Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in the disposition of R. G. Dunlop's February 2, 2016, request for a list of outside employment information for Corrections employees. For the reasons that follow, we find no substantive violation of the Act.
In his request, addressed to Open Records Request Coordinator Mike Caudill, Mr. Dunlop requested: 1
A list of each and every DOC employee who currently is working off duty, and/or who has worked off-duty since January 1, 2012.
I'm asking for a list that includes each employee's name; DOC job title; dates of request and approval of off-duty employment; a description of the off-duty job by duties and name of employer; the approved number of hours worked; and the duration of the approval (calendar year, etc.).
In the initial response, dated February 9, 2016, Mr. Caudill stated that the Commissioner of the Department of Corrections, under the authority of KRS 197.025(1), had deemed the disclosure of such records a security threat. In response to Mr. Dunlop's appeal, however, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, additionally advises that "there is no existing record containing the entirety of the information on the 'list' Mr. Dunlop has requested."
In light of this latest information, we consider it unnecessary to address the application of KRS 197.025(1) at this time. 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 Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45. Thus, agencies "are not obligated to compile a list or create a record to satisfy an open records request." OAG 76-375. We therefore find no substantive violation of the Act. Mr. Dunlop may, of course, make a request for existing records that contain the information he seeks.
Procedurally, however, the Department should have initially determined whether such a list existed and informed Mr. Dunlop accordingly. KRS 61.880(1) requires any "agency response denying, in whole or in part, inspection of any record [to] include a statement" of the basis for denial. "[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and ? it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38. Furthermore, a public agency is obligated "to conduct a search that can reasonably be expected to produce the records requested" and "to advise the requesting party whether the requested record exists." 06-ORD-020 (internal quotation omitted). Thus, the failure to make this determination initially was a procedural violation of KRS 61.880(1).
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 proceedings.
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