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 Kentucky State Police violated the Kentucky Open Records Act in denying Marvin Phipps' October 21, 2013, request for "statistics" identifying "[h]ow many people in Kentucky who [are] on the Kentucky State Police Sex Offender Registry (SOR) [have] reported to [KSP] that [they have] been threaten[ed] because of the [SOR] website [since] it started." Mr. Phipps further asked how many people in Kentucky who are on the SOR have been the victims of assaults or homicides due to being placed on the SOR since it originated. By letter directed to Mr. Phipps on October 28, Official Custodian of Records Emily M. Perkins denied his request for information, which it received on October 23. She correctly advised that a public agency is not statutorily obligated to honor a request for information as opposed to a request for a public record(s). Citing OAG 87-84, KSP asserted that 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." Ms. Perkins further explained that KSP does not have a mechanism in place "to identify and gather statistical information on the number of sex offender registrants who have reported being victims of crimes, as there is no operational need for this data. Therefore, your request is also denied as there is no statistical data in existence responsive to your request." Relying upon a line of decisions by this office, 1 Ms. Perkins correctly observed that a "request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have."
By letter dated October 31, 2013, Mr. Phipps initiated this appeal. Inasmuch as KSP "has all the statistical data for all the arrest[s] they make and the number of speeding tickets they hand out," he questioned their inability to provide the requested information. Upon receiving notification of Mr. Phipps' appeal, Ms. Perkins elaborated upon the agency's position. Ms. Perkins confirmed that KSP does not collect data "in a manner that can be searched as to whether the victim of a crime is a registered sex offender. Consequently, there is no mechanism by which to gather and produce the records requested." Although KSP "could produce data as to the number of crimes such as harassment, assault, and homicide, " that were reported in a given year, Ms. Perkins advised, there is no mechanism for differentiating which, if any, of the reported crimes involved a registered sex offender as the victim(s). KSP also reiterated that a public agency is not required to honor a request for information and correctly observed that prior decisions by the Attorney General have consistently recognized "that 'a person does not have a right to require a list to be made from public records if the list described does not already exist,' OAG 76-375." Because a public agency is not statutorily required to honor a request for information or create a record(s) in order to satisfy a request, KSP's denial is affirmed.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, the Attorney General has consistently held that requests for information, as opposed to requests for public records, need not be honored. 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080; 07-ORD-042; 09-ORD-163; 10-ORD-156. In addressing this issue, the Attorney General has often recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but 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.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 89-81; OAG 90-19.
Significantly, this office has long held "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., OAG 76-375; OAG 81-333; OAG 85-51; OAG 90-101; 93-ORD-50. In 02-ORD-165, the Attorney General specifically 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., p. 4, quoting 96-ORD-251. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including 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), validates this position. See 08-ORD-181; 12-ORD-026.
In summary, KSP is not statutorily required to honor a request which is properly characterized as a request for information, such as the request made by Mr. Phipps, nor is the agency required to compile a list or create a record containing the information being sought. Although public agencies must generally make any existing nonexempt records that may contain the information requested available for inspection by the requester, in lieu of compiling information or creating a record, inmates may be foreclosed from exercising this right. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." 95-ORD-105, p. 3; 08-ORD-003. By virtue of his confinement at Northpoint Training Center, Mr. Phipps would thus be precluded from inspecting records located at KSP even assuming that potentially responsive documents existed in the possession of the agency. See 09-ORD-163.
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:
Marvin Phipps, # 176844Emily M. Perkins
Footnotes
Footnotes
1 A public agency cannot produce a nonexistent record(s) for inspection or copying, nor is the agency required to "prove a negative" in order to refute a claim that a certain record(s) exists in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); see 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 11-ORD-074. This office is not aware of any legal authority mandating the creation of records containing the requested statistics and KSP has adequately explained the nonexistence of such records. Further discussion is unwarranted given our determination that KSP is not required to honor a request for information.