Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Vocational Rehabilitation properly responded to Ms. Laura Atwood's open records request for:
all records concerning myself and maintained by the Department of Vocational Rehabilitation be released to me. Specifically, I request that all records in my case file, including case notes be released. I also request that all interagency memos, forms for providing services (including any electronic forms), other agency forms, vendorship forms, letters, and any and all agency records concerning provision of any and all services and/or related inquiries be released to me.
I also request that any additional records that are added after fulfilling this request be released to me on a monthly basis.
In a subsequent request, Ms. Atwood authorized and requested that all records concerning her and maintained by the Department be forwarded to her attorney.
In response to Ms. Atwood's letter of appeal, Don Hiatt, Assistant Director with the Department advised this office that both Ms. Atwood and her attorney have received a copy of her case record, pursuant to 34 CFR 361.38(c).
Ms. Atwood disputes that her request has been fulfilled. The Department has advised that it has made Ms. Atwood's case file available for her inspection and provided copies to her, as well as to her attorney. Under these circumstances, we conclude the Department has complied with the Open Records Act by providing Ms. Atwood with the records she requested. If there remain any records in dispute, the requester can initiate another appeal to this office or proceed directly to the appropriate circuit court. KRS 61.880; 61.882. In OAG 89-81, the Attorney General stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
The parties should continue to cooperate to resolve any differences or misunderstandings related to records sought by Ms. Atwood.
In Ms. Atwood's initial request, she asked that any additional records added to her to her case file after the Department fulfills her request be released to her on a monthly basis.
In 99-ORD-110, the Attorney General affirmed a line of decisions holding that "standing requests" for public records are not proper under the law, and need not be honored. In that decision, we concluded that the Bullitt County Sheriff need only honor requests for existing records, meaning records which have been "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by the public agency. No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that Ms. Atwood's request is prospective, the Department is not obligated to honor it.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.