Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General violated the Kentucky Open Records Act in denying Kenneth R. Ridgard's September 10, 2010, request for "copies of registration requirements; residence or housing restrictions; work association regulations or other statu[t]es and law[s] governing sex offenders. " Mr. Ridgard also requested "[f]urther information regarding how the particular conduct as opposed to the statutory label might affect application of the rules" and "information regarding the relevance of date of conviction, date of offen[s]e." In a timely written response, Tad Thomas, Assistant Deputy Attorney General, denied Mr. Ridgard's request, advising him "that the Open Records Act does not require a public agency to produce published regulations, statutes or laws as you have requested." Mr. Ridgard subsequently initiated this appeal, noting that he is a federal inmate without internet access. Consistent with governing precedents, the agency's denial of Mr. Ridgard's request is affirmed.
Upon receiving notification of Mr. Ridgard's appeal, Mr. Thomas elaborated upon his position, citing 08-ORD-114 and observing that "[i]t has been the longstanding opinion of the Attorney General that the definition of 'public records' codified in KRS 61.870 does not include legal reference materials since these documents would not enable the public to monitor the public agency. " Mr. Thomas further observed that under the Act, "public agencies are only required to produce documents already in existence and are not required to conduct research or compile information to conform to a written request." Accordingly, Mr. Thomas declined to produce the requested information. Prior decisions by this office fully validate Mr. Thomas' position.
Before addressing the substantive issues presented, this office will briefly address the conflict that our review of the action(s) taken by a division of this office seemingly presents. KRS 61.880(2) requires the Attorney General to resolve disputes concerning access to public records. In construing KRS 61.880(2), this office has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
If this matter is appealed to the appropriate circuit court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, this office must proceed with a review of the appeal "without favoritism or bias." Id. This office has done so many times under circumstances which caused our impartiality to be called into question, including occasions when this office was asked to conduct a KRS 61.880(2) or KRS 61.846(2) review of disputes involving this office and on which violations of the Open Records and Open Meetings Acts were ultimately found. See, e.g., 97-ORD-117 (Office of the Attorney General improperly relied on KRS 61.878(1)(a) in denying request for documents relating to investigation); 99-ORD-121 (Office of the Attorney General violated KRS 61.880(1) in denying request for documents of its Consumer Protection Division); 01-OMD-154 (Kentucky Child Support Guidelines Commission, which Attorney General was contractually obligated to legally advise, violated Open Meetings Act in failing to comply with requirements for special meetings); accord, 99-ORD-36; 05-ORD-075 (Attorney General adjudicated disputes involving Department of Public Advocacy). Here, as in past appeals, this office assures the parties that "[w]e strive to maintain absolute [independence and] impartiality in discharging [the statutory] duty" with which we are charged under KRS 61.880(2). 97-ORD-117, p. 1.
In 08-ORD-114, upon which Mr. Thomas relied, this office again recognized that "the definition of 'public record' codified at KRS 61.870(2)" has been construed "to exclude reference materials, including statutes, administrative regulations, and case law." Id., p. 7. Although such materials might "'technically qualify as 'public records' due to being in the possession of or retained by a public agency, '" this office has nevertheless consistently held that disclosure of such materials "'would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act. '" 08-ORD-114, p. 7, citing 99-ORD-35, p. 4. Accordingly, those materials are not "public records" within the meaning of the Open Records Act. Even assuming that reference materials could be properly characterized as "public records" within the meaning of KRS 61.870(2), this office has also consistently recognized that a public agency is not required to conduct research by locating relevant statutes concerning a particular subject or compile information for the purpose of complying with a given request. 08-ORD-114, p. 8. The analysis contained in 08-ORD-114 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. In accordance with 08-ORD-114 and the authorities upon which that decision was premised, the denial of Mr. Ridgard's request is affirmed.
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.
Kenneth R. Ridgard, # 26150-018Tad Thomas