NOT TO BE PUBLISHED
96-ORD-251
November 20, 1996
In re: Russell Brown/Kentucky State Board of Hairdressers and Cosmetologists
Open Records Appeal
This matter comes to the Attorney General on appeal from the Kentucky State Board of Hairdressers and Cosmetologists' response to Russell Brown's request for “all information available to the Board . . . on all licensed cosmetologists located in Fayette County or Kentucky for commercial purposes by license #.” On behalf of the Board of Hairdressers, Carroll Roberts, Board Administrator, advised Mr. Brown that the Board does not maintain a list of licensees by license number. The Board did, however, offer to provide Mr. Brown with a list of licensed cosmetologists “in alphabetical order by name.”
We are asked to determine if the Kentucky State Board of Hairdressers and Cosmetologists violated provisions of KRS 61.870 to 61.884 in responding to Mr. Brown's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Board did not violate the Act.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular “information,” or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, “[W]hat the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it.” OAG 91-12, p. 5.
The Kentucky State Board of Hairdressers and Cosmetologists has notified Mr. Brown that it will provide him with a computer printout of all licensed cosmetologists in alphabetical order. Apparently, he has declined this offer pending resolution of this appeal. We believe that the Board's position is consistent with the provisions of the Open Records Act, and the decisions cited above. Although the Board may, in its discretion, “tailor the format to meet the request of an individual or a group,” it is not obligated to do so. KRS 61.874(3). It satisfies its obligations under the Open Records Act by affording Mr. Brown access to its existing database.
Mr. Brown does not raise the issue of the reasonableness of the copying charge assessed by the Board. The Board indicates that the cost for the list of 20,000 names is $888.00. If this does not reflect the Board's actual cost to reproduce the database, including media and mechanical processing costs, but not including staff cost, it should recalculate the charge based on these factors. KRS 61.874(3). Although it appears that Mr. Brown's request may have been made for a commercial purpose, the Board is foreclosed from employing those factors set forth in KRS 61.874(4)(c)1. and 2. to calculate copying charges as a result of the federal district court's decision in Stephen Amelkin, D. C. v. Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996) [1], declaring that provision unconstitutional. If the stated charge is not based on the Board's actual cost, it should recalculate the charge based on KRS 61.874(3).
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 KRS61.880(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.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
1296
Distributed to:
Russell Brown
Shear Excellence Hair Studio
Suite 311B
3101 Richmond Road
Lexington KY 40509-1526
Carroll Roberts
Administrator
Kentucky State Board of
Hairdressers and Cosmetologists
314 West Second Street
Frankfort KY 40601
Cheryl LaLonde
Assistant Attorney General
Office of the Attorney General
The Capitol
Frankfort KY 40601
[1] In Amelkin, the federal court for the Western District of Kentucky analyzed the constitutionality of Senate Bill 351, amending KRS 189.635, and concluded that the bill was unconstitutional, enjoining defendants, including this office, from enforcing, “the 1994 amendments to KRS 189.635 and KRS 61.874, et seq., and . . . KRS 438.065.”