May 10, 1993






IN RE: Louis Coleman, Jr./Department of Personnel






This matter comes to the Attorney General on appeal from the actions of the Department of Personnel in responding to Mr. Louis Coleman, Jr.'s January 27, 1993, request to inspect the Department's EEO Utilization Report. Pursuant to KRS 18A.138(3)(f), that report is prepared by the Department on a semi-annual basis and submitted to the Governor to provide an update on the state's affirmative action plan. This Office has been advised that although the Department did not respond in writing, a representative of the Department contacted Mr. Coleman by telephone on the 27th and advised him that the report had not yet been completed. Mr. Coleman was told that he would be contacted when the report was finalized.


On April 19, 1993, the Utilization Report was finalized and became available for distribution. On April 20, the Department contacted Mr. Coleman, advising him that the report had been completed and that a copy would be released to him upon receipt of a check for $5.60 to cover reproduction costs. Mr. Coleman did not send a check until April 27. On that date, the report was released to him.


We are asked to determine if the Department of Personnel violated the Open Records Act in responding to Mr. Coleman's request. For the reasons set forth below, we conclude that the Department's actions were in part in violation of the Act and in part consistent with the Act.


KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.


The statute requires written notification to the requester. It is this response which, along with the request, forms the written record which the Attorney General reviews in the event an open records appeal is filed. To the extent that the Department did not respond in writing to Mr. Coleman's request, its actions constituted a procedural violation of the Open Records Act. This violation is, of course, mitigated by the fact that the Department orally responded to his request on the same day that it was received.


Turning to the substantive issues raised in this appeal, we find that the Department of Personnel properly advised Mr. Coleman that the report had not been completed as of January 27, and was therefore not available for inspection. This Office has consistently recognized that the Open Records Act regulates access to public records, and not records management, or, in this instance, the purported failure of a public agency to generate a given record in a timely fashion. Our opinion must be limited to the question arising under KRS 61.870 to KRS 61.884. Simply stated, that question is: Does the public agency have the document in its possession at the time the request is submitted? OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-220; 93-ORD-51.


The Department of Personnel promptly advised Mr. Coleman that the report had not been completed, and was therefore not available for immediate inspection. The Department further advised Mr. Coleman that he would be contacted when the report was finalized. On April 20, one day after finalization, the Department notified Mr. Coleman that he would be provided with a copy upon receipt of a check to cover reproduction costs. KRS 61.874(1) authorizes a public agency to require advance payment of the reproduction fee when copies are requested. Upon receipt of the fee, the report was released. The Department's response was sufficient and proper under the Open Records Act.


In a subsequent conversation, Mr. Coleman asked that this Office issue an opinion on the question of the Department's repeated failure to generate the EEO Utilization Report in a timely fashion. As we have indicated, this question cannot be resolved under the Open Records Act inasmuch as the Act governs access to existing records. We suggest that Mr. Coleman address his concerns to the Department of Personnel, or, alternatively, the Office of the Governor.


Mr. Coleman and the Department of Personnel may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(2) and 61.882.













Distributed to:


Mr. Van Warren, EEO Coordinator

Department of Personnel

Capitol Annex Building

Frankfort, KY 40601


Mr. Louis Coleman, Jr.

Justice Resource Center, Inc.

P. O. Box 75

Shelbyville, KY 40065