Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Police (KSP) violated the Open Records Act in its disposition of Christie Bluhm's request for information related to the Earle C. Clements Job Corps Center, Morganfield, Kentucky, dated September 8, 2016. For the reasons that follow, we find no violation of the Act.
Mr. Bluhm's letter states, in relevant part, as follows:
I would like to make Open Records inquiries related to the Earle C. Clements Job Corps Center located in Morganfield, KY. I am requesting the following information, broken into two groups:
1. I would like a list of sexually-based offenses with dates of the incidents that occurred on this campus that were reported to your dept. during the last two years. Also, what were the outcomes in these cases? How many were minors? Are any of the backlogged rape kits to be tested this month related to Earle C. Clements Job Corps Center students?
2. Have you ever had any complaints from students who are of legal age who voluntarily signed up for Job Corps but were not allowed to leave the program or had a hard time leaving? If so, please provide dates, issues, and any other information about the complaint you are legally able to provide.
3. I would like to find out if U.S. Justice Dept. has ever been contacted by your dept. regarding any information you obtained regarding the Earle C. Clements Job Corps Center. (in the time since it opened). If so, when and what were the concerns, outcomes.
4. Have you been contacted by anyone regarding inquiries I've made elsewhere? If so, please provide any correspondence regarding me.
5. How many complaints did the Kentucky State Police receive regarding the untested rape kits and what are the date range of the complaints?
(Once the backlogged rape kits are tested)
1. How many serial offenders were identified? What is the gap in time from one rape to the next?
On September 15, 2016, Emily M. Perkins, Official Custodian of Records, Legal Services Branch, Kentucky State Police, responded to Ms. Bluhm's letter. In pertinent part, Ms. Perkins stated:
Please be advised that the Open Records Act does not statutorily obligate an agency to honor a request for information as opposed to a request for a specifically described public record. Within the Office of the Attorney General's 87-84 opinion it states that 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. Therefore, your request for information is denied.
In addition, the Office of the Attorney General held in 01-ORD-158 that the agency to which a request for nonexistent statistical reports was directed properly denied the request because "a requester does not have a right to require that statistics be compiled if the statistics requested do not already exist." 01-ORD-158, p. 3, citing OAG 76-375, p. 3; accord 01-ORD-121; 01-ORD-131; 03-ORD-200. The statistics sought are not contained in the computerized files and the KSP is not statutorily obligated to extract electronically stored information to conform to the parameters of an open records request where no existing program is capable of extracting the information.
Mr. Bluhm appealed to the Attorney General on September 29, 2016. In response to the appeal, Ms. Perkins reiterated her explanation of September 15, 2016. That letter from Ms. Perkin's adequately explains the nonexistence of the requested information. 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. As stated by Ms. Perkins, requests for information are outside the scope of the Open Records law, and an agency is not obligated to honor a request for information under the law. 02-ORD-88. 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. OAG 89-77, p. 4."
95-ORD-131, p. 2.
Furthermore, 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.) Accordingly, KSP's response did not violate 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 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.