Request By:
Missy Staples
William J. Ray
Jeff Herbert
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Missy Staples initiated this appeal by letter dated February 8, 2017, challenging the denial by the Glasgow Electric Plant Board ("GEPB") of her February 3, 2017, request for "[a]ll communications between WCLU's Angela Briggs and Billy Ray, PE, Superintendent GEPB, including but not limited to the names of the 36 people used for her radio news article Fact or Fiction: Saving Money Under Infotricity." 1 In a timely written response, Superintendent Ray advised Ms. Staples that, "[b]y Open Records Request, duly served on January 30, 2017," Ms. Briggs, "in her capacity as a news reporter at WCLU Radio, personally appeared at the offices of the [GEPB] and requested information based upon a spreadsheet located on her laptop. No record was retained as to the names of the customers for whom Ms. Briggs requested the information," 2 Mr. Ray observed, "as the data for the bill comparisons [was] provided verbally to Ms. Briggs who incorporated [the data] into the spreadsheet she maintained. Accordingly, we have no documents that are responsive to this request." 3
Upon receiving notification of Ms. Staples' appeal, Superintendent Ray supplemented his original response on behalf of GEPB. Superintendent Ray emphasized that GEPB received a request dated February 3, 2017, that was different from the February 3, 2017, request attached to Ms. Staples' February 8, 2017, letter of appeal. Attached to Superintendent Ray's February 28, 2017, appeal response was a copy of Ms. Staples' original February 3, 2017, request for "the 36 people's names whose bills were shared with WCLU for a news article that came out on 1/31/2017." GEPB maintained that the "difference between the two" requests is "obvious, and further demonstrates the misrepresentation made by Ms. Staples to the Office of the Attorney General." Accordingly, GEPB "stands by its response to the real ORR of Ms. Staples." (Original emphasis.) In response to Superintendent Ray's characterization of Ms. Staples' omission as "a deliberate attempt to deceive" this office, Ms. Staples acknowledged that she "had inadvertently forgotten to save a copy of" her original February 3, 2017, request, so in lieu of providing this office with a copy of it, she "wrote a summary of what" she needed and sent that instead. 4 However, Ms. Staples attested that she "was not in any way trying to deceive" this office and further alleged that Superintendent Ray is attempting to "intimidate" and prevent disclosure of this information, which Ms. Staples admittedly requested for the purpose of determining whether to file a class action lawsuit against GEPB.
This office is not statutorily authorized to conduct investigations, gather evidence, interview witnesses, etc. in the context of resolving an Open Records Appeal; rather, KRS 61.880(2)(a) specifically requires the Attorney General to "review the request and denial and issue . . . a written decision stating whether the agency violated provisions of [the Open Records Act]." 5 See 09-ORD-186; 12-ORD-065. Accordingly, this office "makes no finding regarding the actual motivation or credibility of either party," 6 an issue which is not justiciable in this forum, but does note that neither the identity of the requester nor his or her purpose in requesting access to public records has any bearing on the relevant legal analysis with very limited exceptions not relevant here. 7 See Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994)(recognizing the "Legislature clearly intended to grant any member of the public as much right to access the information as the next."); 96-ORD-209 ("all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof"); 07-ORD-056.
KRS 61.880(2)(a) outlines the procedural requirements for submitting an Open Records Appeal. In relevant part, KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. . . .
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. See 40 KAR 1:030, Section 1; 94-ORD-28. Because Ms. Staples admittedly failed to provide this office with a copy of her original written request, her appeal is not perfected. 8 Even assuming that Ms. Staples had provided this office with a copy of her original February 3 request, however, inasmuch as GEPB did not deviate from its original response and that request is now of record, this office notes in the interest of efficiency, that a public agency such as GEPB is not required to compile information or create a record for the purpose of satisfying a request.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that requests for information, such as requests for names, as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080; 10-ORD-201. Accordingly, the Attorney General has long recognized that "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying." 04-ORD-080, p. 13 (citation omitted). Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871, KRS 61.872(1), and KRS 61.872(2), validates this position. However, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5; 14-ORD-073 (original emphasis). 9
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes
1 Attached to Ms. Staples' letter of appeal was a copy of the referenced article, in which Ms. Briggs observed:
WCLU News went to the [citizens' Facebook] page and looking at the activity from the past month, compiled a list of those members who have commented or posted about their bill. WCLU News filed an open records request with the Glasgow EPB in order to be able to compare the online claims. Of the 64 online posters, we were able to match 36 of them to an EPB account in their name and then compared their online claims to what the actual numbers showed.
2 Because it was unclear from this assertion whether Ms. Briggs, like Ms. Staples, had submitted a written request under the Open Records Act, in accordance with KRS 61.880(1), and the record was equally unclear as to whether a record was ever created (versus "retained"), this office subsequently asked GEPB for clarification and, upon learning that Ms. Briggs made a written request, asked GEPB provide this office with a copy of Ms. Briggs' January 30, 2017, request letter. See KRS 61.880(2)(c); 40 KAR 1:030, Section 3. GEPB promptly complied.
3 To the extent an existing database contains the information that Ms. Staples requested, any member of the public is entitled to access it, or any other existing, non-exempt public record, just as Ms. Briggs did. However, GEPB cannot produce a nonexistent record for inspection or copying, such as the referenced spreadsheet, etc. nor is the agency required to "prove a negative" in order to refute a claim that a certain record exists in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed); 11-ORD-037; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence").
4 Ms. Staples initially attempted to submit her Open Records Appeal by letter dated February 8, 2017, but failed to include a copy of her original written request; accordingly, in a letter dated February 15, 2017, this office advised her of this deficiency and the requirements of KRS 61.880(2). Ms. Staples subsequently provided this office with the purported February 3, 2017, request for "all communications...." attached to her current appeal. The Attorney General had no reason to question whether this request was the original request until Superintendent Ray emphasized this deficiency in responding to Ms. Staples' appeal, implicitly relying upon KRS 61.880(2)(a).
5 The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17; 14-ORD-023.
6 12-ORD-128, p. 7, note 4.
7 A logical extension of this principle is that disparate treatment of applicants is not permissible under the Open Records Act. See 07-ORD-056, pp. 7-10; 05-ORD-065; OAG 90-50; 96-ORD-209; 07-ORD-143. In light of these authorities, the Attorney General assumes that Ms. Staples will also be permitted access to any non-exempt information contained in the database if she chooses to submit a new request for that record.
8 Inasmuch as Ms. Staples did not first submit her purported February 3 request for "all communications...." to GEPB, consideration of any related issues (to the extent any different issues exist) would be premature.
9 In Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008), the Kentucky Supreme Court observed that in contrast to KRS 61.872(3)(b) "nothing in KRS 61.872(2) contains any sort of particularity requirement." Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Id. A request to conduct on-site inspection, as opposed to a request to receive copies by mail, is assessed under the lesser standard of KRS 61.872(2). Ms. Staples could be required to inspect prior to receiving copies under KRS 61.872(3)(b).