Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal and the Attorney General being sufficiently advised, we find that although the Menifee County Fiscal Court made a good faith attempt to honor Carol Gamble's May 11, 2010, request for "[a]ll salaries of all county employees as of September 1, 2009 . . . [including] all full time, part time, contract, and temporary employees" by providing her with an April 1, 2010, printout rates and hours worked for all fiscal court employees and the Menifee County budget for the fiscal year ending on June 30, 2010, the fiscal court's response was deficient insofar as her request focused on fiscal court employee salaries "as of September 1, 2009. " While we commend the Menifee County Fiscal Court for its prompt disposition of Ms. Gamble's request, we find that the fiscal court must locate, retrieve, and make available for her inspection and copying payroll records for the designated time frame. Until it has done so, its obligations under the Open Records Act will not be fully discharged.
Clearly, the fiscal court attempted to honor Ms. Gamble's request by releasing the most recent printout of its payroll records. Ms. Gamble was dissatisfied with this response because it related to the wrong time frame and because it reflected rates and hours worked rather than annual salaries. She objected to the annual salary information that appeared in the annual budget because the salary information did not identify the corresponding employees. It is not incumbent on the fiscal court to create a record that does not already exist to satisfy the parameters of a request. If no record exists that identifies all fiscal court employees by name, along with their annual salaries, the fiscal court is not required to create one. See, generally, 08-ORD-090 and authorities cited therein for the proposition that "what the public gets is what [the agency] has and in the format in which [the agency] has it." (Copy enclosed.) Ms. Gamble cannot compel the creation of a record that does not exist. KRS 61.872(1).
Nevertheless, the Menifee County Fiscal Court must comply with Ms. Gamble's request, as framed, to the extent feasible. She did not request the most recent fiscal court payroll records, but those records "as of September 1, 2009." In the absence of any argument that the September 1, 2009, payroll records cannot be produced, the fiscal court must locate, retrieve, and make those records available to Ms. Gamble so that she can calculate the annual salaries of the fiscal court employees, as of the specified date, based on their hourly rates.
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.
Carol GambleHershell L. SextonGreg L. Hall