Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
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 Little Sandy Correctional Complex did not violate the Open Records Act in denying DeShawn Howard's March 11, 2014, request for "a copy of the 25 inmates' names and numbers in reference to the disciplinary report # LSCC 2014-00134 . . . ." In a timely written response, LSCC advised Mr. Howard that although "[t]he write up you are referring to states that the incident occurred in front of approximately 25 inmates [, t]here was not a listing made of the inmates. " It was therefore LSCC's position that the requested document "does not exist." LSCC reaffirmed this position in supplemental correspondence directed to this office after Mr. Howard initiated an open records appeal, explaining that at the time the incident that resulted in the disciplinary report occurred, "there were over 100 inmates in the dining room and no way to identify the 25 in question." In further support of its denial, LSCC cited 07-ORD-190, 06-ORD-040, and 09-ORD-126.
It is well-established that requests for information not contained in an existing public record need not be honored. See, e.g., OAG 76-375. Thus, in OAG 87-84 the Attorney General observed:
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. Several years later, we elaborated:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
02-ORD-165, p. 4. These open records decisions were premised on the language of the Open Records Act, 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.) In the appeal before us, LSCC confirms the nonexistence of a record in which the twenty-five inmates who witnessed the incident that led to the disciplinary report are identified. LSCC cannot produce a record that does not exist and is not required to compile the information Mr. Howard seeks to satisfy his request. We therefore affirm the facility's actions.
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:
DeShawn Howard, # 257691Beth HarperLinda M. Keeton