Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Warren County Regional Jail ("the Jail" ) violated the Kentucky Open Records act in its disposition of inmate Harold Jones' March 22, 2010, request to inspect 902 KAR 45:005. We conclude that the Jail did not violate the Act.
On March 23, 2010, Warren County Jailer Jackie T. Strode returned Mr. Jones' request with a response written next to the citation to 902 KAR 45:005 stating: "Not mandated to have, do not have." Mr. Jones initiated this appeal on April 11, 2010. He argues that because 501 KAR 3:100, Section 1(1), requires jails to comply with 902 KAR 45.005, therefore the Jail must have a copy of that regulation. Additionally, Mr. Jones states that the Jailer told him no further open records requests from him would be answered because Mr. Jones had become burdensome.
Warren County Attorney Amy Hale Milliken responded to this appeal on April 21, 2010. She reiterates that the Jail does not possess a copy of 902 KAR 45.005 and is not mandated to possess it. She also summarizes other requests from Mr. Jones with which the Jail has complied, and states the Jail's position that his requests are "overly burdensome, " although she denies that the Jailer told Mr. Jones none of his future requests would be honored. Rather, she advises that on April 19, 2009, the Jailer stated, in response to one of many repeat requests to inspect 902 KAR 45.005, that future requests for that regulation would not be answered.
We find no violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Mr. Jones' argument is that the Jail should possess the regulation because it is required to comply with it. 902 KAR 45.005 is a Cabinet for Health and Family Services regulation adopting the FDA Food Code and specifying how the Department for Public Health is to perform inspections. It does not refer to jails as such, and any information necessary to the Jail's operations would be contained in the FDA Food Code itself. We therefore see no reason why the Jail would need to possess that regulation.
Furthermore, a request for statutes or administrative regulations can properly be denied because legal reference materials are generally not considered "public records" within the meaning of KRS 61.870(2):
This office has, for some time, recognized that although statutes may be owned, used, retained, and in the possession of a public agency per KRS 61.870(2), "their disclosure would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act. " 99-ORD-35, p. 4; see also, 00-ORD-130; 01-ORD-165. Accord, Baizer v. U.S. Dept. of Air Force, 887 F.Supp. 225 (N.D. Cal. 1995) (holding that Department of the Air Force's database of U.S. Supreme Court decisions constituted "library reference material," and was not an "agency record" for purposes of a Freedom of Information Act request). Although KRS 61.870(2) does not expressly exclude library and reference materials from the definition of the term "public record," we are unwilling to define the term so broadly as to extend it to all noncopyrighted materials maintained by a public agency thereby opening the floodgates to open records requests for these materials when they are readily available in public libraries and on the internet.
09-ORD-058, p. 8 (footnote omitted); see also 09-ORD-211, p. 6. Therefore, even had the Jail possessed the administrative regulation in question, there would have been a sufficient basis to deny Mr. Jones' request.
With regard to the Jailer's alleged statement that Mr. Jones' future requests would not be answered, this issue is not ripe for consideration to the extent that those requests have not yet occurred. The only subsequent requests by Mr. Jones of which we are aware are follow-up requests to inspect 902 KAR 45.005, and those have been denied. This office has previously upheld the denial of a duplicate request for records. In 95-ORD-47, for example, we stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." Since Mr. Jones had already been informed that the Jail did not possess a copy of that regulation, we see no justification for his requesting it again. Accordingly, we find that the Jail did not violate the Open Records Act and consider it unnecessary to address the issue of whether Mr. Jones' repeated requests were unduly burdensome under KRS 61.872(6).
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 proceedings.
Harold JonesJackie T. Strode, JailerAmy Hale Milliken, Esq.