Request By:
Bruce N. Wilkinson
Director, Boards and Commissions
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. John Winn Miller has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to furnish him with access to a computer tape in your custody.
In a letter to you, dated December 20, 1990, Mr. Miller requested access to the following material:
The most recent computerized list of boards and commissions appointed by the governor. As I am sure you remember, you previously denied this because you said it would be too much trouble for your secretary to update. Please note that I am not asking for any updates. I want whatever you have on computer. As the Attorney General's opinion stated, you are required to give me the data under the Public Access to Governmental Databases Act.
You responded in a letter to Mr. Miller, dated December 27, 1990, and advised him as follows:
In response to your request of December 20, 1990 for a computerized list of boards, commissions or other organizations subject to gubernatorial appointment, this is to inform you that I am denying your request. As you are aware, we made available to you a similar computer printout approximately a year and one-half ago. Since that time we have furnished the Herald-Leader with a copy of every executive order the Governor has issued appointing anyone to a board, commission or similar organization. In other words, we have already given you what you are now asking for. I am therefore denying your request pursuant to KRS 61.872(5).
In Mr. Miller's letter of appeal to this office, dated January 3, 1991, he maintains he is entitled to the material requested on either a disc or computer tape. Further, he states that furnishing him with a computer printout a year and a half ago does not satisfy his request pursuant to KRS 61.960 to KRS 61.975.
Apparently in an attempt to assure you that there was no misunderstanding relative to the material to which he sought access, Mr. Miller again contacted you on January 7, 1991. He stated that he is not asking you to compile any information but he wants the list relative to the appointments to the various boards and commissions. He also asked for other material pertaining to executive orders, letters of recommendation and other correspondence. However, since these items are not mentioned in his letter of appeal to this office they will not be considered in this opinion.
You replied to Mr. Miller and with reference to the list of names of appointees to the various boards and commissions, you stated that he is asking for the same information with which you have consistently supplied him. Your letter closed with the following statement: "I have now thrice refused to waste my, or my staff's time or the taxpayer's money, in catering to your ludicrous requests."
OPINION OF THE ATTORNEY GENERAL
You continue to cite KRS 61.872(5) in support of your denial of Mr. Miller's requests. That statutory section permits a public official to refuse to allow inspection of public documents if to do so places an unreasonable burden on the public agency.
As we advised you in OAG 90-101, copy enclosed, refusal to allow inspection pursuant to KRS 61.872(5) must be sustained by clear and convincing evidence. You have merely invoked the statutory provision and there is no evidence to indicate that providing the material requested places an unreasonable burden on your agency or that it would disrupt other essential functions of the public agency.
There does not seem to be much doubt that the material requested exists in some form as you supplied a computer printout approximately eighteen months ago. Mr. Miller is now requesting that you provide him with access to the original list (not an updated list) and that it be supplied on a disc or on a computer tape. This request is made pursuant to legislation which did not exist when you supplied him with the computer printout eighteen months ago.
The 1990 General Assembly enacted KRS 61.960 to KRS 61.975 and KRS 61.992 (The "Public Access to Governmental Databases" Act, effective July 13, 1990).
"Database" means records, electronically stored, that can be retrieved by a computer. KRS 61.960(1). Public records stored on a database which are subject to KRS 61.870 to KRS 61.884 (the Open Records Act) and which are not requested for commercial purposes are available for public inspection. See KRS 61.975(1).
KRS 61.975(2), relative to the availability of records on a database, provides as follows:
Such records shall be available for copying either in paper form, in a size not less than 8 1/2" by 11", in at least one (1) color on white pape; or in a flat file electronic American Standard Code for Information Interchange (ASCII) format, as designated by the party requesting the records, either at a reasonable fee not to exceed the actual cost of copying, not including the cost of staff time.
Thus, it is the opinion of the Attorney General that your denial of the request for access to records in your custody relative to persons appointed to various boards and commissions by the Governor was improper as public records stored in a database may be obtained by a requesting party in either of the two formats specified by KRS 61.975(2).
As required by statute, a copy of this Opinion is being mailed to the appealing party, Mr. John Winn Miller. You have the right to challenge the findings and conclusions set forth in this Opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.