Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor's response to the February 19, 2005 open records request of James L. Hood for "[a] description of software that manipulate personnel data describing hires, advancements, and disciplinary actions by age, race and gender, or in the absence of such, the software itself, minus all access information," violated the Open Records Act. For the reasons that follow, we find that the response did not violate the Act.
By letter dated February 25, 2005, Michael T. Alexander, Deputy General Counsel, Office of the Governor, responded to Mr. Hood's request, advising him that there were no records responsive to his request. In response to Mr. Hood's additional request for the "name of that office designated as the custodian of records for such records referenced in # 1 above for the period 2001-2002 and presently," Mr. Alexander advised that there were no records responsive to that request.
In response to a letter from Mr. Hood requesting reconsideration of his February 19, 2005 open records request, John C. Roach, General Counsel, Office of the Governor, again advised that the Office did not have records responsive to his request and was unaware of which office, if any, would possess documents responsive to his request.
Shortly thereafter, Mr. Hood initiated the instant appeal. In his letter of appeal, he stated, in part:
Of course the Governor's Office itself does not have the requested records, but it exercises full authority over the office that does have them and the office that is the official custodian. To not direct the appropriate official to respond and to not identify the official custodian that is to respond effectively denies access to the requested open record.
After receipt of notification of the appeal and a copy of Mr. Hood's letter of appeal, Mr. Alexander provided this office with a copy of his response to Mr. Hood addressing the issues raised in the appeal. In his response, he advised:
As previously indicated, there are no records/software in the Office of the Governor responsive to your request. However, in an effort to assist you in obtaining the information you seek, I contacted the Personnel Cabinet and the Commonwealth Office of Technology ("COT"). These agencies have indicated that they have no records/software in their possession responsive to your request. (See Attached) Although COT has indicated that, on occasion pursuant to a state agency's request, COT might put "data into a file and do ad hoc SAS reports ...", please know that a public agency is not obligated to create records to satisfy a particular open records request. (02-ORD-112) Moreover, a public agency is not obligated to honor a request for information, as opposed to a request for specifically identified records. (02-ORD-213) I have no knowledge or information concerning any other state agency that might be able to assist you with this request.
In response to Mr. Alexander's e-mail inquiry to COT, Harris Dodd, General Counsel, by e-mail, advised:
Got the last response for which I was waiting. It pretty well sums up what all our Executive Directors said:
"There is NO related software in or supported by COT that 'manipulates' personnel data. We might put the data into a file and do ad hoc SAS reports or something on request. This is strictly a question for Personnel.
In response to the same e-mail inquiry from Mr. Alexander to the Personnel Cabinet, Mark D. Honeycutt, Executive Director, Office of Legal Services, by e-mail, advised:
I'm vaguely familiar with the request as a copy was forwarded to me by Finance. Any software that exists would be maintained by COT as enterprise wide software. Our system was purchased from McCormick and Dodge in 1980 or '82 and is based on COBOL programming. Reports from the mainframe are generated through COBOL and SAS programming, but I wouldn't hazard a guess how to describe it, except as ancient.
In a reply to Mr. Alexander's response, Mr. Hood asserts, in relevant part, that the Office of the Governor did not address his request that he be provided the name of the office designated as the custodian of the records he requested.
We are asked to determine whether the responses of the Office of the Governor violated the Open Records Act. For the reasons that follow, we conclude they did not.
Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Office of the Governor discharged its duty under the Open Records Act by affirmatively so advising Mr. Hood. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
Mr. Hood acknowledged in his letter of appeal that the Office of the Governor did not have the requested records, but asserted it had authority over the office that did have the records and the office of the official custodian and should direct that office to respond to his request.
The Office of the Governor does not serve as a central clearinghouse for all open records requests made to state agencies. Pursuant to KRS 61.876, each public agency is required to adopt rules and regulations in conformity with the Open Records Act which shall include, among other things, the principle office of the agency, its regular office hours and the title and address of the official custodian of the agency's records. The open records request should be submitted to the official custodian of the agency that has or is most likely to have the record being sought.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The Office of the Governor affirmatively advised Mr. Hood that it did not have records responsive to his request. The response of the public agency was proper and consistent with the provisions and requirements of the Open Records Act insofar as the agency cannot make available for inspection a document which it does not have in its possession or custody. The only additional duty of the public agency in such a situation is to advise the requesting party who does have the document in question, if such information is known to the agency. KRS 61.872(4); 03-ORD-225.
In an effort to determine and locate the agency which might have the requested records, described generally as software that manipulates personnel data, Mr. Alexander contacted two agencies, COT and the Personnel Cabinet, two agencies that might logically have the requested records. Both agencies responded that it did not have records responsive to Mr. Hood's request and he was so advised. Under these facts, we find that the Office of the Governor did not violate the Open Records Act.
In a reply to this office and to Mr. Alexander's response, Mr. Hood asserts that the requested records exist. As noted above, COT and the Personnel Cabinet, in response to the inquiry from the Office of the Governor as to the existence of the records as described in Mr. Hood's request, stated that the requested records did not exist. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, 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.
Mr. Hood asserts the requested records exist, but the COT and Personnel Cabinet affirmatively assert they do not exist. However, those agencies are not parties to the instant appeal. The Office of the Governor is a party to this appeal and has affirmatively stated that it does not have the requested records, a fact that Mr. Hood acknowledged in his letter of appeal, and the agency discharged its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. As noted, it is not within our statutory charter to investigate in order to locate documents that the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such a disparity. Because the foregoing is dispositive of the appeal, we do not address other arguments raised.
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.