Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Finance and Administration Cabinet relative to the request of Brenda Pemberton for copies of "the nego[ti]ations between the state and health insurance company (Bluegrass Family Health)" violated the Kentucky Open Records Act. Although the Cabinet violated KRS 61.880(1) in failing to notify Ms. Pemberton in writing within three business days of its decision, the Cabinet mitigated this error by attempting to clarify precisely which records were being sought. As to those records which do not exist, the Cabinet ultimately discharged its statutory duty by affirmatively indicating as much to Ms. Pemberton. Assuming the Cabinet does not possess any records which are responsive to Ms. Pemberton's request as clarified aside from the RFP responses, the Cabinet is not obligated to compile a list or create such a record. With the noted exception, the actions of the Cabinet were consistent with the Open Records Act.
On September 8, 2004, Ms. Pemberton submitted her request to the Cabinet via facsimile. Specifically, Ms. Pemberton requested "just the main neg[otiations]-not all the finalizing[.]" Having received no written response, Ms. Pemberton initiated this appeal by facsimile dated September 23, 2004. As explained by Ms. Pemberton:
I received two calls from the law office who stated they were in charge of those records. These calls were made to my workplace. I received one call from the Dept. of Transportation. This call was to my home.
In light of these events, Ms. Pemberton now asks this office to "resolve this issue" for her by clarifying to the "appropriate dept." that she is requesting "the initial negotiations between [the] state and [health insurance carrier] Bluegrass Family Health."
Upon receiving notification of Ms. Braxton's appeal from this office, J. Gary Bale, General Counsel, responded on behalf of the Cabinet. Acknowledging receipt of Ms. Pemberton's request, Mr. Bale is "unaware of any denial of such to date which has been issued by this agency." In fact, the Cabinet has "been attempting to obtain oral clarification of precisely what documents [it has] which can be provided to Ms. Pemberton." According to Mr. Bale:
The health insurance contracts have been executed, so the bid files on such are subject to an Open Records request. Thus, we could provide the formal written RFP [request for proposal] response(s) [submitted] by Bluegrass Family Health and/or the final contract documents, but how we got from the former to the latter was through oral, competitive negotiations with Bluegrass (and the other carriers) which would not be a proper Open Records disclosure. Certainly, the law does not require us to produce and issue a currently non-existing report summarizing the oral negotiations between our Office of Material and Procurement Services and the various carriers (even if the substance of such, if it existed, would be subject to production). (Emphasis added).
On both counts, the Cabinet's position is correct. However, the Cabinet's initial response was deficient from a procedural standpoint.
As a public agency, the Cabinet must comply with both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Of particular relevance here, "the public agency must issue a written response within three days of receiving a request." 04-ORD-183, p. 3. However, a "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Edmondson, supra, at 858; 01-ORD-183, pp. 2, 3; 04-ORD-183. It necessarily follows that failing to respond, as the Cabinet did here, constitutes a procedural violation of the Act. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Here, the Cabinet has mitigated this error by communicating with Ms. Pemberton in an effort to identify the records to which Ms. Pemberton is seeking access as reflected by the evidence of record. Given the somewhat vague nature of Ms. Pemberton's request, the Cabinet's request for clarification was reasonable; such a response is not properly characterized as a denial. See 04-ORD-083; 03-ORD-067. KRS 61.872 governs access to public records. Pursuant to KRS 61.872(3):
A person may inspect the public records:
In other words, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. 1 Therefore, a requester that 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. Id. As in this case, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5; 04-ORD-011. 2 In construing this provision, the Attorney General has observed:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail.
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific and unequivocal terms the records he wishes to access by mail.
03-ORD-067, p. 5, citing 97-ORD-46, p. 3; 04-ORD-011.
On appeal, Ms. Pemberton asks this office to clarify that her request is for copies of "the initial negotiations between" the state and Bluegrass Family Health. (Emphasis added). Judging by the Cabinet's response, this description contains the requisite precision but no responsive records are "readily available within the agency" with the possible exception of the "formal written" responses to the RFP. Because the Cabinet has conceded that the formal responses to the RFP became subject to inspection upon execution of the health insurance contracts, further elaboration as to the accessibility of those records is unwarranted. 3 Upon receiving "advance payment of the prescribed fee, including postage" as provided by KRS 61.874(1), the Cabinet must provide Ms. Pemberton with a copy of the response submitted by Bluegrass Family Health. 4 See 04-ORD-175, pp. 6-12 (recognizing that KRS 61.878(1)(c)1. had generally been construed as not applying to bid proposals but once the bids are open and a vendor has been selected, bid proposals which contain "secret commercial valuable plans and formulas" may qualify for exclusion under this provision), a copy of which is attached hereto for the parties' reference, for the analysis employed by this office in determining whether "bid proposals," or sections thereof, must be disclosed. In light of this determination, the remaining question is whether the Cabinet has discharged its statutory duty relative to the "initial negotiations" between the Commonwealth and Bluegrass Family Health which were apparently not reduced to writing.
