Opinion
Opinion By: Jack Conway, Attorney General; Sean J. Riley, Director Office of Civil and Environmental Law
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 the Office of the Governor did not violate the Open Records Act in denying Bruce Tyler's September 7, 2011, request for "a bit of information . . . ." Specifically, Mr. Tyler asked when the Governor spoke at the University of Louisville's Saturday Academy, what he spoke about, whether he spoke more than once, and on what additional dates he spoke. Although the arguments it originally advanced in support of denial of the request were unpersuasive, the Governor's Office advanced additional arguments in its supplemental response. These arguments were postulated on Mr. Tyler's failure to properly frame his request. On this narrow basis, we affirm.
The Governor's Office issued a timely written response to Mr. Tyler's request in which it invoked "KRS 61.878(1)(j) and (k) [sic]" as interpreted in
Courier-Journal v. Jones, 985 S.W.2d 6 (Ky. App. 1995) and 04-ORD-211. On appeal, the Governor's Office asserted that it has no obligation "to honor a request for information, as opposed to a request for specifically described records," or "to create records to satisfy a particular open records request," citing 02-ORD-138 and 02-ORD-112. "The only record/document relating to Mr. Tyler's request," the agency concluded, "is the Governor's schedule which is exempt from disclosure" per Courier-Journal v. Jones , above.
We affirm the denial of Mr. Tyler's request that the Governor's Office answer a series of questions about the Governor's participation in the Saturday Academy. In 06-ORD-024, a copy of which is attached, we referenced a line of decisions recognizing that a public agency is not statutorily obligated to honor a request for information as opposed to a request for public records. In OAG 87-84, for example, the Attorney General declared that although "[t]he public has a right to inspect public documents and to obtain whatever information is contained in them, . . . the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." 06-ORD-024, p. 3. In support, we cited KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added). 99-ORD-71, p. 2 cited in 06-ORD-024. Clearly, the Governor's Office is not obligated to answer Mr. Tyler's questions, and its refusal to do so did not violate the Open Records Act.
We note for the record that the Governor's Office's assertion that the Governor's schedule is exempt from disclosure is only partially accurate. In 09-ORD-203, this office distinguished the Governor's public appearance schedule from his internal appointment ledger and determined that the former record "forfeits its preliminary characterization and must be disclosed to the public, upon receipt of an open records request, on the day it is distributed. " 1 09-ORD-203, p. 3. A copy of that open records decision is enclosed. Neither KRS 61.878(1)(i) and (j), nor Courier-Journal v. Jones , above, supports the position of the Office of the Governor that the Governor's public appearance schedule is exempt from disclosure. If Mr. Tyler requested a copy of Governor Beshear's schedule for the specific date on which this alleged event occurred, and if the Governor's appearance schedule for that date had previously been made public, that public schedule would not be exempt from disclosure. 2 09-ORD-203.
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.
Distributed to:
Bruce TylerMichael T. Alexander
Footnotes
Footnotes
1 In 09-ORD-203, the Governor's Office explained that it maintains a public appearance schedule distribution list and that it "periodically releases and distributes a public appearance schedule." There is nothing in the record on appeal suggesting a change in this practice.
2 Mr. Tyler's request did not identify with specificity the date on which the Governor's alleged speech occurred at the Saturday Academy. In fact, Mr. Tyler's request directly asks the Governor, "When did you speak?" The plain language of Mr. Tyler's request indicates that he is seeking information regarding the date the Governor spoke at the Saturday Academy, as opposed to requesting a copy of a previously released public schedule for a date certain reflecting a confirmed public appearance by the Governor.