NOT TO BE PUBLISHED

95-ORD-73

May 10, 1995

In re: Shirley Phillips/Department of Local Government

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal of the Department of Local Government's (hereafter "DLG") response to Ms. Shirley Phillips's request for DLG to release the name of the person or persons who first contacted DLG to instigate the initial review of the City of Bardwell's Block Grant.

By letter dated February 20, 1995, Ms. Phillips, in part pertinent to the subject matter of this appeal, requested: "In addition I request to know who made the initial phone call that instigated the first investigation. This information has been requested repeatedly by the council and Mr. Talbert. Under KY and Federal law, you have to tell the accused who are being investigated who their accusers are and what they are being accused of."

On February 28, 1995, Mr. Scott Kimmich responded by letter stating, in part, "With regard to who made the initial inquiry into the original grant, this is not relevant unless and until some form of criminal charges would be filed."

On March 6, 1995, Ms. Phillips, by letter, advised Mr. Kimmich that, "Also, it is relevant to me to know who made the initial charges against the block grant and this information repeatedly requested through 1994 while the investigation was going on as it has been to the several other people who have requested this information during the past year because there may be criminal charges filed."

On March 13, 1995, Ms. Phillips again wrote Mr. Kimmich. After thanking him for providing the information he sent, she again requested the "name of the person who initially complained and instigated the first investigation of Bardwell's Block Grant."

In her April 5, 1995 letter of appeal to this office, Ms. Phillips asks us to rule on DLG's repeated refusal to release the name of the person or persons who first contacted DLG to instigate the initial review of Bardwell's Block Grant.

Pursuant to the administrative regulations of this office setting forth the procedures to be followed in open records appeals, we sent a copy of Ms. Phillips's letter of appeal to DLG. 40 KAR 1:030, Section 2, provides:

Notice. Upon receiving a complaint, the Attorney General's Office shall send notice to the public agency that a complaint has been filed and a copy of the complaint. The agency may provide the Attorney General with a written response to the issues raised in the complaint. The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request. The Attorney General shall consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2).

On April 25, 1995, Mr. Kimmich, on behalf of DLG, provided this office with a response to Ms. Phillips's letter of appeal. Mr. Kimmich indicated that a copy of the response had been sent to Ms. Phillips. Regarding the issue raised as to DLG providing the name(s) of the individual(s) who initiated the initial investigation, Mr. Kimmich stated:

In conclusion, Ms. Phillips' continued requests for documentation as to the individual(s) who brought this project to our attention is without merit. The request is faulty in that there are no documents indicating this initial contact and, therefore, there is nothing covered by the Kentucky open records act available to Ms. Phillips regarding this matter.

For the reasons which follow, it is the decision of this office that the Department of Local Government did not act inconsistently with the Open Records Act.

It should be noted at the outset that the Open Records Act provides that "[a]ll public records shall be open for inspection by any person" unless otherwise excluded from public inspection under one of the statutorily recognized exceptions. KRS 61.872. Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying. However, public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. 93-ORD-94.

In his April 25, 1995 response to Ms. Phillips's letter of appeal to this office, Mr. Kimmich states there are no records, including phone logs, which indicate the person who contacted DLG to instigate the initial review of the City of Bardwell's Block Grant.

The initial response of DLG was insufficient in stating that Ms. Phillips's request "is not relevant unless and until some form of criminal charges would be filed." The Open Records Act does not require a person to state for what purpose or relevant reason a public record is being inspected. However, we conclude that the DLG properly responded to Ms. Phillips's request when it informed her that there were no records as were set forth in her request. Because there were no records, the request was for information. Thus, the provisions of the Open Records Act did not apply.

Ms. Phillips may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/541

Distributed to:

Ms. Scott Kimmich

Dept. of Local Government

1024 Capital Center Drive, Suite 340

Frankfort, KY 40601

Ms. Shirley Phillips

Box 323

Bardwell, KY 42023