Request By:
H. Howell Brady, Jr., Esq.
General Counsel
Office of Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Esq., Attorney General; Mark F. Armstrong, Esq, Assistant Attorney General
We are in receipt of your letter in which you ask whether an applicant may obtain from the Secretary of State of the Commonwealth a duplicate of computer tapes which contain information derived from corporation files of which the Secretary of State is the custodian.
All corporations, whether incorporated in Kentucky or another state and transacting business in this state, are required to file with the Secretary of State various written documents, see e.g. the Kentucky Business Corporation Act, KRS Chapter 271A. The Secretary of State now maintains records of over 70,000 corporations. To ease the problem of maintaining and reviewing these files, a computer program has been developed by which all or selected portions of the information contained in these corporate files is recorded on a computer tape. Thus, when specific information on a corporation is needed, rather than reviewing the particular written file, the operator of the computer can instruct it to display the desired information on a viewing screen.
An application has been received for a duplicate of this computer tape. The applicant specifically wants a duplicate of the tape itself as opposed to being supplied with the information contained thereon in some other form; i.e., in a written or printed form. The applicant is willing to pay the cost of duplication and a duplicate can be made without risking the integrity of the original.
Whether a citizen can obtain a computer tape under these circumstances is governed by KRS 61.870 et. seq., often referred to as the Open Records Law. 1 In the case of
SDC Development Corp. v. Matthews, 542 F.2d 1116 (9th Cir. 1976), the Court held that a computer tape was not an agency record under the federal Freedom of Information Act, 5 U.S.C. § 552. Based upon its construction of the Act and its Congressional history, the Court concluded that a computer tape was not an agency record in the absence of a statutory provision or other indication of legislative intent to the contrary. By contrast, in the present situation, our Legislature has clearly intended that computer tapes be considered as public records under the Open Records Law:
"Public records means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2) (Emphasis supplied)
KRS 61.874(1) provides for the public inspection and copying of public records:
"Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee. If the applicant desires copies of public records other than written records, the custodian of such records shall permit the applicant to duplicate such records, however, the custodian may ensure that such duplication will not damage or alter the records."
Our reading of the statutes makes it clear that the right of duplication is co-extensive with the right of inspection, cf.
Rosenthal v. Hansen, 34 C.A.3d 754, 110 Cal. Rptr. 257 (1973).
Having determined that the computer tapes are public record and as such are subject to copying, we must now determine whether the Secretary must duplicate (or permit the applicant to duplicate) the tape or whether duplication of the information contained thereon satisfies the statute. This problem is illustrated by the case of
Guarriello v. Benson, N.J., 217 A.2d 22 (1966) in which a citizen sought to copy a tape recording of a public meeting. The custodian offered instead a stenographic transcription in place of a duplicate tape. The New Jersey Court held that the custodian had the option of supplying either, accord,
Rosenthal v. Hansen, supra (dicta). Applying the rule of these two cases, by analogy, the Secretary would have the discretion either to duplicate the computer tape or to supply a printout of the information.
We conclude, however, that under the Open Records Law, the Secretary does not have the discretion granted to the official custodian in the Hansen case, supra, and the Rosenthal case, supra. Our conclusion is based upon the last sentence of KRS 61.874(1), quoted supra.
If an official custodian could satisfy the applicant's request by supplying a written record of the information contained on a computer tape, the provision for ensuring the integrity of the original would not have been needed. Because all sections of a statute must be given full force and effect, cf.
George v. Scent, Ky., 346 S.W.2d 784 (1961), the computer tape itself must be duplicated to satisfy the statute, and a memorial of its contents in written or printed form is insufficient.
Supporting our conclusion is the case of
Menge v. City of Manchester, 113 N.H., 533, 311 A.2d 116 (1973) in which an applicant requested a computer tape containing 35,000 property assessments. The official custodian instead offered to let the applicant inspect (and presumably duplicate) the original record card for each piece of property assessed. In holding that the applicant was entitled to a duplicate of the tape itself, rather than the raw data from which the computer tape was derived, the Court said:
"The ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common sense argument in favor of the former. The statute provides that every citizen may 'make memoranda abstracts, photographic or photostatic copies' of public records. 'Taking into account the practical realities of the situation, we believe it not only possible, but in accord with our law and what seems to be its basic philosophy, to so construe the statute as to permit' plaintiff to have the reproduced tapes at his expense."
Menge v. City of Manchester, supra, A.2d at 119.
We are unable to accept the argument that the use of the computer tape for commercial purposes 2 constitutes an unwarranted invasion of privacy which would justify a denial of an applicant's request under KRS 61.878(1)(a) 3 or limiting duplication to applicants who can demonstrate an "interest" in the corporation. First, there is no information of a "personal nature" contained in corporate files, cf.
Maysville Transit Co. v. Ort, 296 Ky. 524, 177 S.W.2d 369 (1944). Second, the files themselves are open to public inspection and thus, there should be no expectation of privacy, cf.
Bell v. Courier Journal & Louisville Times Co., Ky., 402 S.W.2d 84 (1966). Third, even before the enactment of the Open Records Law, the need to show a common-law interest was eliminated as a prerequisite to inspection of public document,
City of St. Matthews v. Voice of St. Matthews, Inc., Ky., 519 S.W.2d 811 (1974). We have found nothing in the Open Records Law which indicates legislative intention to overturn the rule of the St. Matthews case, supra, cf.
Brown v. Hobitzell, Ky., 308 S.W.2d 739 (1958).
SUMMARY: We are of the opinion that a computer tape containing information extracted from corporation files maintained by the Secretary of State is a public record under KRS 61.870(2). We are also of the opinion that an applicant is entitled to a duplicate copy of the computer tape under the authority and conditions contained in KRS 61.874. Finally, we are of the opinion that the right of the applicant to the duplicate of the tape is neither barred by the considerations of personal privacy expressed in KRS 61.878(1) (a) nor limited to a showing of common-law interest.
Footnotes
Footnotes
1 There is an indication in your letter that the computer tapes are needed to develop evidence in pending litigation. Whether these tapes must be produced under CR 30.02 or CR 34 is not discussed because 40 KAR 1:020(4) prohibits this Office from issuing opinions on questions in litigation. We answer your question here because the application of the Open Records Law to an agency's computer tapes is not affected by the outcome of the pending litigation.
2 E.g. to develop a mailing list for advertisers.
3 KRS 61.878(1)(a) provides:
(1) The following public records are excluded the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of competent jurisdiction:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.