March 11, 1996

In re: Darrell Franks/Kentucky Board of Medical Licensure


This matter comes to the Attorney General on appeal from the Kentucky Board of Medical Licensure's denial of Darrell Frank's October 24, 1995, request for “the names of all cases before the Licensure Board in the last five years that involve consultation or testimony from Dr. [William D.] Weitzel.” In addition, Dr. Franks stated that he “would like the names of the attorney(s) involved, and to know if a deposition was taken from Dr. Weitzel.”

On behalf of the Board of Medical Licensure, Wes Faulkner, General Counsel, denied Dr. Franks's request, advising him that the request “requires the production of statistical data which [the Board] has not compiled.” In support of this denial, Mr. Faulkner cited OAG 81-333.

The question presented in this appeal is whether the Board of Medical Licensure properly denied Dr. Franks's request. For the reasons set forth below, we conclude that the Board's response was consistent with the provisions of the Open Records Act.

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, p. 3, citing OAG 79-547 and OAG 83-333. There the requester sought access to the addresses of individuals whose names and addresses he had previously secured. We characterized this request as “a request for research to be performed, rather than for inspection of reasonably identified public records,” noting that the public agency from which the records were sought “had no compiled record corresponding to the request.” See also, 95-ORD-27, p. 8. We believe that this opinion is dispositive of the present appeal.

Dr. Franks requested the names of all cases before the Licensure Board in the last five years that involve consultation or testimony from Dr. William D. Weitzel, the names of the attorneys involved in those cases, and a statement as to whether Dr. Weitzel's deposition was taken in those cases. As in OAG 89-45, the Board has no compiled record corresponding to this request. To require the Board to compile information to conform to Dr. Franks's request would be tantamount to reading an additional duty into the Open Records Act which the Act does not mandate.

For purposes of contrast, we examine 94-ORD-121. In that decision, the requester sought copies of records which, according to the agency's own Records Retention and Disposal Schedule, were required to be compiled and separately maintained in a designated area of the agency. Thus, the records had already been compiled for purposes of satisfying the agency's records retention obligation. No additional research needed to be performed. The records had only to be retrieved from the designated area, and produced for inspection. We concurred with the requester in his view that the agency had improperly equated an obligatory search with nonobligatory research. 94-ORD-121, p. 7.

Because Dr. Franks requests that information be compiled to conform to his request, that request is more closely akin to a request for research to be performed. Clearly, records exist which, when identified and extracted, satisfy his request. The Board of Medical Licensure would be required to expend hours, if not days, reviewing records from the past five years in order to extract the information. In our view, however, it is not incumbent on the Board 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 an 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.

Even more to the point, we have observed:

KRS 61.872 provides that all public records (except as otherwise provided) shall be open for inspection. If there were records or compilations accumulating the information [the requester] has requested, they would have to be disclosed. The issue here is not whether the request is a blanket one, or whether it is specific, as [the requester] contends. The issue is whether there exists records or compilations that would satisfy his request.

Obviously information documenting, in bits and pieces, facts [the requester] is attempting to determine, will appear among the many records that are generated . . . through time. Public agencies, however, are neither required nor directed by open records provisions to devote the taxpayer's time to reviewing voluminous records in order to compile information to satisfy a particular information request. The legislature has recognized this by providing only that records must be made available for inspection, not that information must be extracted and compiled. (Citation omitted.)

OAG 88-79, p. 3.

Had the information which Dr. Franks requests been compiled in a public record, he would almost certainly be entitled to inspect and copy it. Since it has not been compiled, he must expend his own energy to extract the information that is responsive to his request.

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:

Hon. Lloyd Vest

General Counsel

Kentucky Board of Medical Licensure

Hurstbourne Office Park

Suite 1B

310 Whittington Parkway

Louisville KY 40222

Darrell D. Franks, M.D.

1001 South Third Street

Louisville KY 40203