Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, with two exceptions, the Office of the Kenton County Attorney did not violate the Open Records Act in the disposition of Donald L. Nageleisen's March 11 and March 31, 2010, requests. The resulting appeals are consolidated for purposes of review. We find that 08-ORD-107, correctly cited by the County Attorney for the proposition that public agencies are not required to honor requests for information or to create lists to satisfy the parameters of a request, is controlling. Copies of that decision, and the decision referenced therein, 07-ORD-042, are attached hereto and incorporated by reference. At pages 3 through 5 of the latter decision, the Attorney General synthesized some thirty years of open records law recognizing 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. . . .
[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.
Applying these longstanding principles to the requests at issue in this appeal, we find that all but numeric requests 1 and 2 of Mr. Nageleisen's March 31 records application were incorrectly framed as requests for information as opposed to correctly framed requests for existing public records containing the information sought. 1 We find no error in the County Attorney's disposition of these requests.
Request 1 and 2 of Mr. Nageleisen's March 31 application present a closer question. He asked that the County Attorney:
1) [P]rovide a list or other suitable documentation which would indicate every seminar attended out of the Commonwealth of Ky. by Mr. Edmondson. In regard to such seminars, please provide any and all documentation for each seminar attended out of the Commonwealth of Ky. which would indicate the costs incurred by Mr. Edmondson for attending same.
2) [P]rovide a list or other suitable documentation which would indicate every seminar attended out of the Commonwealth of Ky. by Mr. Chris Nordloh. In regard to such seminars, please provide any and all documentation for each seminar attended out of the Commonwealth of Ky. which would indicate the costs incurred by Mr. Nordloh for attending same.
Mr. Nageleisen then identified the types of records sought including all vouchers and expense records for mileage, air fare, meals, entertainment, and accommodations. The County Attorney issued the same response to these requests as he had issued to Mr. Nageleisen's earlier requests, characterizing them as "requests for information" that he "need not . . . honor[]." In subsequent correspondence, he noted Mr. Nageleisen's failure to "specify a time frame, " explaining that his office "operates under [the] three year retention schedule" for such records approved by this office in 06-ORD-194.
While it is apparent that no single document exists in which all seminar and travel expenses relating to Mr. Edmondson and Mr. Nordloh are compiled, there can be no doubt that "suitable documentation" exists reflecting expenses incurred at each of the seminars they attended. The omission of a time frame does not render Mr. Nageleisen's requests fatally flawed. Obviously, the County Attorney cannot produce records that were properly destroyed under applicable records management practices established by regulation. 725 KAR 1:061. He can, of course, produce for Mr. Nageleisen's inspection expense records associated with his and Mr. Nordloh's attendance at seminars in the past three years. Consistent with KRS 61.872(1) and the rule announced in 08-ORD-107, upon which the County Attorney relies, we find that the Kenton County Attorney is "not required to compile information to satisfy a request," but is "required to make available for inspection, during normal office hours, records that might yield the information sought." 08-ORD-107, p. 7. Because Mr. Nageleisen's request for "suitable documentation" is narrowly framed in terms of subject matter, to-wit, travel expense records relating to Mr. Edmondson's and Mr. Nordloh's attendance at seminars, and because the County Attorney maintains such records for three years only, in accordance with applicable records retention regulation, the County Attorney should have little difficulty locating the travel records and making them immediately available to Mr. Nageleisen for inspection.
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.
Donald L. NageleisenGarry L. EdmondsonStacy H. Tapke
Footnotes
Footnotes
1 Notwithstanding this fact, the Kenton County Attorney provided Mr. Nageleisen with records in his custody containing information sought that is currently maintained, including payroll records, contracts, and budgetary records.