 4, 2006; December 7, 2006; December 15, 2006; January 3, 2007 and March 7, 2007." 1 As correctly observed by Mr. Shaw, a review of the materials provided makes it clear that "what Mr. Hicks claims as his December 7, 2006 request is not what was received by the [Board] on that date (see request dated March 6, 2007 attached)." 2

Contrary to Mr. Hicks' allegations, the Board "did not deny his request." As demonstrated by the record, Superintendent Fanning "provided access to information ( See attached January 3, 2007 correspondence from Dr. Paul W. Fanning ) and had initially provided hundreds of pages of copies of information ( See attached December 15, 2006 correspondence from Dr. Paul W. Fanning )." Although Mr. Hicks' "repeated requests appear unreasonable and geared towards the harassment and disruption of the essential functions of the [Board], the Board has pacified Mr. Hicks and attempted to comply with his numerous requests by providing both copies of information requested and an opportunity to review the records kept by the Board. See KRS 61.872(6)." 3 In addressing the substance of Mr. Hicks' request for "a record on how much money was spent on lawsuits since 1999," Mr. Shaw asserts that no such document exists. Having summarized the request attached to Mr. Hicks' complaint, which is "incorrectly dated" December 7, 2007, Mr. Shaw correctly argues:

As an initial matter, a public agency is not obligated to create records to satisfy a particular open records request. See, 02-ORD-112, 97-ORD-56, 96-ORD-139, 95-ORD-48. Further, a public agency is not obligated to honor a request for information, as opposed to a request for specifically described records. See, 02-ORD-213, 02-ORD-175, 99-ORD-71, 97-ORD-182, 96-ORD-150, 96-ORD-146, 96-ORD-53, 95-ORD-150, 95-ORD-131. As is clearly indicated by the complaint and attached request, Mr. Hicks is requesting that Dr. Fanning " look at the record[s] that shows how much you spent on my lawsuits since October of 99 and write down the total amount and send that to me" and "after you give me a total amount of money spent on my lawsuits, give me a total on all lawsuits that you spent money on dating back to when you first began litigating people."

The [Board] carries liability insurance that provides coverage for the cost of defending matters and liability associated with any successful suit. The [Board] does not maintain information or data " on how much money was spent on lawsuits since 1999. " What information the Board had possession of, Mr. Hicks was granted access to.

Summarizing his previous arguments relative to KRS 61.872(6) and the non-specificity of Mr. Hicks' request(s), Mr. Shaw notes, in conclusion, "the [Board] has made a good faith attempt to provide Mr. Hicks with the information he has requested." 4 Citing 02-ORD-112, 97-ORD-56, 96-ORD-139, and 95-ORD-48, Mr. Shaw reiterates that a public agency such as the Board "is under no obligation to create records to comply with Mr. Hicks' request." Based upon the following, this office affirms the response(s) of the Board assuming that no records exist, as opposed to none currently being in the actual possession of the Board; however, this office respectfully disagrees with Mr. Shaw's characterization as to Mr. Hicks' first request.

Although the Board correctly asserts that a public agency is not statutorily required to honor a request for information, Mr. Hicks' request for any records documenting the amount of money "spent on my lawsuits alone since October of [1999]" is not properly so characterized, whereas Mr. Hicks' secondary request for "a total on all other lawsuits that you spent money no dating back to when you first started litigating people" is the epitome of such a request; each will be addressed in turn. Guidelines for inspection of public records are codified at KRS 61.872. Of particular relevance here, KRS 61.872 provides:

(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.

(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.

(3) A person may inspect the public records:

In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. A requester "whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5 (emphasis added); 04-ORD-011. 5 On the other hand, a requester who lives or works in the same county where the public records are located, as Mr. Hicks apparently does, may be required to inspect the records prior to receiving copies. Id.

In 00-ORD-180, the request in dispute was for a copy of "any/all complaints" brought against the Kentucky Department of Corrections or any of its divisions and the Kentucky Parole Board during the preceding two years that involved "the issue of drug testing by Kentucky probation and/or parole officers." In our view, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. As the Attorney General observed in 02-ORD-26, this office criticized "open ended any-and-all-records-that-relate-type of requests" in 96-ORD-101 and 99-ORD-14, as well as the "broad discovery request[s]" at issue in 00-ORD-79. Id., p. 6. By requesting to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002[,]" in contrast, the requester in 04-ORD-028 made his request "specific and narrow enough" to enable the Kentucky Department of Veterans Affairs to identify and locate the records at issue. Such is the case here.

In addressing the degree of specificity required in drafting a request, the Attorney General has consistently observed:

An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.

