Opinion
Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General
Open Records Decision
Jonathan Fannin ("Appellant"), an attorney, sent a letter to the Department "requesting copies of the public records of the following information." His letter included six requests that were similar to interrogatories. Each request began with the phrase, "Please identify each and every officer (including their full name and badge number) who" engaged in various actions that were specifically described. In a timely response, the Department stated that it "does not possess any list of officers responsive to" the first four questions. In response to the fifth question, which sought the identity of the officers that were the subject of a Professional Standards Unit investigation into the event, the Department stated that the FBI was currently investigating the incident and that the FBI would later advise the Department of the officers who would be the subject of that criminal investigation. In response to the sixth question, however, the Department provided the identity of one officer who met the description of the request. This appeal followed.
A person may inspect public records by submitting a written application "describing the records." KRS 61.872(2)(a). If a person seeks copies of those records, in lieu of inspecting the records in-person, he must "precisely describe[] the public records." KRS 61.872(3)(b). But the Act does not require public agencies to answer requests for information, as opposed to requests to inspect records.
Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013) ("The ORA does not dictate that public agencies must gather and supply information not regularly kept as part of its records."). See also 20-ORD-098; 16-ORD-236; 05-ORD-230; OAG 76-375.
Here, the Appellant did not seek public records. Instead, he asked the Department to identify officers who engaged in certain conduct. The Department explains that it does not possess a record that lists every officer engaged in the conduct described the Appellant. The Act does not require public agencies to answer, what are essentially, interrogatories. Therefore, the Department did not violate the 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.