As long recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 99-ORD-198; 98-ORD-200; OAG 91-112; OAG 87-54; OAA 83-111. Said another way, a public agency cannot afford a requester access to records that it does not have or which do not exist. 03-ORD-205, p. 3, citing 99-ORD-98. Rather, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 10. Such is not the case here.
However, the Cabinet's inability to produce the requested records due to their apparent nonexistence "is tantamount to a denial," of Ms. Pemberton's request, and it was incumbent on the Cabinet to notify Ms. Pemberton that no records fitting the description provided exist "in clear and direct terms." 02-ORD-144, p. 3. (Emphasis added). While it is obvious that an agency cannot furnish that which it does not have or which does not exist, "a written response that does not clearly so state is deficient." Id. Accordingly, the Attorney General has held that a public agency's response violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Cabinet ultimately did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
While the total lack of documentation is surprising given the inherently complicated subject matter, the limited function of this office in the context of an open records appeal is to review the course of action taken by a public agency, not to locate the documents that a party has requested to inspect. 03-ORD-205, p. 3, citing OAG 86-35, p. 5. "We are not empowered to go beyond the written record to determine whether agency employees and officials purposefully attempted to avoid public scrutiny by failing to create a paper trail." 04-ORD-059, p. 4, citing 00-ORD-16, p. 5. In other words, it is not "incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Ms. Pemberton has not demonstrated that the Cabinet is legally obligated to generate and maintain records of the type requested nor has our research revealed any authority to that effect. Absent such authority, this office must conclude that the Cabinet did not violate the Act in this regard.
As correctly observed by the Cabinet, "the law does not require [the Cabinet] to produce and issue a currently non-existing report summarizing the oral negotiations" at issue. In short, the Open Records Act "has never been construed to require the creation of a record." 02-ORD-112, p. 4; 97-ORD-56; 96-ORD-139; 95-ORD-48. To the contrary, this office has consistently held that a public agency is not obligated to compile a list or create a record to satisfy an open records request. 02-ORD-88, p. 2; 96-ORD-251; OAG 90-101; OAG 76-375. "'What the public gets is what [the public agency has] and the format in which [the agency has] it.'" 96-ORD-251, p. 1, citing OAG 91-12, p. 4. That being the case, the Cabinet did not violate the Act in declining to create a record summarizing the content of the "initial negotiations" between the Commonwealth and Bluegrass Family Health. Consistent with the foregoing, the Cabinet should disclose the response of Bluegrass Family Health as agreed and any existing records in its custody which are responsive to Ms. Pemberton's request.
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 At issue in 03-ORD-067 was whether the Jefferson County Clerk had subverted the intent of the Act in his disposition of a request for the name and zip code associated with a specified address. In finding no substantive violation, this office observed that a county clerk's office "is equipped to readily locate a deed if a precise description, namely deed book and page number, is provided." Id., p. 5. Likewise, the Cabinet is equipped to locate records which are responsive to Ms. Pemberton's request upon receiving clarification as to which of the potentially responsive records are being requested assuming such records exist. When a requester provides the clerk (or records custodian) with a sufficiently detailed description, "the clerk [custodian] is required to mail [the requester] a copy of the deed [specified records] upon prepayment of reasonable copying charges not to exceed ten cents per page and postage charges." Id. However, if the requester (Ms. Pemberton) is unable to provide the requisite identifying information, it is not incumbent on the clerk (or records custodian) "to make extraordinary efforts to identify, locate and retrieve the records in order to copy and mail [the records] to the [requester] ." Id., p. 5 (citation omitted).
2 In addressing the degree of specificity required, this office has recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request does not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
03-ORD-012, p. 3, citing 99-ORD-140, p. 6.
3 Because Ms. Pemberton has requested only the "initial negotiations, " it stands to reason that the "final contract documents," which are clearly subject to inspection, are not responsive to her request. (Emphasis added).
4 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Accordingly, the Cabinet may withhold those sections of the records which qualify for exclusion under one or more of the exceptions codified at KRS 61.878, but is obligated to separate the exempt material, articulate the statutory basis for withholding the record(s) or sections thereof, and provide Ms. Pemberton with copies of the nonexempt material. 03-ORD-064, p. 8.