Request By:
[NO REQUESTBY IN ORIGINAL]
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 Pulaski County Schools violated the Open Records Act in its responses to open records requests made by Robert Cummins. On September 22, 2000, Mr. Cummins made the following three separate requests:
1. This is an Open Records request for information concerning the salaries, including all added compensation, and the nature of such added compensation, paid or payable to Ms. Marlene Haney, Mr. Tim Eaton, and Mr. Howard Wallace for the school fiscal year 2000-2001.
2. This is an Open Records request for information concerning the salary of Mr. Bert Minton for service as Superintendent of Pulaski County Schools.
3. This is an Open records request for information concerning the consulting contract to Mr. Bert Minton for services to be provided by Mr. Minton at some time after September 30, 2000.
By letter dated September 29, 2000, Larry G. Bryson, attorney for the Schools, responded to Mr. Cummins' requests. In his response, Mr. Bryson acknowledged receipt of the requests on September 26, 2000 and advised Mr. Cummins that Mr. Minton and Mr. Eaton were out of the office and for that reason he was responding to the requests in order to comply with the open records requirement that a public agency respond to a request within three business days after its receipt. He further advised Mr. Cummins that the Schools would be making a more complete response within the next few days after he had a chance to discuss the requests with others in the Schools who were more familiar with the information that he had requested.
By letter dated October 6, 2000, Mr. Bryson provided Mr. Cummins with a supplemental response. In this response, Mr. Bryson, stated in part:
Other than your request for the "base salary, " of each of these individuals, it is unclear to me as to the information that you are requesting. I know of no requirement, under Kentucky law, that a public agency guess at the information that you are requesting and provide this to you, or that the school district extract this information from many documents that may contain information that you seek. As I have been made aware, this information probably does not exist in any single document of which you can be provided a copy.
However, as mentioned above, it is unclear to me as to the exact information that you are requesting, other than information of the "base salary" of these individuals.
Kentucky law does not require that copies be made of this information and mailed to you since you are a resident of Pulaski County. You may come to the Pulaski County Board of Education offices between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday and review these documents and request copies, which will be made for you at an expense of $ .10 per page copied. It will be best, although not required, that you make prior arrangements with Superintendent Eaton for this, so he will have a staff person to assist you in collecting information that you wish to review. The information that you have requested may have to be collected from different departments within the Central office.
You have also requested a copy of a consulting contract between the Board and Mr. Minton "with added information as to the amount of payment per day, or per contract period, plus the term of the contract(s) awarded Mr. Minton."
Although the Pulaski County Board of Education authorized the Chairman of the Board to enter into such a contract, the terms of this contract have not been determined at this time and no such contract exists at this time, therefore the information does not exist.
We are asked to determine whether the response of the Pulaski County Schools violated the Open Records Act. For the reasons that follow, we conclude that the responses were proper and consistent with the requirements of the Act and prior decisions of this office.
To begin, the Attorney General has long recognized that "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." OAG 79-547, p. 2. Although information may be gleaned from these records, it is a public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that, which is set forth in public records. OAG 87-81, p. 5 (holding, "Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information"). The Pulaski County Schools was therefore not required to compile information to meet the parameters of Mr. Cummins' request.
KRS 61.872(3)(a) and (b) establish the guidelines for records access under the Open Records Act. That statute provides:
1. A person may inspect the public records;
a. During the regular office hours of the public agency; or
a. By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(Emphasis added.) The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. A requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. Since he lives in Pulaski County, Mr. Cummins could clearly be required to view the requested records at the Pulaski County Board of Education offices before obtaining copies. 99-ORD-151. Thus, the agency's response in this regard was not a violation of the Open Records Act.
This office has also consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The Pulaski County Schools advised Mr. Cummins that it could not provide him with a copy of a consulting contract between the Board and Mr. Minton, as no such contract yet existed. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the response of the Pulaski County Schools relative to the requested contract was in accord with the requirements of the Open Records Act and prior decisions of this office.
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.