June 11, 1996

In re: Nancy Adams/Kentucky State Police


This matter comes to the Attorney General on appeal from the denial of a request to inspect public records submitted by Nancy Adams to the Kentucky State Police. On April 9, 1996, Ms. Adams requested access to records which disclose “the number of citations issued by the Kentucky State Police in the counties of Letcher, Knott, and Perry under KRS 177.305 and KRS 189.150 from 1991 to the present.” In a response dated April 9, 1996, Diane H. Smith, official custodian of records, denied Ms. Adams's request. Relying on KRS 61.872(6), she stated that retrieving the information requested would place an unreasonable burden on the State Police. Ms. Smith explained:

[O]ur records [are not] kept by the type of vehicle for which citations are written, e.g., cars, coal trucks, etc. Neither are our records categorized in counties by type of offense, e.g., no tarp or escaping or shifting contents. To obtain this information would require reconfiguration of our computer that would, in turn, require many hours of work by employees in our Data Processing Section. Quite simply, we do not have the personnel to do this.

In a subsequent letter to this office, Ms. Smith elaborated:

Ms. Adams' request was initially made by telephone to the Kentucky State Police Records Section. In that conversation she specifically wanted the citations issued for coal trucks. The individual with whom she spoke explained that citations were not accessible by type of vehicle. When Ms. Adams made her written request to the Records Section, it was forwarded to me for response.

In my response to Ms. Adams, I explained that our records were not kept by the type of vehicle and are not categorized in counties by type of offense. To obtain this information would require reconfiguration of our computer that would require creating a document and placing an unreasonable burden on our employees to produce these records.

In short, I cannot produce a specific list of citations for coal trucks. Only the type of truck is entered into the computer (i.e., semi, dump truck, etc.), not the cargo they carry. When lists are compiled for a post area, they list all violations, not specific ones such as no tarp or shifting contents and are for all counties in the post area. Lastly, citation information is only kept on the computer for no more than two years.

While we have no objection to releasing this information, to compile it would impose an unreasonable burden on Kentucky State Police employees. We do not have the information she seeks in the format she needs and we would have to create documents to reflect this information. We simply do not have the manpower to do this.

In her letter of appeal, Ms. Adams states that she has obtained computerized lists of citations from the Transportation Cabinet, and from the courthouses in Letcher, Perry, and Knott counties. Continuing, she observes:

I am not asking the State Police to reconfigure their computer system to accommodate my request. I would be willing to drive to Frankfort, and look at list [sic] of citations for coal trucks I could cull the information I need.

She asks that this office render a favorable decision in this open records appeal.

We are asked to determine if the Kentucky State Police violated provisions of the Open Records Act by advising Ms. Adams that it could not produce a list of citations for coal trucks only. Although a public agency may, in its discretion, tailor the format of electronically stored records to satisfy a specific request, it is not required to do so. KRS 61.874(3). Moreover, since this appeal was filed, the State Police have indicated their willingness to release the requested records in their existing format to Ms. Adams. We therefore find that the Kentucky State Police have complied with the provisions of the Open Records Act.

KRS 61.874(3) provides, in part:

If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.

It is unclear whether Ms. Adams would be satisfied with the requested records in their existing format, or is only interested in reviewing the records in a specifically tailored format. What is clear, however, is that the State Police are not required to specifically tailor the format “to meet the request of an individual or a group.” KRS 61.874(3). The State Police properly exercised their discretion in declining Ms. Adams's request.

Ms. Adams requested access to citations issued by the State Police pursuant to KRS 177.305 and KRS 189.150. KRS 177.305 provides:

All trucks hauling coal on a fully controlled limited access highway shall be covered by a tarp or equivalent cover to prevent spillage.

KRS 189.150 prohibits vehicles from operating upon any highway unless they are constructed so as to prevent their contents from escaping. Ms. Smith indicates that the State Police cannot produce a list of citations for coal trucks only since their records reflect the type of truck, such as semis or dump trucks, not the cargo they are hauling. In addition, she notes, violations are not differentiated as to type, such as “no tarp” or “shifting contents,” and are not differentiated by counties within the post area. Finally, Ms. Smith advises, records reflecting citations issued are maintained for no more than two years. Nevertheless, KSP will permit Ms. Adams to inspect their records in their existing format.

The Open Records Act requires no more. It is well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. At page 5 of OAG 91-12, this office observed “[W]hat the public gets is what [the agency has] and in the format in which [the agency has] it.” The agency may, of course, elect to do so, and under the Open Records Act as amended in 1994, recover its staff costs. KRS 61.874(3). Compare, 95-ORD-82 (holding that the mere deletion of exempt information from an existing database does not result in the creation of a new record). As noted, the State Police have properly exercised their discretion in declining to tailor their records to satisfy Ms. Adams's request, and have expressed their willingness to allow her access in their existing format. We urge the State Police to work with Ms. Adams in a spirit of cooperation toward an amicable resolution of this dispute.

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.






Distributed to:

Diane Smith

Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort KY 40601

Nancy Adams

Appalshop, Inc.

306 Madison Street

Whitesburg KY 41858