Request By:
Mr. David Caldwell
Michelle Russell, Clerk
Wanda McClure Dry, Esq.
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 City of Burgin, through its city clerk's office, violated the Open Records Act in the disposition of a January 18, 2017, letter from city councilman David Caldwell relating to financial reports. For the reasons that follow, we find that the City procedurally violated the Act by failing to respond to Mr. Caldwell's request.
In his January 18 letter, addressed to City Clerk Michelle Russell, Mr. Caldwell stated in pertinent part:
I have had a chance to review the November and December financial reports and I have some significant concerns. ?
Please correct them to include all expenditures in the proper categories on the profit and loss statements. Please include a complete, unedited transaction list by vendor for each month accompanied by a complete list of checks written by account and check number so we can be assured of a complete listing. Also please provide an estimate of when you will be ready for the required audits. ?
?
Please treat this request as if it is a freedom of information request so that we can be assured a timely response.
After receiving no written response from the city clerk, Mr. Caldwell initiated an appeal to this office, which was received on February 7, 2017, and to which the city clerk has not responded.
It is clear from the face of Mr. Caldwell's letter that he is not requesting inspection or copies of existing public records, but rather is asking the city clerk to prepare a new version of the November and December financial reports, including certain specified information. A public agency cannot afford a requester access to a record that has not yet been created. 13-ORD-001. Furthermore, the Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. 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. Accordingly, we find no substantive violation of the Open Records Act.
Nevertheless, the city committed a procedural violation of KRS 61.880(1) by failing to respond to a communication that identified itself as a "freedom of information request," even though the proper terminology would have been "open records." 15-ORD-215. KRS 61.880(1) requires a public agency to issue a written response within three days, excluding weekends and legal holidays, stating whether it will or will not comply with a request. Notwithstanding the fact that the January 18 letter does not require the city to produce any records, a written response was still required. Cf . 93-ORD-125 (procedural provisions of the Open Records Act are mandatory). Thus, the city procedurally violated the Act by failing to make a written disposition of the request.
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 proceedings.