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 Kentucky Labor Cabinet violated the Open Records Act in its disposition of Dr. William Smith's June 10, 2013, request for information and records relating to Kentucky's prevailing wage. For the reasons that follow, we find that the Cabinet committed a procedural violation but not a substantive violation of the Act.
In his faxed June 10 request, Dr. Smith requested "the following documents and information":
1. The individual or group who requested a prevailing wage inquiry into the 425 E. Center Street renovation project in Madisonville, KY.
2. Any letters, e-mails, recorded conversations, or other forms of communication between the Labor Cabinet and any other individuals pertaining to this project.
3. Any letters, e-mails, recorded conversations, or other forms of communication between the Labor Cabinet and other individuals, including legislators, pertaining to the discrepancy between the prevailing wages established by the Labor Cabinet and the actual prevailing wages within the Commonwealth, as outlined in "An Analysis of Kentucky's Prevailing Wage Laws and Procedures" by the Legislative Research Commission dated December 13, 2001, which concluded that the prevailing wages established by the Labor Cabinet are significantly higher than the actual prevailing wages in the Commonwealth.
Having received no response by June 18, 2013, Dr. Smith appealed the matter to the Attorney General. The following day, April L. Abshire, Paralegal Consultant, responded on behalf of the Cabinet:
I am in receipt of your request dated June 10, 2013 for copies of records from the Division of Employment Standards investigative files on the above-reference[d] company. Your request was received June 17, 2013.
All information that we were able to search is enclosed.
It appears that the only records provided to Dr. Smith were a "Notification of Public Works Project" dated June 7, 2013, and a "Prevailing Wage Determination" for Hopkins, Muhlenberg, and Ohio Counties dated November 19, 2012.
On June 25, 2013, attorney David N. Shattuck responded to the appeal as follows:
It appears that because certain employees were on vacation the initial open records request, dated June 10, was not brought to the attention of the General Counsel's Office until June 17; we responded on June 19. We apologize for this inadvertent violation of the requirement that we respond within 3 business days.
We also agree that, within 3 business days from June 10, Dr. Smith should have been given the earliest date that any non-exempt records responsive to the request could be made available. We apologize for this oversight as well.
Since the Cabinet admits to violating the timeliness requirement of KRS 61.880(1), we have no choice but to find that a procedural violation occurred.
Substantively, we note that item 1 of the request is seeking information. Requests for information are outside the scope of open records law and an agency is not obligated to honor such a request. 02-ORD-88. The Kentucky Open Records Act addresses requests for records, not for information. 03-ORD-028. In 02-ORD-165, the Attorney General recognized that the 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." Id. (quoting 96-ORD-251). Therefore, the Cabinet was not required to respond to item 1.
As to items 2 and 3, the Cabinet has represented that it provided "[a]ll the information that we were able to search." In connection with item 2, we presume this to mean that the "Notification of Public Works Project" and accompanying prevailing wage determination were the only records in the Cabinet's possession or control relating to the project in question.
As for item 3, we understand the response to mean that the Cabinet possesses no records of any communications relating to the LRC document of 2001. 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. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the agency's representation that no such records exist. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).
The type of records requested by Dr. Smith in item 3, if any ever existed, would most likely be categorized as "routine correspondence," which the "General [Records Retention] Schedule for State Agencies" promulgated by the Department for Libraries and Archives indicates should be retained no longer than two (2) years. As such, we find nothing inherently amiss in the nonexistence of any communications concerning a 12-year-old report by the LRC. Thus, we find no substantive 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.
Distributed to:
William F. Smith, M. D.David N. Shattuck, Esq.