Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Mockingbird Valley subverted the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), with regard to attorney R. Keith Cullinan's August 25, 2016, request for records relating to the city's open records process. For the reasons that follow, we find that the intent of the Act was subverted by the city's noncompliance with KRS 61.876(1).
In his August 25 letter, Mr. Cullinan requested "access to and an electronic copy of" the following:
1) The name and address of the official custodian of the City's records.
2) The name and address of any authorized person having personal custody and control of the City's records.
3) The rules and regulations adopted by the City as mandated by KRS 61.876.
4) Records disclosing where the City has displayed a copy of such rules and regulations.
On August 26, 2016, City Attorney Tom Halbleib replied: "The City maintains no records responsive to these requests." Mr. Cullinan initiated an appeal on September 2, 2016, arguing that the City of Mockingbird Valley was attempting to subvert the intent of the Open Records Act in that some city records exist but "MV is saying that while someone has custody and control of its records, MV itself 'maintains no record' of who he/she/they may be."
Mr. Halbleib responded to the appeal on September 14, 2016, explaining as follows:
The City acknowledges that there are persons who have custody and control of its records. It also confirms that it maintained no written record reflecting who had custody of its records on the date of submission of Mr. Cullinan's request.
?
Moreover, ? I advised Mr. Cullinan that he may contact me and arrange to come to my office to review all of the boxes of the City's records, all of which are located within my office ?
In summary, the City appropriately stated that it does not maintain records responsive to the request that forms the basis of Mr. Cullinan's appeal. Moreover, it has offered him the opportunity to confirm this for himself ?
Assuming that the City of Mockingbird Valley indeed had no records responsive to Mr. Cullinan's request, its response did not violate the Open Records Act. 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. Since the city has essentially opened all of its records to Mr. Cullinan, we do not find that access to any record has been denied.
To the extent that Mr. Cullinan requested information not documented in the city's records, we note that 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.
A public agency is not required to compile a list or to create a record in response to an open records request. ( See 12-ORD-026 and authorities cited therein.)
Nevertheless, we must conclude that the City of Mockingbird Valley subverted the intent of the Open Records Act within the meaning of KRS 61.880(4), since the nonexistence of any city rules and regulations on the subject of public records demonstrates the city's failure to comply with KRS 61.876(1). That section provides:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
A city's failure to adopt the rules and regulations required by KRS 61.876(1) constitutes a subversion of the intent of the Open Records Act. 15-ORD-198.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.