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 Pike County Fiscal Court violated the Open Records Act in the disposition of Charles Sanders' January 15, 2016, request for certain records relating to county employees. For the reasons that follow, we find no violation of the Act.
In his request, addressed to Pike County Judge/Executive William Deskins, Mr. Sanders requested: 1
1. A full and complete list of salaries of all county employees that provides base salary and all benefits, including but not limited [to] cellphone usage and other perks, which should also include a printout of the county budget line item that substantiates this amounts [ sic ];
. . .
4. A full and complete list of all employees that have received workers' compensation and disability benefits over the last 10 years with reason and location of injury as it relates to the claim filed[.]
The record does not reflect when the fiscal court's response was made, but it evidently consisted of copies of records and some notations written on the request itself. In his appeal dated March 14, 2016, Mr. Sanders does not take issue with the formal sufficiency of the response, but with the failure to provide all items described in items 1 and 4 of his request. Specifically, the response underlined the phrase "cellphone usage and other perks" in item 1, with the notation "examine records." In response to item 4, the response stated: "We don't have these records. Must file w/Kentucky Worker's Comp Claims."
In a response to this appeal dated March 24, 2016, Assistant Pike County Attorney John Doug Hays explains that Pike County has no list of employee benefits including "cell phone and other perks" :
Even so, with regard to the requested information, Pike County did provide all records that it did have which provided base salary and benefit information, including computer printouts, copies of budget, etc. . . . Pike County simply did not have a list which listed "cell phone usage and other perks of all county employees. " Therefore, . . Mr. Sanders was invited to "examine records" with regard to cell phone usage and other perks of all county employees, being 236 in number.
As to item 4 of the request, a list of employees receiving workers' compensation benefits, Mr. Hays states:
Pike County does not have such a list . . .. Pike County procures workers compensation insurance through KALF (Kentucky All-Lines Fund) which is administered by KACO. Pike County simply does not keep or have the records requested and it was therefore noted . . . that "We don't have these records" and "must file with Kentucky Workers Compensation Claims."
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. The Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45. Thus, agencies "are not obligated to compile a list or create a record to satisfy an open records request." OAG 76-375. We therefore find no violation of the Act by Pike County. 2
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.
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