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 Graves County Board of Education ("Board") violated the Open Records Act in its disposition of Glenn Hayden's February 13, 2019, request for a "Summary Report (or whatever you call it) reflecting all Board Members that were and/or are currently 'participating' in 'GCSD Group Insurance' provided by Graves County School District for their Employees . . . to include the full cost of premiums . . . and who paid those premiums [,] including documented proof of how those premiums were paid." 1 (Emphasis omitted.) For the reasons stated below, we find that the Board violated the Act procedurally, but not substantively.
In a February 14, 2019, response to Mr. Hayden's request, Finance Director Jimmilyn Hancock stated that "only 2 members have purchased insurance and paid for it themselves from their per diem received for attendance of board meetings." She identified the two board members and stated, "I have detailed check history for proof that no employer portion was paid towards the insurance premiums, " indicating that Mr. Hayden could view those records during regular business hours. The response, however, did not specifically address the "Summary Report" requested by Mr. Hayden.
Over the next several days, Mr. Hayden continued to communicate with Ms. Hancock by telephone and e-mail regarding his request. On February 21, 2019, Mr. Hayden reminded her that what he wanted was a "summary report," to which Ms. Hancock replied that "[t]here is not a summary report available," so "to view the information you're requesting, each individual's payroll checks have to be retrieved in order to look at the deduction history. I have these records for you to view." She stated that 2014 was the first year the school district had offered board members the opportunity to participate in group benefits, and that was when the two members' participation began.
According to Mr. Hayden's letter of appeal, 2 he met with Ms. Hancock to review the payroll records on February 27, 2019, whereupon she stated "that she could not give me the records or any information on the Board Members['] participation in GCSD health insurance policies because of privacy act issues." On appeal, Mr. Hayden complains that the Board did not give him a written denial of inspection for the payroll records. He further explains that he made the request for a "summary report" because he had suspicions that board members had participated in group insurance policies "before they were legally authorized to."
In the response to this appeal, dated March 6, 2019, Ms. Hancock reiterated that "[t]here is not a printed report available for viewing. " She stated, however, "I certify that personnel records for each board member were reviewed and verified that only two board members have ever participated in group insurance. It was also verified that the board member paid the full amount for the insurance coverage." 3 She specified when both board members began participating and the month when one member ceased to do so. In a letter responding to Ms. Hancock on March 8, 2019, Mr. Hayden stated, "I am not seeking, nor will I accept any statement of certification from you. Simply because the information I am seeking will be included on these reports for each FY, beginning with FY-1999."
On March 14, 2019, Ms. Hancock offered to let Mr. Hayden review "a pdf file . . . of each board member's pay for the time they served on the board." She stated that one of the two participating board members had "agreed to allow his personal information to be released for your viewing, " but the other member "did not give me permission to release her personal records within her personnel database." Mr. Hancock responded on March 18, 2019, that he would be making further open records requests.
The Board has repeatedly denied the existence of a "summary report" containing the information described in Mr. Hayden's request. "[A] public agency is not statutorily obligated to honor a request for information as opposed to a request for specifically described public records." 00-ORD-7. Public agencies need not "carry out research or compile information to conform to a given request," OAG 89-45, nor are they "obligated to compile a list or create a record to satisfy an open records request." OAG 76-375. Furthermore, a public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, and the agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
The Board's initial response, however, did not inform Mr. Hayden of the report's nonexistence. "[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to [state their nonexistence] in clear and direct terms [and] a written response that does not clearly so state is deficient." 02-ORD-144. We therefore find that the February 14, 2019, response to this portion of Mr. Hayden's request did not comply with the Open Records Act. The first written communication that asserted the nonexistence of the report was on February 21, 2019, which exceeded the three-day time limit imposed by KRS 61.880(1) .
It appears that the Board, during the pendency of this appeal, has offered to show Mr. Hayden some records of all members' pay during their time of service. Also, as we interpret Ms. Hancock's correspondence, one of the two members participating in group insurance has apparently authorized disclosure of the deductions from his per diem for health insurance, while the other has not. Those matters, however, are beyond the scope of the request at issue, in which Mr. Hayden asked for a "Summary Report" which had never been generated. Mr. Hayden's complaint of a lack of a written denial for payroll records is therefore premature, since he did not initiate a formal open records request for those records. Accordingly, we find the Board committed a procedural violation of the Act in failing to state the nonexistence of the requested report in its initial written response.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Other items included in Mr. Hayden's request are not in controversy.
2 Mr. Hayden's appeal, which this office received on March 1, 2019, was anomalously dated February 29, 2019.
3 Naturally, with regard to board members who never participated in group benefits, no report would exist showing any amounts paid for such benefits. If Mr. Hayden wishes to examine the specific records reviewed by the agency in verifying the nonparticipation of those members, he may make a further open records request; however, such records would not be responsive to his original request for a "Summary Report."