Request By:
Ms. Valerie L. Salven
General Counsel
Department of Workers' Claims
Perimeter Park West, Building C
1270 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
This is in response to your letter dated October 30, 1990, to this Office seeking a formal opinion concerning the interpretation of KRS 61.960 to 61.992, entitled "Public Access to Governmental Databases. " Your letter states that a Colorado corporation named AVERT, Inc., recently requested access to an extensive number of records in the Department of Workers' Claims, including computer tapes or databases. You state that AVERT indicated that the information from the database would be used for a commercial purpose. AVERT's request was denied by letter dated August 13, 1990, with a more detailed explanation of the denial set forth in a subsequent letter dated October 5, 1990. Apparently no appeal has been taken by AVERT, Inc., from this denial.
Your letter refers to prior Attorney General Opinions in which this Office opined that the purpose for which access to a record is requested is not material to the decision to permit or prohibit access to inspection or copying of public records. OAGs 89-86, 82-394, 82-234, 79-275. However, KRS 61.970(4), which became effective July 13, 1990, provides as follows:
Notwithstanding any other provision of law, a database or a geographic information system shall be exempt from public disclosure under the provision of KRS 61.872, if such request is for a commercial purpose.
Your letter poses the question of whether "under KRS 61.970(4) an agency still has the discretion to deny a request for a duplicate of its records, stored on computer tape or in any other form, under the Open Records Law and prior opinions such as OAG 81-52."
OPINION OF THE ATTORNEY GENERAL
This Office, in interpreting the Open Records Law provisions, KRS 61.870-61.884, has consistently and repeatedly held that the purpose for which a person seeks access to a public record is not relevant. OAGs 89-86, 82-394, 82-234, 79-275. However, the enactment of KRS 61.960-61.992, entitled "Public Access to Governmental Databases, " which became effective on July 13, 1990, has made the purpose for which a person seeks inspection or copying relevant for certain public records. Specifically, a request to copy a governmental "database" or "geographic information system" must include a certified statement of the commercial purpose for which the copies provided will be used. KRS 61.970(1). If this certified statement indicates that the request is for a commercial purpose, then KRS 61.970(4) provides an exemption from public disclosure. Thus, the purpose (commercial or noncommercial) for which a person seeks inspection of a governmental database or geographic information system now is relevant. KRS 61.970(4) constitutes an exemption or exclusion from public inspection in addition to those exemptions set forth at 61.872(5) and 61.878(1)(a)-(j). However, this additional exemption may only be applied, in the agency's discretion, for request to copy a governmental "database" or "geographic information system" as defined by KRS 61.960(1) and (2). The exemption set forth in 61.970(4) does not apply to other "public records" as defined by 61.870(2).
An agency relying upon the exemption of KRS 61.970(4) in denying access to a governmental database or geographic information system must comply with the provisions of KRS 61.880. This includes providing a statement of the specific statutory exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld. The burden of proof in sustaining the denial on appeal rest with the agency. KRS 61.880(2). Such an agency denial does not require a detailed explanation.
However, if the agency elects to rely upon the additional exemption set forth at KRS 61.872(5), the agency must sustain its burden by "clear and convincing evidence," and therefore a more detailed explanation may be warranted. KRS 61.872(5). This Office has rarely, if ever, upheld an agency denial based solely upon KRS 61.872(5). See OAG 90-112.
An agency still has the discretion to deny a request for a duplicate of its records, stored on computer tape or in any other form, under the Open Records Law exemptions. Furthermore, a public agency is not required to supply a copy of public records which the requester has not inspected. OAG 81-52. I trust that this opinion will be of assistance to your agency in interpreting KRS 61.960 to 61.992.