Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Treasurer's denial of Mindy Hines's November 19, 1997, open records request for copies of print screens of forty-eight abandoned property accounts that were reported to the Department of the Treasury in 1997.
By letter dated November 24, 1997, Tim Lester, Manager, Unclaimed Property Branch, Department of the Treasury, denied Ms. Hines's request on the basis that the records were preliminary in nature. In his denial letter, Mr. Lester explained:
As you know, we have a report date of August 1<st> of each year for holders of unclaimed property to file a report of property presumed abandoned. By the following January 1<st>, the holders must remit to the Treasury any property that has not been claimed on that year's report. Between August and January, our advertisement is published in the newspaper, and when we receive inquiries we direct the owners back to the company.
Since the information published in our newspaper advertisement is preliminary in nature (we have not received the money from all these companies yet), I am denying your request.
Dissatisfied with this response, Ms. Hines initiated this appeal.
After receipt of her letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Department of the Treasury and enclosed a copy of Ms. Hines's letter. As authorized by KRS 61.880 (2) and 40 KAR 1:030, Section 2, the Department, through its counsel, Assistant Attorney General Robert S. Jones, provided this office with a response to the issues raised in the appeal. In the response, the Department amplified upon its original response, asserting the following bases for denial of Ms. Hines's request:
1. The "print screens" requested contain information of a personal nature on the part of the individuals in whose behalf the State holds lost and abandoned property, and public disclosure thereof would constitute an unwarranted invasion of privacy. KRS 61.878(1) (a).
1. The "print screens" contain information which constitutes preliminary drafts or notes. KRS 61.878(1)(i).
1. When Treasury makes the determination that property remitted for the year constitutes lost and abandoned property which it holds in trust, it generates a list which is provided to persons who intend to use the records for commercial purposes and, pursuant to KRS 61.874(4)(a), charges $ 100.00 to recoup the cost of generating this document. It would be inappropriate to allow commercial finders to circumvent this procedure by determining that the preliminary documentation upon which those lists are based constitute nonexempt public records.
By letter dated December 28, 1997, Ms. Hines responded to the Department's response to her letter of appeal. In response to the Department's argument that the print screens contain confidential information, Ms. Hines stated that she does not dispute this assertion. She indicated that with the instant request, as in previous requests she has made, she did not seek any information that would be considered "confidential, " such as social security numbers or bank account numbers. She further stated that KRS 61.878(4) provides that nonexempt portions of public records which are commingled with exempt portions must be separated, and the nonexempt portions made available for public inspection. In describing previous requests and the application of KRS 61.878(4), Ms. Hines stated:
In a previous open records request, (see exhibit "A") I ask to view several accounts. I was granted this request and provided with copies of the actual report from the holding company. Any confidential information was marked out, thus complying with KRS 61.878(4). In a subsequent request, (see exhibit "B") I asked to view the same sort of report for several accounts and Tim Lester suggested that it would be easier to provide me with "print screens. " You will notice that on these copies all confidential items are marked through. In my latest request, (see exhibit "C") I once again requested the "print screen" on some accounts. Once again all confidential items were covered up before I received a copy of them. I received a print out of the "print screens" just a week ago. I am somewhat puzzled at how in one week this option is no longer available.!?
In response to the Department's argument that the print screens are preliminary drafts or notes, Ms. Hines stated:
The records that I am requesting cannot be characterized as a preliminary recommendation or preliminary memorandum in which opinions are expressed. The information is clearly an objective report of facts. Sure the physical holder of the funds may change hands, however, the simple fact remains that the account name, address, and amount will remain the same, thus squashing the idea that these records are of a preliminary nature. The list can in no way be characterized as correspondence with a private individual, nor can the records be considered a note or a tentative version. This information was published in newspapers statewide. I am sure the Treasurer would not go to the expense of placing legal ads for "draft reports."
In response to the Department's argument that the Treasurer is entitled to require payment by individuals who request open records for commercial purposes of a fee for creation of a record containing this information, Ms. Hines agreed with the Department. In her response she stated:
Pursuant to KRS 61.874(2), I would be willing to pay a reasonable fee for making copies of these records . . . not to exceed the actual cost thereof and not including the cost of staff required.
We are asked to determine whether the Department's denial of Ms. Hines's request was consistent with the Open Records Act. For the reasons which follow, we conclude that the Department improperly denied the request.
We address first the question of whether the requested documents are exempt from disclosure under KRS 61.878(1)(i), as preliminary drafts or notes. That exception authorizes the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency [.]
Resolution of this issue turns on whether the print screens are preliminary drafts or notes. The Department describes a "print screen" as a snapshot printout of a particular account or report in its computer database.
Pursuant to KRS 393.110 (Kentucky's escheats law), holders of property or funds presumed abandoned are required to file a report of such property with the Department by August 1<st> of each year. The report contains the name and address of the unclaimed property owner, his or her social security number, the nature or description of the property, the amount or value of the property reported unclaimed, and the name and address of the company holding the property. KRS 393.110(d) requires the report to be filed with the Department in duplicate. The original is retained by the Department, and a copy of the report is mailed to the sheriff of the county where the property is located or held to be posted and published by the sheriff.
In 97-ORD-183, we considered whether a print-out of the Treasury Department's database of unclaimed property reported to it and used at the Kentucky State Fair, constituted a preliminary note or draft and thus was exempt under KRS 61.878(1)(i). In concluding that the print-out did not qualify for exclusion under KRS 61.878(1)(i), this office observed:
It is apparent that the unclaimed property list cannot be characterized as correspondence with a private individual. Thus, in order to qualify for exclusion, the list must be characterized as a preliminary draft or note.
