Request By:
Robert Akin
Andrew Frauenhoffer
Jeff Mosley
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 Education Cabinet, Office of Employment and Training violated the Kentucky Open Records Act in denying the request of Robert Akin, President of the Central Kentucky Building & Construction Trades Council, for "a listing of any [e]mployers who have contacted the Office of Employment & Training or any of its [statewide] offices in regards to TEGL 21-06: H-2B Temporary Labor Certification for immigrant temporary labor for less than one year." More specifically, Mr. Akin sought records pertaining to "any employers whose business is construction and its derivatives." Mr. Akin also requested "a copy of the Office of Employments [sic] procedure for the handling of these request[s] and the posting of the jobs which the employers filing the ETA 750 part A [sic]." Because Mr. Akin's request is properly characterized as a request for information rather than specifically described public records, and the Education Cabinet is not statutorily obligated to create a record or compile a list for the purpose of honoring a request, nor can the Cabinet produce for inspection or copying nonexistent records, the Cabinet did not violate the Act in denying his request; however, the record on appeal suggests that documents containing the information requested exist and the Cabinet is obligated, upon receipt of a request describing the records with reasonable particularity, to make any existing nonexempt records which are potentially responsive to his request available for his inspection during normal office hours if Mr. Akin wishes to exercise this option.
By letter dated November 26, 2007, Mr. Akin initiated this appeal challenging the failure of the Cabinet to respond upon receipt of his request. Upon receiving notification of Mr. Akin's appeal from this office, Tamela A. Biggs, Assistant Counsel, responded on behalf of the OET, adopting a copy of her written response filed on behalf of Andrew Frauenhoffer, Executive Director, OET, on October 8, 2007. 1 As initially asserted by Ms. Biggs:
The purpose of the Open Records Act is to provide access to public records which, by law, are not exempt. OAG 79-547; OAG 85-88. OET does not keep a list of employers who have contacted it regarding TEGL 21-06, H-2B temporary labor certification nor does it currently have written procedures for handling such requests. The records you seek do not exist. "It is a fundamental principle of the Open Records Law that a public agency cannot furnish access to records which do not exist." 97-ORD-56, p. 2; 96-ORD-101; OAG 91-220; OAG 86-38. Further, OET is not obligated by law to create such records to conform to your request. "A public agency is not required to compile information or answer questions, but is only to provide documents . . . which are responsive to a request." OAG 89-61. "A public agency is not obligated to create records to satisfy a particular open records request." 02-ORD-112; 97-ORD-56; 96-ORD-139; 95-ORD-48. "The 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." See e.g., OAG 72-275; OAG 79-547; OAG 81-335; OAG 86-51; OAG 89-77; OAG 89-81; OAG 90-19.
In reply, Mr. Akin advised, by letter directed to the undersigned counsel via facsimile on December 21, 2007, that he spoke with Ms. Biggs via telephone in order to determine whether the "wording of the request was inaccurate or if no [r]ecords exist who made that determination that these records do not exist." According to Mr. Akin, he was advised by Ms. Biggs "that she had ask[ed] the [s]taff if there were any records per my request [for] a list of [e]mployers who were requesting to use the TEGL 21-06 H-2B process to being Aliens into Kentucky for Temporary Non-Agricultural Employment as Construction Workers" and the procedures employed by the OET for handling these requests; the staff advised Ms. Biggs that no such records exist. As Mr. Akin further explains, Kentucky received approximately $ 259,000.00 in funding during Fiscal Year 2007 "through the Office of Foreign Labor Certification. Only 9 other [s]tates exceeded Kentucky's funding level." To acquire this funding, each state "must adhere to certain criteria" as outlined in the "Program Planning Guidance and Information Package," a copy of which is attached to Mr. Akin's letter. 2 Referencing some of the requirements, Mr. Akin asserts that "there have to be records regarding" his request. Having reviewed the documents in their entirety, this office finds Mr. Akin's assertion credible; 3 however, this office "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. As a corollary to this proposition, the Attorney General has often recognized that a public agency cannot afford a requester access to nonexistent records.
In our view, the analysis contained in 07-ORD-042, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. 4 "'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 adequate 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. In the absence of a properly invoked statutory exception authorizing nondisclosure of the records, or portions thereof containing the requested information, the OET is required to make a good faith effort, upon receipt of a request describing the records with reasonable particularity, to provide Mr. Akin with access to any nonexempt records which might yield the requested information, assuming that any exist, so that Mr. Akin may extract any may locate any responsive information himself.
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 failing to issue a written response within three business days of receiving Mr. Akin's request, OET violated the express and mandatory terms of KRS 61.880(1); accordingly, this office is compelled to remind the Cabinet as a whole, and the OET specifically, that procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
2 In further support of his position, Mr. Akin faxed a copy of a document entitled "Navigating the H-2B Application Process" on the same day.
3 For instance, the "Program Planning Guidance and Information Package" specifies that State Workforce Agencies are responsible for processing "H-2B temporary non-agricultural labor certification applications in accordance with existing policy and time frames," and receiving "new applications for H-2A temporary agricultural labor certification, " among other activities. Likewise, the "ALC Annual Plan Narrative" indicates that the OET "agrees to assist ETA [the Employment and Training Administration] by conducting appropriate agricultural surveys and providing wage determination information to employers wishing to file or update a labor attestation, Labor Condition Application, Application for Alien Employment Certification (Form ETA 750), or an Application for Permanent Employment Certification (Form ETA 9089)." Although the OET does not possess a "listing" of employers who have contacted the OET in reference to H-2B Temporary Labor Certification, it does appear that employers are required to submit applications, the content of which is presumably encompassed by Mr. Akin's request.
4 With regard to application of KRS 61.872, which contains the guidelines for inspection of public records, the analysis contained at 06-ORD-155, pp. 7-11, is controlling.