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 Nelson County Clerk violated the Open Records Act in the disposition of Mark Shouse's January 29, 2014, request for information relating to the cost of making records available on the Internet. For the reasons stated below, we find no violation of the Act.
Mr. Shouse's January 29 letter stated as follows:
This is an open records request to inquire into the requirement for a monthly charge to access Nelson County public records over the Internet. I attempted to retrieve a public land record and was directed to a screen which required an ongoing charge of $ 40.00 per month.
Please provide the monthly and yearly cost to make those records available over the internet when your county's records are already maintained on computer and how the set price of $ 40.00 per month price [ sic ] was deemed a needed price for records even if only one record is retrieved per month. This is also despite the fact that other County Clerks offer the same access to public records free of charge.
Having received no response, Mr. Shouse initiated an appeal to the Attorney General on February 21, 2014, stating:
Please find enclosed a copy of my letter sent to the Nelson County Clerk requesting open records information. As of the date of this letter I have not received a response despite the requirements of a three day response. Also, I have not received indication that the information requested required additional time to respond.
On March 3, 2014, Nelson County Attorney Matthew Hite responded to the appeal by that Mr. Shouse's request "seeks information that would require [the clerk] to create otherwise non-existent reports and documents. Public agencies are not required to produce this type of information under an open records request." Nevertheless, on the same date, Mr. Hite wrote to Mr. Shouse informing him that "the Nelson County Clerk does not prepare, own, use, possess, or retain documents that satisfy your request," and proceeded to give a brief explanation of the cost along with some invoices relating to the construction of the clerk's website.
We agree that the clerk was not required by the Open Records Act to provide this information due to the nature of the request received from Mr. Shouse. Requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records ? [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Accordingly, the clerk was not required to respond to a mere request for information, as opposed to a request for records. 13-ORD-109. We therefore find no violation of the Open Records Act in the clerk's initial failure to respond.
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:
Mr. Mark ShouseMs. Elaine A. FiliatreauMatthew Hite, Esq.