May 14, 1996

In re: Nancy Arnett Rayburn/Campbell County License Inspector


This matter comes to the Attorney General on appeal from the Office of the Campbell County License Inspector's denial of Ms. Nancy Arnett Rayburn's open records request for a copy of a computer printout listing, among other things, the date of application for the occupational license questionnaires for the period March 1, 1996 to March 31, 1996 from the License Inspector.

By letter dated April 9, 1996, Mr. Richard Lucas, License Inspector, Campbell County Fiscal Court, denied Ms. Rayburn's request, stating that the County would no longer provide computer listings for the applications that it had processed for the time period in her request. He advised Ms. Rayburn that copies of all applications from July 1, 1995 through the present had been copied and placed in a binder for public viewing and were available for her examination.

In her letter of appeal to this office, Ms. Rayburn states in part relevant to this appeal:

The information that I requested in my letter dated April 9, 1996 has been received from the county on three previous occasions in a computer printout format. On my last two requests I have enclosed a self addressed stamped envelope. In none of my requests have I received timely access. I requested information on April 9, 1996 his response was dated April 15 however it was postmarked April 18 and I received the letter April 22, 1996.

Ms. Rayburn asks this office to determine if the County's actions regarding her request for the computer printout as well as timely access to information was consistent with the Open Records Act.

After receipt of Ms. Rayburn's letter of appeal and as is authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Paul H. Twehues, Campbell County Attorney, provided this office and Ms. Rayburn with a response to the issues raised in this appeal. In his response, Mr. Twehues stated the computer listings that Ms. Rayburn requested are not readily available or accessible from the County's occupational license tax computer software. He stated that Ms. Rayburn's requests were for dates that applications are received and entered and that their software only tracked dates of when companies started doing business in the County. This date did not correspond with the date that a business applied for an occupational license. To provide the requested listings, a query program had to be created for each listing, and would take numerous hours to process and print.

Mr. Twehues advised that as an alternative, the County now copies all applications as they are processed, binds them, and places them where they are accessible for inspection by the public. Mr. Twehues stated this would enable the County to conform to the Open Records Act and also meet Ms. Rayburn's needs as well as others who may request similar information in the future. The bound copies are available for inspection at the Fiscal Court Building during office hours.

For the reasons which follow, it is the conclusion of this office that the County's response was consistent in part and inconsistent in part with the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days of receipt of the request, and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.

To the extent that the County did not respond to Ms. Rayburn's request in writing within three working days after its receipt, as is required by KRS 61.880(1), its response was procedurally deficient. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

As to the substantive issue, we believe that the issue in this appeal is the same issue with which we dealt in OAG 89-45: Whether the Open Records Act requires public agencies to carry out research or compile information to conform to a given request. In OAG 89-45, this Office recognized that the Open Records Act “[does] not require public agencies to carry out research or compile information to conform to a given request.” OAG 89-45. Moreover, a public agency is not required to generate lists to satisfy a request for a list if no such lists currently exist. OAG 89-61.

In the instant case. Ms. Rayburn requested, among other things, the date of application for the occupational license questionnaires for the period March 1, 1996 to March 31, 1996. Mr. Twehues, in his response, explained that the County's computer software does not track the dates the applications/questionnaires are received and entered, but tracks the dates when a company started doing business in the county. Although the County had in the past compiled and provided Ms. Rayburn with a list of the information which she now requests in the instant appeal, it would no longer provide the time and research to separate the data she requested. As an alternative, to provide the information sought, which existed within the public records, the County copied all applications from July 1, 1995 through the present and placed them in a binder kept in Mr. Lucas's office for the public's and Ms. Rayburn's inspection.

Because Ms. Rayburn's request would require that information be compiled to conform to her request, that request is more closely akin to a request for research to be performed. Clearly, records exist which, when identified and extracted, satisfy her request for the information she seeks. However, to gather this information, the County indicates it would be required to create a new query program and tie up its computer system for a lengthy period of time to extract the information. In our view, however, it is not incumbent on the County to engage in this process.

It is enough, in such a case, to make available for inspection and copying the records which contain the information sought. As we noted at page 4 and 5 of OAG 86-51:

Where a person requests that a list of material be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. Thus, if the records and materials requested, although not compiled in any kind of a list form, are nevertheless in the possession of the public agency, the files containing those public records should be made available for public inspection in order that the requesting party may attempt to secure the particular documents and records with which he is concerned.

Accordingly, since the records are not maintained in the format requested, we find that the County properly denied Ms. Rayburn's request for a computer printout with the information she requested regarding the date of application for the occupational license questionnaires.

Should Ms. Rayburn request copies of all applications in the bound book be mailed to her, then the County, pursuant to KRS 61.782(3)(b), would be obligated to mail the copies, unless they are otherwise exempt from disclosure under an applicable provision of the Open Records Act, upon receipt of all fees and the cost of mailing, since her principal place of business is outside the county in which the records are located.

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. which contain the information she seeks.






Distributed to:

Nancy Arnett Rayburn, CPA

Rayburn & Company

525 West Fifth Street, Suite 315

Covington, Kentucky 41011-1209

Richard Lucas

License Inspector

Campbell County Fiscal Court

24 West Fourth Street

P. O. Box 340

Newport, Kentucky 41072

Paul H. Twehues

Campbell County Attorney

331 York Street

Newport, Kentucky 41071