In an early open records opinion, this office observed:
OAG 78-626, p. 2. Resolution of this appeal turns on the issue of whether the disputed list is a work paper because it is a preliminary draft or note. The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary 402 (1988). The term note is defined as "a brief record, esp. one written down to aid the memory." Id. at 804 . In our view, the lost and abandoned property list posted at the Kentucky State Fair does not qualify as either a draft or a note.
Clearly, the list is not a note. It was not created as an aid to memory or as the basis for a fuller statement, as are, for example, written or shorthand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9 (KRS 61.878(1)(j) is "intended to protect random notations made by individuals present at a meeting"). By the Department's own admission, the list reflected accounts that remained unclaimed at the time it was generated, and was complete and accurate as of that date.
Nor is the list a draft. It does not represent a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, or 94-ORD-38. Although the Department indicates that new accounts are added as reported (and, we assume, deleted as property is claimed), its argument that the list is preliminary is premised on the fact that on the date Ms. Hines's request was made, it had not had an opportunity to issue notice to the owners of unclaimed property as required by KRS 393.110(2). This is simply not an adequate basis for denying access to a public record. Presumably, the list is constantly changing as new entries are added as reported and old entries deleted as property is claimed. If we accept the Department's reasoning, we must conclude that the record never becomes final.
We believe that the better practice is to treat the list, or the database from which it is generated, as an open record which is subject to inspection at all times. The information which appears in the list, or database, is required to be posted and published by the sheriff of the county where the property is located or held. KRS 393.110(1)(d). The information must be communicated by the Department through written notice to the owners of unclaimed property the value of which exceeds $ 100. KRS 393.110(2). Although there is no statutory requirement that it do so, the Department posts the information at the Kentucky State Fair "as a vehicle to locate owners of unclaimed property. " To suggest that Ms. Hines could have inspected the record at the Fair, but cannot now have access to it through the mechanism of an open records request, is unreasonable.
If the information contained in the database is of a sufficiently final nature at certain times to be made public, we see no reason why the information should be treated as preliminary at all other times. The most effective vehicle to locate owners of unclaimed property is to place the record in the public domain, thus enabling ordinary claimants as well as commercial finders the opportunity to freely and openly examine it.
We adopt the reasoning of 97-ORD-183 and apply it to the instant appeal. If information from the print screen is of sufficiently final nature to be published statewide in the Department's annual advertisement of the names and addresses of individuals whose property has been reported presumed abandoned, then we see no reason why it should be considered information of a preliminary nature for purposes of an open records request. The Department confuses the idea of a record used at preliminary stage of the process of discharging its duties under KRS Chapter 393 with the idea of a preliminary record. The two are not synonymous. Accordingly, we conclude the requested print screens do not constitute either preliminary notes or drafts. The Department improperly relied upon KRS 61.878(1)(i) in denying the request.
Next we address the Department's argument that the print screens contain information of a personal nature the disclosure of which would constitute an unwarranted invasion of personal privacy in violation of KRS 61.878(1)(a).
In her response, Ms. Hines indicates that in this and prior requests she does not seek confidential information, such as social security numbers or bank account numbers. She further indicates that in prior requests, including requests submitted as late as November 1997, the Department provided her with copies of the print screens after the confidential information was redacted. This, in her view, was consistent with the requirements of KRS 61.878(4). We agree.
KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
As noted above, the print screens contain information which is not exempt from inspection under the Open Records Act. The Department cannot properly invoke KRS 61.878(1)(a) to authorize wholesale nondisclosure of the print screens. It may, pursuant to KRS 61.878(4), redact individual entries where the public interest in disclosure is outweighed by the individual's privacy interest. Social security numbers and bank account numbers are examples of information of a personal nature the public the disclosure of which would constitute an unwarranted invasion of personal privacy. This information may properly be excluded from disclosure under KRS 61.878(1)(a). 96-ORD-51. Nevertheless, the fact that exempt and nonexempt information is commingled on the print screen does not excuse the Department from its obligations under the Open Records Act.
The Department argues that its computer system is unable to generate specific and individual print screens. That is, the setup of the computer database is such that private and confidential information cannot be disjoined from the rest of the information in the account. We are not persuaded that the Department is unable to provide copies of print screens with the confidential information redacted or masked. Ms. Hines enclosed, with her letter of appeal and December 28, 1997 response, copies of print screens provided to her by the Department in which the confidential information had been redacted. There has been no showing or claim that such masking constitutes an undue burden upon the agency.
Finally, consistent with the principles set out above and KRS 61.874(3), the Department may charge Ms. Hines a reasonable fee for copies of the forty-eight records she requested. KRS 61.874(3) provides for the imposition of a reasonable fee for making copies "which shall not exceed the actual cost of reproduction, including the cost of the media and any mechanical processing cost incurred . . ., but not including the cost of staff required." In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Court of Appeals found ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position in a long line of opinions. 96-ORD-186.
As the issue is not before us in this appeal, we do not address the $ 100.00 fee charged commercial finders for the annual report of all properties remitted to the Treasury. We do note that KRS 61.874 (4) has been declared unconstitutional by the United States District Court in Stephen Amelkin, D.C. v. Commissioner, Department of State Police , Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996) appeal docketed, No. 96-5942 (6<th> