Request By:
Ms. Janie A. Miller
Deputy Commissioner
Department for Medicaid Services
Cabinet for Human Resources
275 E. Main Street
Frankfort, Kentucky 40621-0001
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Jacqueline C. Kingsolver, a partner in the law firm of Sheffer, Hoffman, Thomason, Morton & Lee, has appealed to the Attorney General, pursuant to KRS 61.880, your denial of her April 22, 1992, request to inspect certain records in the custody of the Department for Medicaid Services. Those records are identified as:
(1) [T]he provider ID number for each of the pharmacies named [in an attached list];
(2) [F]or each prescription claim paid to the listed pharmacies by Medicaid during the period July 1, 1990 through July 30, 1992, the following:
(a) [D]rug code used to make claim;(b) [Q]uanity of drug prescribed and the date dispensed;(c) [A]mount paid for prescription; (d) [P]harmacy prescription number (if reported); and,(c) [sic] [P]rescribing physician's provider ID number.
Ms. Kingsolver apparently asked that the data be provided in a specific computerized format.
On behalf of the Department, Mr. Timothy A. Sturgill, Assistant General Counsel for the Cabinet for Human Resources, denied Ms. Kingsolver's request on April 29, 1992. Relying on KRS 61.872(5) and OAG 78-231, he advised her that no list of the information she requested currently exists, and that to produce such a list would require additional staff and a special computer run "to place the data in a list form."
In her letter of appeal to this Office, Ms. Kingsolver objects to the "Department's attempt to thwart the intent of the law by hiding behind its arguments that computer data cannot be retrieved." Continuing, she argues:
We stand ready to discuss any reasonable means and costs associated with retrieving the computer data. We have specifically identified the pharmacy providers about whom information is sought and will do so for physician providers as well.
Inasmuch as the handling of significant amounts of data is the primary function of computerized systems, we do not agree that the production of such data places an unreasonable burden on the Cabinet.
In support of her position, Ms. Kingsolver cites OAG 80-519 and OAG 91-116, the first dealing with the public's right of access to records of the Cabinet (then Department) for Human Resources showing payment to specific identifiable providers of health care, and the second dealing with the public's right of access to governmental databases under KRS §§ 61.960-.992.
Ms. Kingsolver asks that we review the Cabinet's denial of her request to determine if this action was consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied her request.
OPINION OF THE ATTORNEY GENERAL
In OAG 90-101, we dealt with an open records appeal which was virtually identical on its facts. There, an individual requested access to a computer printout of information pertaining to boards and commissions. Relying on KRS 61.872(5), the public agency denied the request, explaining that to compile a computer list would require a significant expenditure of staff time. On appeal, this Office held that although the public agency had failed to sustain its burden by establishing that production of the list would place an unreasonable burden on it pursuant to KRS 61.872(5), the agency was not required to create a list from public records where such a list did not already exist. Our opinion in OAG 90-101 is consistent with a number of previous opinions in which we recognized that a requester cannot require an agency to create a document. OAG 76-375; OAG 80-308; OAG 86-51; OAG 88-79; OAG 89-45; OAG 89-66; OAG 91-12; OAG 91-116. As we noted in OAG 91-12, at p. 5, "Basically, what the public gets is what you have and in the format in which you have it." We believe these opinions are dispositive of the present appeal.
It should be noted, however, that KRS §§ 61.960-.992, entitled "Public Access to Governmental Databases, " provides a mechanism by which a requester may obtain a copy of all or any part of a database. KRS 61.975(1) provides, in part:
Public records stored on a database or a geographic information system which are subject to KRS 61.870 to KRS 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 statute 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 provisions of KRS 61.872, if such request is for a commercial purpose.
These provisions have been interpreted to mean that 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, but that, it may, in its discretion, withhold the same records if requested for a commercial purpose. OAG 91-4; OAG 91-116. "Commercial purpose" is defined as:
The direct or indirect use of all or any part of a database, for sale, resale, solicitation, rent, or lease.
Based on the facts presented in this open records appeal, we believe that Ms. Kingsolver's request should have been made under these provisions.
To obtain a copy of a governmental database, a requester must provide a "certified statement stating the commercial purpose for which it shall be used." KRS 61.970(1). If an agency elects to release its database, the requester must enter into a contract under the terms of which he or she may use it only for the stated commercial purpose, and for a specified fee. KRS 61.970(2). That fee is based on the cost to the agency of the time, equipment, and personnel used in the production of the database, the cost to the agency of the creation, purchase, or other acquisition of the database, and the value of the commercial purpose for which the database is to be used. KRS 61.970(2)(a)-(c).
If, on the other hand, the requester desires access to a governmental database for a noncommercial purpose, an agency must make it available, subject to the exceptions codified at KRS 61.878. KRS 61.975. On those occasions when the request requires the creation of a "nonstandardized unique, custom-made record[]," an agency may assess a fee which "shall not exceed the reasonable cost of computer and personnel time and printing cost needed to produce such products." KRS 61.975(3).
Ms. Kingsolver may wish to renew her request under these provisions, stating the purpose for which the information is to be used. The Department may then evaluate it under the appropriate law, and in light of all relevant facts. For the present, however, we conclude that the Department properly advised Ms. Kingsolver that the information she requested does not exist in list form, that it cannot make available that which it does not have, and that it is not required to create a document to satisfy her request. Because we believe the cited opinions dispose of this appeal, we need not decide whether the request is overly burdensome within the meaning of KRS 61.872(5).
As required by statute, a copy of this opinion will be sent to Ms. Jacqueline C. Kingsolver. Ms. Kingsolver and the Department may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).