99-ORD-140, p. 6; 01-ORD-51. Although Mr. Hicks' request arguably does not "precisely describe" the first category of records being sought, the scope of the request is necessarily "specific and narrow enough" - records documenting expenditures relative to lawsuits filed against him during a limited time frame (1999-present) - for the Board to identify and locate records which are potentially responsive, as it appears to have done. In other words, Mr. Hicks framed his request with "sufficient clarity" to enable the custodian of records to identify and retrieve the requested records. Nothing more is required. Upon his satisfaction of this "precondition to inspection, " the burden of proof shifted to the Board.

To clarify, the Board has not denied Mr. Hicks' request for the first category of records, 6 but has attempted to comply; 7 however, the Board appears to implicitly be relying upon its lack of actual possession in disassociating itself from the liability insurance carrier that may have custody of additional records which are responsive. In the event any such records exist aside from those already provided to Mr. Hicks, such as records generated from 1999-2003, the Board is obligated to produce those records for inspection pursuant to 06-ORD-147, a copy of which is attached hereto and incorporated by reference, and the authorities upon which that decision is premised. See 00-ORD-207. While there may be rare occasions when records identified in a request do not qualify as public records by virtue of a private entity having custody, as in 99-ORD-202, the record on appeal does not contain sufficient evidence for this office to make such a determination. However, the fact the Board is not currently in possession/does not have physical custody is not a sufficient basis for denying access. 05-ORD-015; 00-ORD-207. Assuming that additional records exist and those records are being held "at the instance of and as custodian on the [Board's] behalf, the Board must disclose those records regardless of where the records are being maintained at present. By the same token, the Board obviously cannot produce for inspection or copying records which do not exist; 8 having affirmatively indicated as much in writing to Mr. Hicks, nothing more would be required of the Board. 9 In light of this determination, the remaining question is whether the Board is required to honor Mr. Hicks' request (phrased like a directive) for "a total on all lawsuits . . ."

Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. Elaborating upon this position, the Attorney General has recognized:

Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.

04-ORD-080, p. 13, citing OAG 87-84. Of particular relevance here:

This 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. At page 2 of 93-ORD-50, we observed:

[T]he 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.

02-ORD-165, p. 4. Simply put, "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. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position.

However, the analysis does not end there. "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." 97-ORD-6, p. 5 (Original emphasis). In keeping with this position, 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 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. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. Such is the case here relative to Mr. Hicks' request for the latter category of records; in the alternative, Mr. Hicks may wish to further clarify and sufficiently narrow the scope of his request by specifying a time frame, names of parties, etc. Either way, the Board is not required to compile information or create a record to satisfy his request nor must the Board conduct research or issue written responses to questions. See 05-ORD-272.

To the extent Mr. Hicks is questioning the content of the records provided, such an issue is not justiciable in this forum as consistently recognized by the Attorney General. On this issue, 07-ORD-023, a copy of which (as previously noted in footnote 8) is attached hereto and incorporated by reference, is controlling. As in 07-ORD-023 and the decisions cited therein, this office finds that issues concerning the value of information contained in public records produced for inspection are not within the scope of an Open Records appeal. 10

John Hicks811 Prater Fork Rd.Hueysville, KY 41640

Paul W. Fanning, SuperintendentFloyd County Board of Education106 North Front AvenuePrestonsburg, KY 41653

Michael J. Schmitt327 Main StreetP.O. Drawer 1767Paintsville, KY 41240-1767

Jonathan C. Shaw327 Main StreetP.O. Drawer 1767Paintsville, KY 41240-1767

Footnotes

Footnotes

1 Although neither the identity nor the purpose of the requester is relevant in the context of an Open Records appeal, with limited exceptions which are not applicable, by way of background, Mr. Shaw explains that Mr. Hicks "is a disgruntled former special education teacher for the Floyd County Board who, since his termination in 1999 has unsuccessfully brought suit against the [B]oard in both federal and state courts. He currently has one matter before the Kentucky Court of Appeals and has made numerous open records requests containing non-specific requests to the [Board] in past years[]."

2 Interestingly, Mr. Hicks did not attach a copy of his request dated March 6, 2007, which is nearly identical to a handwritten letter dated December 7, 2006, a copy of which Mr. Hicks did attach to his complaint/appeal; a copy of the original request dated December 7, 2006, is attached to Mr. Shaw's response and clearly differs from the letter attached to Mr. Hicks' complaint insofar as Mr. Hicks requested a copy of the record that "shows how much money the [Board] has spent on attorney fees . . ." Given the similarity between the request attached to Mr. Hicks' complaint (dated December 6, 2007) and the request dated March 6, 2007, a copy of which is attached to Mr. Shaw's response on behalf of the Board, as well as Mr. Hicks' reference to a "recent" written request (presumably March 6), our analysis focuses exclusively on whether the Board complied with relevant provisions of the Open Records Act in responding to Mr. Hicks' request(s) for any records documenting the amount of money spent on "[his] lawsuits alone since October of 1999" and the total amount of money spent on "all lawsuits" dating back to when the Board "first began litigating people."