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; Amye B. Majors, Assistant Attorney General
Ms. Toni Barton, a product developer for DAC Services of Tulsa, Oklahoma, has appealed to the Attorney General pursuant to KRS 61.880 your denial of her May 6, 1991, request for a copy of your agency's computer database containing Kentucky workers' compensation claim records. DAC Services supplies transportation companies with driver pre-employment screening information, including "nationwide driving records, employment histories, multiple license checks, credit reports and workers' comp claims from 15 states." As noted by Ms. Barton in her letter of appeal:
Supplying our members with this information quickly allows them to get a qualified driver on the road. The workers' comp report, in particular, helps to verify the application and assists the examining physician during the [Department of Transportation] required physical in assessing the applicant's physical qualifications.
You denied Ms. Barton's request in a letter dated May 24, 1991, relying on this Office's previous opinion in OAG 91-4, as well as KRS 61.872(5) and KRS 61.878(1)(a). It is your position that an agency may, in its discretion, withhold its computer database, if it is requested for a commercial purpose, pursuant to KRS 61.975(1). You further maintain that an agency is not foreclosed from asserting one or more of the recognized exceptions to the Open Records Law, codified at KRS 61.878(1)(a) through (j), to authorize nondisclosure of its database. You invoke the exception for records containing information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a).
As a matter of simple logistics, you argue that satisfaction of Ms. Barton's request would impose an unreasonable burden on your agency's staff and that it may therefore be refused pursuant to KRS 61.872(5). It is your position that the programming, billing, and other processing required for the initial service and regular updates, including redaction of information which is exempt under KRS 61.878(1)(a), would consume several hours of staff time.
Finally, you note that the right of a requester to receive a copy of the records sought is ancillary to the right of inspection, and that an agency cannot be compelled to produce copies in advance of inspection. You suggest that Ms. Barton contact your agency:
[T]o ascertain whether we have any records listed under an individual's name and social security number; if we do, you can then send in a request for the information. If we do not have any records on an individual, you will be told this over the telephone the same day of your request. By making the requests as you need the information, furthermore, you will be assured that the information obtained is the most current available.
In closing, you then extend an invitation to Ms. Barton to visit the Department's offices to inspect the individual records.
In her letter of appeal to this Office, Ms. Barton states that your reliance on OAG 91-4 is misplaced. It is her belief that although that opinion suggests that the purpose of a request for a database is relevant to whether access is granted, you cannot reasonably argue that purpose is relevant in this case since you have indicated your willingness to entertain her requests on an individual basis. DAC Services' purpose for the request is the same "whether made on a one-by-one basis . . . or through the simplicity and speed of electronic transmission." Moreover, she offers her assurances that DAC Services will protect any information deemed confidential, or in the alternative, compensate an employee of your agency, or instruct its own programming department to redact that information, thus allaying your concerns for the workers' compensation claimants' right of privacy.
In response to your logistical concerns, Ms. Barton suggests that it is your proposal which will place an unreasonable burden on the Department's employees, noting:
DAC accepts 500-1,000 requests daily for workers' comp background checks on individuals. We don't believe . . . [your employees] have enough time in . . . [their] work day to meet our needs.
She indicates that although DAC "has no desire" to inspect the Department's records, a representative "will comply by visiting the department and inspecting all records," if your denial of her request is based on this "technicality."
Ms. Barton asks that we review your denial of her request for copies of the Department's computer database to determine if your actions were consistent with the Open Records Law. For the reasons set forth below, we conclude that you properly denied Ms. Barton's request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.975(1) provides, in relevant part:
Public records stored on a database or a geographic information system which are subject to KRS 61.870 to 61.884, but are not requested for a commercial purpose, shall be made available for inspection to the public upon request at the offices of the public agency.
The converse of this proposition is found at KRS 61.970(4), which states:
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.
Thus, for purposes of determining the propriety of release of a database, the stated purpose is directly relevant. OAG 90-101; OAG 91-4. While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (j), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. Purpose is relevant, however, only for requests to copy databases and geographic information systems, as defined by KRS 61.960(1) and (2). Our prior opinions, holding that the purpose for which a person seeks access to public records, as defined by KRS 61.870(2), is irrelevant, remain unchanged. See e.g., OAG 79-275; OAG 82-234; OAG 82-394; OAG 89-86.
The Department of Workers' Claims properly denied Ms. Barton's request for a copy of its computer database inasmuch as her purpose in seeking access to the records of workers' compensation claims is clearly commercial. KRS 61.960(3)(a) defines a "commercial purpose" as:
The direct or indirect use of all or any part of a database, for sale, resale, solicitation, rent, or lease.
While this definition has not been interpreted by this Office or the courts, it clearly encompasses the use to which Ms. Barton intends to put the requested information. DAC Services collects such information for its subscribers, transportation companies, in order to screen applicants who wish to be employed as drivers. In essence, DAC sells or resells the information to its subscribers. Under the clear mandate of KRS 61.970(4), the Department may refuse to release its database for this commercial purpose.
As you correctly observe, Ms. Barton's purpose would not be relevant if her request were specific, identifying individuals about whom information is needed, and therefore not a "blanket request" for the Department's computer database. While the Department might still withhold information exempt under KRS 61.878(1)(a) through (j), it could not deny her request on the grounds that it is made for a commercial purpose. Since Ms. Barton appears to reject this proposal in her letter of appeal, we need not decide whether your agency may properly redact information pursuant to KRS 61.878(1)(a).
Nor need we decide whether Ms. Barton's request is overly burdensome. We find that the exemption contained in KRS 61.970(4) disposes of this appeal without further analysis. The Department correctly applied that provision in refusing to release its database.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Toni Barton. She has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).