Request By:
Lilly M. Adkins
The Big Sandy News
P.O. Box 1314
Inez, KY 41224Marlena Slone
Occupational Tax Administrator
P.O. Box 309
Inez, KY 41224Kennis Maynard
Martin County Attorney
Main Street, Courthouse
P.O. Box 615
Inez, KY 41224
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether Marlena Slone, the Martin Co. Occupational Tax Administrator, violated the Kentucky Open Records Act in denying the request of Lilly Adkins, a reporter for The Big Sandy News, for "a list of all businesses [and] individuals to whom a B & O tax form was sent and the names of all businesses [and] individuals who have paid the tax." Because the information requested does not exist in the specified format and Ms. Slone is not required to compile such a list solely for the purpose of satisfying an open records request, we conclude that the actions of Ms. Slone relative to Ms. Adkins's request do not constitute a violation of the Act.
Ms. Adkins submitted the subject request on October 21, 2003, indicating that the requested information would be used for an upcoming article in The Big Sandy News . In a timely response, Kennis Maynard, the Martin County Attorney, denied Ms. Adkins's request on behalf of Ms. Slone, advising her that "the B & O tax is only in the early stages of implementation and as a result, the tax administrator is currently engaged in the major task of establishing a manageable procedure for collecting the tax and creating a suitable record keeping system." As further explained by Mr. Maynard, "the office responsible for administration of the B & O tax does not compile a list such as the one [Ms. Adkins has] requested and Kentucky law does not require public offices to research and organize information from numerous records to generate a list which would satisfy a request to inspect."
On appeal, Ms. Adkins requests our assistance in gaining access to this "public information." In a supplemental response received by this office after Ms. Adkins initiated the instant appeal, Mr. Maynard provided the following context for his denial of her request:
The B & O tax/license fee was enacted by the Martin County Fiscal Court on July 1, 2003. It was not until July 23, 2003, that the tax administrator was hired. Because of some political controversy over her hiring, she was unable to perform any duties regarding the implementation and enactment of the B & O tax. She was officially hired on July 29, 2003.
To initiate the implementation, the tax administrator called numerous businesses and sent out tax packets once the address of the business was confirmed. Also, the county informed businesses and individuals in the local paper about the tax being implemented and advised these persons to contact the tax administrator. Additionally, the tax administrator contacted the Revenue Cabinet and after several agreements, received the names of businesses to which she had not yet sent the information packets.
During the whole information gathering process, there was no master list compiled. In order to obtain the information requested, it would be necessary to compile such a list from post-it notes, scraps of paper and phone messages.
Citing OAG 91-12, OAG 89-45, OAG 91-100 and OAG 88-79, Mr. Maynard correctly observes that "a requester cannot require an agency to create a document that does not exist." Further, "the tax administrator is the sole employee responsible for the administration of this scheme and the amount of work required for implementation has been substantial." She is currently in the process of "entering data into a computer system to establish a manageable procedure for collecting the tax and creating a suitable record keeping system." According to Mr. Maynard, "[i]t is possible that at some point in the future there will be a system that could make the names of the individuals obligated to pay the taxes/license fee available to public inspection. " Although he concedes that "an orderly implementation" consisting of a master list identifying those to whom an information packet was mailed "would be an ideal manner in which to conduct business," he explains that no such list was compiled. 1
Upon receiving a copy of Mr. Maynard's response, Ms. Adkins faxed a letter to this office in which she elaborated upon her reason for requesting the list:
I have requested the information because the people in this county who do pay the tax, myself included, want to know if the tax is being paid equally. If each of the businesses and individuals employed in Martin County are required to pay the tax, how can it possibly be an advantage for either one, unless of course some of the businesses or individuals are not being required to pay?
This is the reason for the initial request and no other motive exists. The people in Martin County have the right to know that each business and each individual employed in the county is being treated fairly and that all are being required to pay the tax equally. Also, if they haven't compiled a list to whom they have sent a packet and they don't have a list of the people who have paid, how can that be fair and how can they enforce collection when they don't really know who has paid?
