Request By:
Clarence T. Hurst
Jackie T. Strode
Amy Milliken
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Warren County Regional Jail relative to the open records requests of Clarence T. Hurst violated the Open Records Act. For the reasons that follow, we conclude that the Jail's response did not violate the Act.
By letter dated October 26, 2007, Mr. Hurst submitted an open records request to the Jail, asking for a "copy of Capt. William Baker's resignation from S.E.R.T. in March 2007."
Acknowledging that the request was received on October 29, 2007, Jackie T. Strode, Warren County Jailer, by letter dated November 2, 2007, denied the request stating that the reason for the denial was "personnel records of another deputy."
By letter dated November 19, 2007, Mr. Hurst submitted another request to the Jail, requesting "the names of all former employees with unpaid annual leave along with the amount of time left unpaid for the entire time Jackie Strode has been in office."
By letter dated November 21, 2007, Mr. Strode responded to this second request, advising Mr. Hurst that "such a list does not exist; therefore the information requested cannot be provided."
Shortly thereafter, on November 26, 2007, Mr. Hurst initiated the instant appeal.
After receipt of notification of the appeal, Mr. Strode provided this office with a response to the issues raised in the appeal. In his response, he advised that the Jail had provided Mr. Hurst with the requested copy of Mr. Baker's resignation letter from the S.E.R.T. Addressing Mr. Hurst's second request, he advised:
Regarding the request for a list of all employees and their unpaid leave. Please be advised that no such list exists. To create such a document would be overly burdensome, if not impossible, as I have been Jailer since 1994 and I have - currently 85 active employees. The turnover rate in the corrections field is 38%, but here in Warren County that percentage is much higher.
In a reply to this office, Mr. Hurst argued that a record of accumulated leave is supposed to be kept by the jailer in each employee's file and challenged the Jail's assertion that it may be impossible to provide the requested list.
With respect to Mr. Hurst's request for a copy of "Capt. William Baker's resignation from S.E.R.T. in March 2007," Mr. Strode advised that this record had been provided to Mr. Hurst. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Accordingly, since this record has been provided to Mr. Hurst, we will not render a decision on this issue.
We next address the Jail's response to Mr. Hurst's request for "the names of all former employees with unpaid annual leave along with the amount of time left unpaid for the entire time Jackie Strode has been in office."
The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed.
Requests for information, as distinguished from records, are outside of 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.
Mr. Hurst's request for "the names of all former employees with unpaid annual leave" was clearly one for information, rather than one for a precisely described record. Accordingly, we find no error in the Jail's response that a public agency is not required to honor a request for information under the Open Records Act and that the agency properly denied this portion of the request on that ground. 07-ORD-006.
Moreover, the Jail affirmatively advised Mr. Hurst that it did not have a list of all employees and their unpaid leave. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. 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. 06-ORD-098. The Jail discharged its duty under the Open Records Act by affirmatively so advising and explaining why it did not have records containing the information he was seeking. 99-ORD-150. Accordingly, we conclude that the actions of the Jail, in this regard, did not violate the Open Records Act. It was not required to compile or create a record it did not maintain to meet the parameters of Mr. Hurst's request. 1
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 a reply to the Jail's response, Mr. Hurst argues that a record of accumulated leave for each employee is supposed to be kept by the jailer and that to create such a list would not be impossible. As noted above, a public agency is not required to compile a record to meet the parameters of a request. A person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. 96-ORD-33. Accordingly, Mr. Hurst could request public records containing the information he seeks and compile the statistics in which he is interested.