Request By:
Kenneth Isaacs/Jackson County Board of Education
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Jackson County Board of Education relative to Mr. Kenneth Isaacs' February 20, 1993, request to inspect certain documents purportedly in the Board's custody. Those records are identified as:
1. Grade distribution for Lesha Cromer's first period, eighth grade, pre-algebra class for the first nine week grading period;
2. The "exact starting date and the exact ending date" of the first nine week grading period at Jackson County Middle School;
3. Grade distribution for Lesha Cromer's first period, eighth grade, pre-algebra class for the second nine week grading period;
4. The "exact starting date and the exact ending date" of the second nine week grading period at Jackson County Middle School;
5. The 1992-93 school calendar used at Jackson County Middle School;
6. The "exact number" of Chapter One students in Lesha Cromer's first period, eighth grade, pre-algebra class;
7. Jackson County Middle School's three year Department of Education Chapter One plan;
8. Brian Cunigan's daily schedule.
Mr. Isaacs' daughter is a student at Jackson County Middle School, and his request was made under the Kentucky Open Records Law.
On behalf of his client, the Jackson County Board of Education, Mr. D. Bruce Orwin responded to Mr. Isaacs' request on February 24, 1993. Although he released the school calendar, the Chapter One Plan, and Brian Cunigan's daily schedule, Mr. Orwin advised Mr. Isaacs that the Board could not honor his request for grade distributions and the "exact starting date and the exact ending date" of the first and second nine week grading period. Mr. Orwin explained that no documents exist which satisfy those portions of Mr. Isaacs' request.
In his letter of appeal to this Office, Mr. Isaacs disputes Mr. Orwin's response. With respect to grade distributions, he maintains that the school's principal, Mr. Gene Lake, previously indicated that "he had counted the number of each letter grade, " and that the information could be obtained from the teacher's grade book "in a minute or two." Mr. Isaacs notes that a list of "A" and "A and B" students is prepared for the school honor roll. In response to Mr. Orwin's assertion that no document exists which evidences "the exact starting date and the exact ending date" of the first and second nine week grading period, Mr. Isaacs states that he received this information from another Jackson County school by telephone "in a matter of seconds."
Mr. Isaacs questions the authenticity of the school calendar released to him, observing that it is not the "standard school calendar that is available at the beginning of the school year," nor is it the calendar "that the principal used when we discussed this topic." He also challenges Mr. Orwin's assertion that no record exists which reflect the total number of Chapter One students in Lesha Cromer's first period pre-algebra class, noting that there must be a record since each parent must sign a form permitting his or her child to participate in the program. Finally, he challenges the accuracy of Brian Cunigan's schedule, which Mr. Orwin released to him, pointing out a number of inconsistencies between the record itself and oral representations made by Principal Lake.
We are asked to determine if the Jackson County Board of Education, through its attorney, Mr. Orwin, properly responded to Mr. Isaacs' request. For the reasons set forth below, we conclude that Mr. Orwin's response was entirely consistent with the Open Records Law.
This Office has repeatedly recognized that the Kentucky Open Records Law was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-335, OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the Law provides for inspection of reasonably identified records. Mr. Isaacs' request may be characterized as a request for specific information, as opposed to a request to inspect reasonably described records. He asks that information relating to grade distribution and the school calendar be compiled.
At page 3 of OAG 87-84, the Attorney General observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but 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.
It is the opinion of this Office that Mr. Orwin properly responded to Mr. Isaacs' request for information relating to grade distributions and the school calendar by advising him that the information requested is not available in an existing document. Mr. Orwin's position is entirely consistent with the principle that the Open Records Act was not intended to serve as a means of commanding compilation and production of specific information.
Mr. Orwin's response is also consistent with the principle that a public agency cannot afford a requester access to a document which does not exist. In a long line of opinions issued by this Office, we have held that such a request cannot be honored inasmuch as an agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exists, but which the public agency states do not exist. As we observed at page 5 of OAG 86-35, "This Office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." We believe that these opinion are dispositive of that portion of Mr. Isaacs' appeal pertaining to grade distribution and the school calendar.
Mr. Orwin's response that these records do not exist was entirely proper assuming that his assertions represent an accurate statement of fact. The Jackson County Board of Education cannot make available that which does not exist or that which it does not have. Nor is the Board obligated to create a document which does not already exist to satisfy an open records request.
We decline to comment on the apparent inconsistencies in record keeping pointed out by Mr. Isaacs. The Open Records Act regulates access to public records, and not records management. OAG 91-220. Our decision must therefore be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the documents in its possession at the time of the request? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220. Mr. Orwin's response was sufficient and proper under the Open Records Act.
KRS 61.991(2)(a) establishes a penalty for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act. There is no proof in the instant appeal that existing documents were concealed or destroyed. Such evidence, if it exists, should be presented to the local prosecutorial authorities, who may proceed to a determination of this matter. The Attorney General is not, however, empowered to render a decision on this question in an open records appeal.
Mr. Isaacs may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.