Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Morehead State University violated the Open Records Act in its disposition of Brandon Combs' request for records and information dated August 18, 2015. For the reasons that follow, we find no violation of the Act.
Mr. Combs' letter, addressed to the University's General Counsel, states in relevant part as follows: As per the Open Records statutes, I am requesting the following information:
. A list of balances of the 137 students that were in excess of $ 500 [prior to the spring 2015 semester]
. How much each student paid to meet the "significant payments" measure
. A list of the above stated students who still have an outstanding balance After receiving no response, Mr. Combs appealed to the Attorney General on August 28, 2015.
In a response dated September 9, 2015, General Counsel Jane V. Fitzpatrick stated that she had never received Mr. Combs' August 18 request, but provisionally answered as follows while determining whether any responsive records might exist:
1. The request is denied as to the "list of balances of the 137 students" if no such list currently exists.
2. The request for a "list of the above students who still have an outstanding balance" is denied in that at this point it is believed that no such list exists. (It is further complicated by the fact that all or some of the "students" may or may not be students at this time.)
3. The request for "how much each student paid to meet the 'significant payments' is not a request for a document, but is only a request for work to be done to compile a document of information from other sources.
4. MSU objects pursuant to KRS 61.878(1)(k) that allows for the withholding of "public records or information the disclosure of which is prohibited by federal law or regulations. " Records that contain personal information, including financial information, of students are protected from disclosure by the federal Family Education Rights and Privacy Act (FERPA) and its regulations. MSU will therefore deny access to any materials that could identify a particular student.
To the extent any of the requested documents do exist, MSU will grant access with redaction of student information protected by FERPA.
On September 17, Ms. Fitzpatrick provided the following update:
A thorough search has been made, and it has been determined that the lists requested by Mr. Combs do not exist. At the time [Chief Financial Officer Beth] Patrick asked for information [on some previous occasion], staff in the accounting office checked the records, ran the query and reported the findings. No document was made and kept either in paper or electronic form. If such did exist, we would be glad to produce it as noted in my original response to you.
I have asked if that same query can be rerun and have been advised that the query run now would not be the same. Furthermore, it cannot be determined exactly when the query for Ms. Patrick was run to attempt to replicate the figures.
Thus, we do not have any "documents" as requested nor can we replicate same. Thus, the University cannot respond to the request.
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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. In the absence of any evidence to the contrary, Ms. Fitzpatrick's explanation adequately explains the nonexistence of the requested lists.
Furthermore, requests for information are outside the scope of open records law, and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
A public agency is not required to compile a list or to create a record in response to an open records request. ( See 12-ORD-026 and authorities cited therein.) Accordingly, we can find no violation of the Open Records Act.
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.