Consistent with this reasoning, she argues that "[t]here must be some form of check[s] and balance[s] to [e]nsure fairness."
Early on, the Attorney General clarified that "[t]he purpose of the Open Records Act is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Accordingly, this office has consistently recognized that public agencies are not statutorily obligated to honor requests for information as opposed to requests for public records. In 93-ORD-51, for example, we held that the Open Records Act:
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 [Act] provides for inspection of reasonably identified records.
Id., p. 4; 02-ORD-174, p. 1; 02-ORD-165, p. 4. Because Ms. Adkins is requesting that Ms. Slone compile the information to which she is requesting access, her request is properly characterized as a request for specific information as opposed to a request to inspect "reasonably identified records."
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.
93-ORD-51, p. 4; 02-ORD-174, p. 2. 2 "It is not necessary for an agency to make a list of items from its records if such a list does not already exist." OAG 76-375. While the agency should make the records containing the requested information available for public inspection and copying, a requester cannot require the agency to compile the information in a certain format. OAG 91-12, p. 5; OAG 82-279, p. 1. Rather, "'what the public gets is what [the public agency has] and in the format in which [the agency has] it.'" 96-ORD-251, p. 1, citing OAG 91-12, p. 4. We believe this precedent is dispositive of the question presented.
According to Mr. Maynard, the list requested by Ms. Adkins does not yet exist. We have no reason to question the truthfulness of this assertion. At page 4 of 93-ORD-51, we reiterated the well-established 3 principle that "a public agency cannot afford a requester access to a document which does not exist." See 94-ORD-140. We also emphasized that "it is not our duty to investigate in order to locate documents which the requesting party maintains exist[], but which the public agency states do not exist." 93-ORD-51, p. 4.
Based on the foregoing authority, we conclude that Mr. Maynard properly responded to Ms. Adkins's request by advising her that the information requested is not available in an existing document. In this regard, his 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. " 93-ORD-51, p. 4. To summarize, Ms. Slone cannot make available that which does not exist nor is she obligated to create a document that does not already exist to satisfy an open records request. 93-ORD-51; OAG 91-12.
As acknowledged by Mr. Maynard, however, compiling a master list containing the names of those against whom the tax is assessed would be an "ideal" method by which to ensure "orderly implementation" of the tax/license fee and, therefore, Ms. Slone might develop such a system "at some point in the future." Since Ms. Slone is currently in the process of "creating a suitable record keeping system," development of a "master list" seems inevitable. Given the uncertainty expressed by both parties as to the accessibility of its contents, we have enclosed a copy of 00-ORD-117 4 for their reference.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 Citing KRS 61.878(1)(k) and (1)(l), Mr. Maynard speculates that the requested information might be exempt from disclosure, especially when the request is viewed in light of the terms of the Exchange of Information Agreement entered into by Ms. Slone and the Kentucky Revenue Cabinet. He further contends that both the amount of the tax paid by a business or individual and the status of an account "may be subject to the exemption of KRS 61.878(1)(c)" since "the ordinance itself provides for delinquency procedures" and disclosure of such information may give businesses a "competitive advantage [over] other competitors." In his view, "the newspaper is attempting to circumvent the delinquency procedures." Our resolution of the threshold issue regarding compilation of the requested information renders further elaboration as to these secondary issues unnecessary.
2 As emphasized in 02-ORD-174, the referenced decisions were premised on the language of the governing statutory provisions including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1)(providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2)(providing that "[a]ny person shall have the right to inspect public records ") (emphasis added). Accord 01-ORD-247; 99-ORD-71.
3 As we observed in 93-ORD-51, this office has repeatedly held that such a request cannot be honored "inasmuch as an agency cannot furnish access to documents that are not in its possession. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203."
4 In that decision, we clarify the implications of a confidentiality agreement in the current context.