Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky violated the Open Records Act in its disposition of Dr. Lachin Hatemi's July 24, 2015, request for records of various statistics relating to "black medical students" or "African American medical students." For the following reasons, we find no violation of the Act.
Dr. Hatemi's July 24 request sought records in 36 different categories, all of which were described as records of certain statistics specifically pertaining to a group identified as either "black medical students" or "African American medical students." These statistics included graduation rates; how many were graduates of pipeline programs; how many were paying in-state tuition; how many "discontinued their medical education"; how many "had to repeat at least one year"; and how many transferred to other medical schools.
The University's response on July 30, 2015, from Official Records Custodian Bill Swinford, answered as follows to each of the items in Dr. Hatemi's request:
Please be informed that the University's College of Medicine has advised that there are no documents responsive to this portion of your request. The Kentucky Open Records law states that certain public records must be available for public inspection. This request is for "information," not a record. Through the Open Records law and opinions of the Attorney General, it is clear that public agencies need not create records in response to an Open Records Request. The COM does not possess or maintain a record that specifically documents this portion of your request.
Dr. Hatemi initiated an appeal to this office on November 13, 2015.
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 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, we do not believe that this appeal warrants additional inquiries, for the reasons explained below.
Dr. Hatemi's appeal is premised on the argument that federal law requires the University to maintain and report the specific information he seeks, and therefore some records containing those statistics must exist. In support of this argument, he cites 20 U.S.C. § 1092 (the "Student Right-To-Know Act" ) and the related federal regulation 34 CFR § 668.45. Subsection (e)(1) of the federal statute provides:
Each institution of higher education which participates in any program under this title and is attended by students receiving athletically related student aid shall annually submit a report to the Secretary which contains-- the number of students at the institution of higher education who received athletically related student aid broken down by race and sex in the following sports: basketball, football, baseball, cross country/ track, and all other sports combined;
(Emphasis added.) Earlier in the same statute, subsection (c)(1) provides in part as follows:
In conjunction with representatives of institutions of higher education, the Secretary shall analyze the feasibility and desirability of making available to students and potential students--
(Emphasis added.) Thus, one of the statistical categories that delineate the specific information requested by Dr. Hatemi (race) is included in the reporting requirements under 20 U.S.C. § 1092, but the other category (program, field of study, individual school or academic division) appears only as a possibility to be studied by the Secretary of Education.
Similarly, the relevant portion of the regulation, 34 CFR § 668.45(a)(6)(i), provides in part:
Completion or graduation rates must be disaggregated by gender, by each major racial and ethnic subgroup (as defined in IPEDS), by recipients of a Federal Pell Grant, by recipients of a Federal Family Education Loan or a Federal Direct Loan (other than an Unsubsidized Stafford Loan) who did not receive a Federal Pell Grant, and by recipients of neither a Federal Pell Grant nor a Federal Family Education Loan or a Federal Direct Loan (other than an Unsubsidized Stafford Loan made under the Federal Family Education Loan Program or a Federal Direct Unsubsidized Loan) if the number of students in such group or with such status is sufficient to yield statistically reliable information and reporting will not reveal personally identifiable information about an individual student.
(Emphasis added.) Once more, the category of race is present, but not the category of program, field of study, or individual school or academic division.
We therefore find that Dr. Hatemi has not made a prima facie showing that any legal authority compels the University to generate records containing the specific categories of information he requested. If no such record exists, it is not the University's obligation to create one. See, e.g. , OAG 89-45 (the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"); OAG 76-375 (public agencies "are not obligated to compile a list or create a record to satisfy an open records request"). Therefore, we find no 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 proceedings.