Request By:
Bruce N. Wilkinson, Director
Boards and Commissions
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. John Winn Miller has appealed to the Attorney General pursuant to KRS 61.880 your handling of his requests to furnish him various documents and records and information in your custody. Mr. Miller's appeal was reassigned to the undersigned Assistant Attorney General for disposition on October 8, 1990.
In a letter to you dated July 17, 1990, Mr. Miller made the following requests:
A computer printout of all positions on boards, commissions or other organizations subject to appointment by the governor. As you may recall, you have provided this information before. I need the most updated version.
This should include the names of the appointees, position or title, hometown and date the appointment expires. If possible I would also like the date the person was appointed.
You responded to Mr. Miller in a letter dated July 25, 1990, and advised him as follows:
In response to your request of July 17, for a computer printout on boards, commissions or other organizations subject to gubernatorial appointment, this is to inform you that I am denying your request. As you are aware, we made available to you a similar computer printout approximately a year ago. Since that time we have furnished the Herald-Leader with a copy of every executive order the Governor has issued appointing anyone to a board, commission or similar organization. In other words, we have already given you what you are now asking for. It would take several hours for my secretary to reformulate and make current the computer list. I am therefore denying your request pursuant to KRS 61.872(5).
In Mr. Miller's letter of appeal to this office, he acknowledges that he was given a list about one year ago. He states that there have been many changes and it is unrealistic to expect him to keep up with those changes on a day-to-day basis. He rejects your claim that an excessive amount of time would be required to "reformulate and make current the computer list." He concludes by stating in part that, "Finally, I do not think it is unreasonable to ask a public official to keep adequate records."
OPINION OF THE ATTORNEY GENERAL
At the outset, this Opinion will deal with one misconception and one misapplication of the Open Records Act.
Mr. Miller maintains that a public official should keep adequate records. While that is certainly true, the adequacy of the records is not a factor under the Open Records Act which is primarily concerned with the accessibility to existing public documents of public agencies.
In your letter to Mr. Miller of July 25, 1990, you cited KRS 61.872(5) in support of your denial of his requests. That statutory section permits a public official to refuse to allow inspection if to do so places an unreasonable burden on the public agency. Refusal under this section, however, must be sustained by clear and convincing evidence.
In this particular situation, you have merely invoked the statutory provision. Refusal to permit inspection has not been documented by clear and convincing evidence. The statutory exception has been improperly invoked as the public agency has not demonstrated that the requests place an unreasonable burden on the agency or that the requests are intended to disrupt other essential functions of the public agency. See OAG 89-79, copy enclosed, at page four.
The key issue here is whether the list of names and appointments existed at the time of Mr. Miller's request. Apparently, it did not as he requested a revised and up-to-date list of the one he had received approximately one year earlier.
In OAG 86-51, copy enclosed, we dealt with requests for information and the compilation of lists and said in part at page four of that Opinion:
In OAG 79-547 we discussed the difference between a request for information and a request for inspection of records and said: 'The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law.' And in OAG 76-375 we said it is not necessary for an agency to make a list of items from its records if such a list does not already exist. When an agency has compiled statistics, the documents containing the statistics should be made available for public inspection and copying; but if no such compilation has been made, a requester cannot require the agency to make one.
If an up-to-date list containing the material requested by Mr. Miller had been compiled at the time of his request, that list should have been made available for public inspection and copying. Such a list, however, need not be compiled merely to satisfy a request for documents under the Open Records Act. A person does not have a right to require a list to be made from public records where such a list does not already exist. See OAG 80-308, copy enclosed, at pages 2-3, and OAG 76-375 copy enclosed, at page three.
The 1990 regular session of the General Assembly enacted legislation dealing with public access to governmental databases which has been codified as KRS 61.960 to KRS 61.975 and KRS 61.992. "Database" means records, electronically stored, that can be retrieved by a computer. Public records stored on a database which are subject to KRS 61.870 to KRS 61.884 (the Open Records Act) which are not requested for commercial purposes are available for public inspection.
This new legislation which became effective July 13, 1990, prior to the date of your request, would not be applicable unless the material requested was part of a database at that time.
Mr. Miller has received the pertinent information to the extent that he has been supplied with notices of individual appointments. He has not been supplied with the information in the format he desires as he has not been furnished with an up-to-date computerized listing of the appointments to the various boards and commissions by the Governor. He is only entitled to such a computerized listing when such a list is actually in existence or when it is part of a database. The Open Records Act does not require a public agency to prepare a listing merely to satisfy a request under the Open Records Act and when there is no such list in existence when the request is made.
As required by statute, a copy of this Opinion is being sent to the appealing party, Mr. John Winn Miller. Since portions of this Opinion set forth findings and conclusions adverse to positions taken by the appealing party and the public agency, either or both of them may challenge this Opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.