Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Personnel Cabinet did not violate provisions of KRS 61.870 to 61.884 in the partial denial of Betty Runner's February 16, 2010, request for copies of "statistical and/or annual reports for the Kentucky Personnel Cabinet and for the Cabinet for Health and Family Services during the Fiscal Year 2007 through 2008 of the number of state employees with merit status who received 'unacceptable' ratings for their 2007 year-end annual employee performance evaluations and were terminated. " 1 We find that 01-ORD-158, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal. In that decision the Attorney General determined that the agency to which a request for nonexistent statistical reports was directed properly denied the request because "a requester does not have a right to require that statistics be compiled if the statistics requested do not already exist." 01-ORD-158, p. 3, citing OAG 76-375, p. 3; accord, 01-ORD-121; 01-ORD-131; 03-ORD-200. Here, as in 01-ORD-158, the statistics sought are "not contained in [the agency's] computerized files," and the Cabinet is not statutorily obligated to "extract electronically stored information to conform to the parameters of an open records request" where no existing program is capable of extracting the information.
In supplemental correspondence directed to this office, Executive Director Dinah Bevington explained that the Cabinet is unable to generate a statistical report reflecting the number of employees who were terminated based upon receiving an "unacceptable" evaluation score. She explained:
[T]he Cabinet relies upon a programmer to obtain information from the CICS database in order to respond to these types of requests. When a personnel action is taken, such as a termination, the termination will be given a specific code that will be identified on the employee's Personnel Action Form (P-1). As our programmer discovered through Ms. Runner's request, there is not a dismissal or termination code that specifically identifies if an employee's dismissal is based solely upon an unacceptable evaluation rating. Those types of terminations usually fall under and would be coded on the P-1 as a "poor work performance issue"; however, if a report were generated to show the number of employees terminated based upon a code for poor work performance issues, the report would obviously encompass and identify other employment related issues that would fall under a poor work performance category.
In addition, with respect to the Annual Report that is generated, the information compiled also does not specifically identify statistical information of the number of employees who were terminated based upon an unacceptable rating of their performance evaluation.
Under these circumstances, and in light of our holding in 01-ORD-158, we find that the Personnel Cabinet's partial denial of Ms. Runner's request did not constitute a violation of the Open Records Act.
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.
Betty RunnerDinah T. Bevington
Footnotes
Footnotes
1 The Cabinet provided Ms. Runner with two existing statistical reports, "Analysis of: 2007 Employee Performance Evaluations" and "Summary: 2007 Annual Statewide Performance Evaluation Report" in an attempt to satisfy, at least in part, her request.
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