Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet violated the Kentucky Open Records Act in the disposition of Mark Shouse's January 29, 2014, request "to inquire into" the "Rolling Road Block on I-65 South [b]etween the Hillview Exit and [t]he Bardstown Exit on 1/29/14." Mr. Shouse specifically asked for "the names and immediate supervisor of the drivers of the vehicles with the license Kentucky official plate numbers T9800, T0270, and T0302," as well as "the purpose of the blocking of traffic by the vehicles, who approved the actions, and the Kentucky Revised Statute or Kentucky Administrative Regulation which would allow such action which created a five mile backup in the traffic and blocked me from exiting since I was cut off by the T9800 vehicle while driving down the highway." By letter dated February 20, 2014, Records Custodian Ann Stansel responded on behalf of the Cabinet, advising that "[t]his was a moving operation performed by the Bullitt County Maintenance Crew for the purpose of filling potholes." Asserting that the Cabinet's response "does not address the scope of the request," Mr. Shouse initiated this appeal by letter dated February 21, 2014. Based upon the following, this office affirms the agency's ultimate disposition of Mr. Shouse's request.
Upon receiving notification of Mr. Shouse's appeal from this office, Special Assistant Todd Shipp elaborated upon the agency's position as follows:
KRS 61.870(2) defines 'public record' as all 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. The requesting applicant must describe the requested records with enough specificity to allow the public agency to identify and locate the records. 03-ORD-213, 03-ORD-12. [A] public agency is [not] obligated to create records to satisfy a particular open records request. 02-ORD-112, 97-ORD-56.
The reality of this matter is no document exists that reflects the identities of those driving particular vehicles on the work crew staffing a moving pothole repair operation by the Bullitt County Maintenance Crew. 1 It is regrettable that KYTC did not identify this fact to Mr. Shouse. We did answer his one question about the purpose of the delay.
In closing, Mr. Todd noted that Mr. Shouse was "extremely angry during this event. According to the District Five supervisor, it was [relayed] to him that Mr. Shouse confronted the crew. . . . It was only after he was informed that the Sheriff would be called that he left."
By letter dated March 14, 2014, Mr. Shouse belatedly specified that he was "requesting the time sheets recorded in any form, including the names of the Transportation Cabinet employees that worked that evening, and any internal communication planning and coordinating the rolling road block, including the people which were in charge of the event." 2 Mr. Shouse noted that the Cabinet "seems to be able to produce statements (which I never made) that were supposedly made by me but is unable to identify the employees that manned the rolling road block. " In fact, Mr. Shouse continued, "I never spoke with anyone face to face that evening. . . . After I blew my horn, one of the employees (in the best terms possible) 'flipped me off' and threatened me by yelling out of his window. My mistake may have been yelling back 'Come on[]' out the window." According to Mr. Shouse, after his vehicle was allowed to pass, he simply exited although one of the Cabinet vehicles followed him. Mr. Shouse stated that he wished a sheriff "had been present to address the aggressive behavior of one of the [C]abinet's employees. This is exactly part of the impetus of my letter." His belief is that the Cabinet "is trying to protect the misdeeds of its employees and trying to make the Cabinet a nameless and faceless entity."
Under Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), our analysis does not turn on the purpose for which the request is made or the identity of the requester. See 10-ORD-062 (neither the identity of the requesting party nor his purpose in submitting a request is legally relevant). Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this question, the Attorney General has long recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. 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 [nonexempt] 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.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky 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.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, 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), validates this position.
In other words, the Cabinet is not statutorily required to honor a request which is properly characterized as a request for information, such as that of Mr. Shouse, nor is a public agency required to answer questions, i.e. , identify the "purpose of the blocking of traffic, " for example, or conduct research in order to comply, i.e. , identify or provide the Kentucky Revised Statute (KRS) and/or Kentucky Administrative Regulation (KAR) that authorized the operation. As indicated, this office has long recognized that the Open Records Act does not require public agencies to conduct research or compile information to conform to a given request. See OAG 89-45. The Attorney General has also specifically construed the definition of "public record" codified at KRS 61.870(2) to exclude reference materials, including statutes, administrative regulations, and case law. Acknowledging that such materials may technically qualify as "public records" due to being "in the possession of or retained by a public agency, " this office nevertheless concluded that disclosure of such materials "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " so they could not be characterized as "public records" within the scope and meaning of the Act. 99-ORD-35, p. 4; 99-ORD-181. In so doing, the Attorney General contrasted reference materials generally available in a library with public records that fall within the broad parameters of KRS 61.870(2), and that "reflect the daily functioning, programs, and operations of [a public agency] ." Id. Even assuming for the sake of argument that reference materials are public records within the meaning of KRS 61.870(2), this office has recognized that public agencies are not obligated to conduct research by locating relevant statutes and regulations concerning the subject of a request in order to comply. See 08-ORD-114; 10-ORD-207. Accordingly, the Department was not required to create a record or provide Mr. Shouse with applicable statutes or the accompanying regulations. However, the analysis does not generally end there.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, the Attorney General has consistently held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. " Id., citing OAG 89-61, p. 5.
In sum, public agencies are normally required, in lieu of honoring requests for information, to make any non-exempt public records that may contain the information being sought available for onsite inspection; 3 however, the Department ultimately confirmed that no existing records contain the information requested. The Attorney General has consistently recognized that a public agency cannot provide a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 4 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. Accordingly, the Cabinet exceeded its duty in providing a written response to Mr. Shouse's question regarding the purpose of the moving operation. The Cabinet was not statutorily required to compile information or create a record in order to fulfill the remainder of the request. Nor was the agency required or able to provide nonexistent records for inspection or copying. Our duty under the circumstances presented is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1. The agency's ultimate disposition of the request is affirmed.
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:
Mark ShouseAnn StanselTodd Shipp
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