Request By:
IN RE: Robert G. Clark/Kentucky Department of Education
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This appeal originated in a request for "a copy stored on diskette of the Administrative Regulations promulgated by the Kentucky State Board for Elementary and Secondary Education" submitted by Robert G. Clark to the Kentucky Department of Education on September 10, 1993. On behalf of the Department of Education, Kevin M. Noland, General Counsel, responded to Mr. Clark's request, advising him as follows:
The administrative regulations promulgated and adopted by the Kentucky State Board for Elementary and Secondary Education have not been updated in our office. We have obtained copies of these regulations from the Legislative Research Commission on diskette, and we were informed at the time that the information belonged to LRC and could not be shared with any outside source.
Mr. Noland advised Mr. Clark to contact Susan Wunderlich, Regulations Compiler, to obtain a copy of the administrative regulations on diskette.
In his letter of appeal to this Office, Mr. Clark argues:
[A]ll of the administrative regulations in question have, in fact, been promulgated and adopted by the State Board, a state agency. The material sought is public information. Mr. Noland is acting under a restriction imposed by LRC but one that is irrelevant to an open records request for public information.
It is my understanding that the administrative regulations on diskette that I seek are in straight regulation form -- not edited or otherwise copyrightable material but administrative regulations adopted by the State Board. Even if the records have been stored in this form by the LRC, another state agency, and returned to the Department of Education, it does not appear to alter the fact that the records are public administrative regulations promulgated and legally adopted by a state agency.
In his view, these records should be available under the Open Records Law.
The question presented in this appeal is whether the Department of Education properly denied Mr. Clark's request for a copy, stored on diskette, of the Administrative Regulations promulgated by the State Board for Elementary and Secondary Education. Although Mr. Noland's response was procedurally deficient, we believe that his decision to withhold the requested record was consistent with the Open Records Law.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
Mr. Noland failed to include a statement of the specific exception authorizing the withholding of the record, and to briefly explain how that exception applies to the record withheld. To this extent, his response was procedurally deficient. As we recently noted in a separate appeal, the procedural requirements of the Open Records Law "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge Mr. Noland to review the cited provisions to insure that future responses conform to the Open Records Law.
Turning to the substantive issues raised in this appeal, we find that the Department of Education properly denied Mr. Clark's request. KRS 61.878(1)(k) authorizes a public agency to withhold, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In 1990, the General Assembly enacted The Legislative Databases Act, which provides, in part:
The text of the Kentucky Revised Statutes and the text of the Kentucky Administrative Regulations shall be part of the legislative electronic information system. Access to these texts shall be limited to agencies of the Commonwealth and its political subdivisions. Copyright interests of the Statutes publishers, which include case annotations, cross reference notes, editor's notes, compiler's notes, and collateral reference notes, shall not be violated.
KRS 7.510(3). It is the opinion of this Office that these provisions operate in tandem to preclude release of the text of the Kentucky Administrative Regulations to anyone other than agencies of the Commonwealth and its political subdivisions. 1
This position finds support in the "Policy on Release of LRC Database Materials for Certain Purposes" formulated by the Special Committee on Statutes and Regulations Publications, and confirmed by the Legislative Research Commission in October, 1992. The policy statement clearly establishes that if a state agency requests a portion of the Kentucky Revised Statutes or the Kentucky Administrative Regulations in an electronic format for internal use by the agency, the diskette or tape "is supplied for the exclusive internal use of the agency for governmental purposes only." The term "governmental purposes" specifically excludes "searching or other similar uses of the data for private persons or organizations." The requesting agency further agrees not to reproduce the diskette or tape, or to lend, give, lease, or sell it to another person or entity. Contrary to Mr. Clark's assertions, we believe that the provisions upon which Mr. Noland relied are directly relevant. In our view, the Department properly denied Mr. Clark's request.
Mr. Clark and the Department of Education may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action in circuit court, he should not be named as a party in that action, or in any subsequent proceedings.
Footnotes
Footnotes
1 Compare KRS 7.510(1), providing that access to that part of the legislative electronic information system that includes "the status of bills and resolutions publicly active within the legislative process and related information, including sponsors, summaries, and committee referrals . . . shall be made available to all agencies of the Commonwealth, its political subdivisions, and to the public. " (Emphasis added.)