Opinion
Opinion By: Andy Beshear,$/Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Meetings Decision
April DeFalco appeals the City of Falmouth's denial of her September 24, 2015, request for:
. [a] list of officers and certification dates, training dates and courses, any officers coming from inactive to active status and dates;
. [a] copy of [the] 2015 accreditation;
. [a] list of all officers taking home cruisers and mileage of [sic] residency; [and]
. [a] list of all officers and rankings.
In a response dated October 13, 2015, the city denied Ms. DeFalco's request, explaining as to each subpart:
. Chief said [there are] no records or forms on officers and certifications [exist];
. Chief said [that] the current 2015 accreditation is in process;
. Chief said [there is] no record for officers taking home cruisers and mileage of residency; [and]
. Chief said [there is] no record of officers and rankings.
This appeal followed.
In supplemental correspondence directed to this office after Ms. DeFalco initiated her appeal, the city argued that it was not required to create a record to satisfy her request. The city noted that the accreditation process was underway and was expected to be completed by December 2015 at which time the accreditation records would be available. As of November 2, 2015, however, there was no document in existence that was responsive to her request for the "2015 accreditation. " The city did not defend its failure to respond to Ms. DeFalco's request within three business days.
The city's position that it is not required to create a record, including a list, where none exists is supported by well-established legal authority. The same authority, however, requires the city to afford Ms. DeFalco access to the nonexempt portions of records containing the information she seeks to enable her to create her own list. Thus, in OAG 87-84 this office "attempted to set forth the difference between a request for information and a request to inspect and copy records and documents under the Kentucky Open Records Law" in the context of an appeal involving an improperly framed request for information. We observed:
The Open Records Law provides in part in KRS 61.872(1) that, "all public records shall be open for inspection by any person" unless those records and documents may be excluded from public inspection under one of the statutorily authorized exceptions to public inspection.
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 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. [Citing OAG 86-51 and OAG 81-333.]
The fact that the information sought was not compiled in a single document, we concluded, did not relieve the public agency of its obligation to afford the requester access to nonexempt public records from which he could compile his own list.
In OAG 89-81 we addressed a similar issue involving a request for information relating to an agency's fiscal assets, receipts, and expenditures that had not been compiled in a list or a single record. We found that the agency violated the Open Records Act in denying the request, reasoning that although the public agency was not required to compile or explain records, the agency was required to make records containing the information available for inspection. We observed:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies.
OAG 89-81. Recognizing that financial records are subject to public scrutiny, we held that the agency was obligated to make available to the requester records containing the information he sought even though it might "require days or perhaps a week." OAG 89-81. "Unreasonable restriction on inspection, " we concluded, "may not be imposed." OAG 89-81.
In OAG 90-19, which is even more directly on point, this office was asked to review a county clerk's denial of a request for information consisting of the salaries of deputy clerks and their individual travel expense amounts for a ten year period. We held that the clerk's denial was inconsistent with the Open Records Act, observing:
In the instant case, a request was made for certain "information." Kentucky's Open Records provisions are not intended to provide a requester with particular "information," nor to require public agencies to compile information to the parameters of a given request. See, for example, OAG 76-375. Kentucky's Open Records provisions do provide for inspection of reasonably identified records, unless exceptions are taken pursuant to specific statutory provisions. The request here technically, appears to be a request for specific information to be provided, rather than a request to inspect reasonably described records. Taken literally, the request asks that salary and travel expense information be compiled for each of the calendar years 1978 through 1988.
While the request here involved is one for information, rather than to inspect records, and thus does not technically conform to Open Records provisions, we believe the proper response was for you to promptly respond in writing to the request. Your response should have stated that while Open Records provisions did not require a public agency to compile information, records that might yield the information sought would be made available for inspection during normal office hours. Parts of records withheld, such as the home address of an employee, or a social security number, should have been explained in a manner consistent with KRS 61.880. See for example, OAG 86-75.
OAG 90-19.
Echoing this position, in 97-ORD-6 the Attorney General determined that although it is "true that public agencies are not required to compile information" to satisfy a request for information," agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6 (emphasis in original). In support, we cited OAG 89-61 declaring that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. " See also 98-ORD-17 (recognizing that in the absence of a properly asserted exemption authorizing nondisclosure of records containing information sought in an improperly framed request for information, the agency "must direct [the requester] to the relevant files so that [the requester] might extract the information himself"); 14-ORD-073 (quoting 97-ORD-6 and 98-ORD-17 for the proposition that a requester who wishes to access information that has not already been compiled "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency" in order to satisfy his request).
The City of Falmouth's position is partially correct, insofar as the law does not require the creation of records/lists that are not already in existence, but falls short in failing to recognize the duty to afford Ms. DeFalco access to records containing officers' ranks, certification dates, training dates/courses, and inactive/ active status, as well as their use of cruisers. The city invokes, and we are aware of, no exception authorizing nondisclosure of records confirming police officers' qualifications for employment and their use of city vehicles. Consistent with the line of authority cited about, the city's failure to afford Ms. DeFalco access to such records for the purpose of creating her own list constituted a violation of the Open Records Act. So, too, did its failure to issue a written response to her request within three business days of receipt as required by KRS 61.880(1). 1
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This statute is facially unambiguous. Failure to comply with KRS 61.880(1) constitutes a procedural violation of the Open Records Act.