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 Purchase Area Sexual Assault Child Advocacy Center violated KRS 61.880(1) by failing to respond to James Potter's December 7, 2011, request for records and information relating to forensic investigators employed by the Center from July to October 2008, it did not violate the Act in belatedly refusing to honor his request to the extent he sought information rather than records.
On December 7, Mr. Potter requested that the Center produce:
any and all records that would identify if a Forensic Interviewer was employed by the Center during the time period of July 2008 through October 2008, and provide their name(s) and specify if they are qualified as required by 922 KAR 1:440 Section 3(5)(c), and specify any additional position held at the same time . . . .
Mr. Potter received no response to this request or to his December 20, 2011, "Request of Status of KRS 61 request to inspect public records, " prompting him to initiate an open records appeal to this office.
Shortly after Mr. Potter filed his open records appeal, the Center denied his request as an improperly framed request for information. In support, the Center cited KRS 61.872(2) which provides, in part, that "[a]ny person shall have the right to inspect public records. " In correspondence directed to this office on behalf of the Center, the Kentucky Association of Sexual Assault Programs, Inc., reaffirmed the Center's characterization of Mr. Potter's request as a request for information rather than records, but expressed the desire to "deal with this matter as expediently as possible." Through KASAP the Center provided Mr. Potter with three documents identifying Lori Brown as a forensic interviewer. Assuming Ms. Brown was the only forensic investigator employed by the Center from July to October 2008, these records satisfied the first part of his four part request, thereby mooting the question whether that part of his request was improperly framed as a request for information. 40 KAR 1:030 Section 6. 1
We agree with the Center's characterization of the remainder of his request as a request for information. Mr. Potter asked that the Center "provide [the ] names [of forensic interviewers it employed from July to October 2008] . . . specify if they [were] qualified as required by 922 KAR 1:440 Section 3(5)(c), and specify any additional positions held at the same time . . . ." While we understand the difficulty of "precisely describing" records that are "readily available within the agency," Mr. Potter is required to do so if he wishes to access the records by receipt of copies through the mail. KRS 61.872(3)(b). 2 He cannot transform a request for information into a request for precisely described public records by prefacing his information request with the phrase "any and all records."
The Open Records Act does not impose a records creation requirement on public agencies. This principle of law is well-established and a substantial number of open records decisions confirm it. See, e.g., 95-ORD-48; 96-ORD-139; 97-ORD-56; 02-ORD-112. The Act requires disclosure of nonexempt "books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency. " KRS 61.870(2). Assuming the Center does not maintain a list of forensic interviewers for the referenced period, a record confirming the interviewer (s)'s qualification under 922 KAR 1:440 Section 3(5)(c), or a record identifying other positions the interviewers held during the referenced period, it cannot honor Mr. Potter's request unless it creates a record containing the information he seeks. Governing precedent makes clear that the Center is not obligated to do so, and its refusal to do so did not constitute a violation of the Open Records Act.
Nevertheless, we find that the Center violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Potter's December 7 request. The Center acknowledges its unfamiliarity with the requirements of the Open Records Act and commits to issuing "more timely responses . . . in the future." Given the Center's explanation for the delay in responding to the request and its commitment to issue timely open records responses, we trust that such violations will not recur.
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.
Distributed to:
James Potter, # 237268Lori Wells BrownMarylee Underwood
Footnotes
Footnotes
1 40 KAR 1:030 Section 6 states:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
2 KRS 61.872(3)(a) and (b) provide:
(a) During the regular office hours of the public agency; or
(b) 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.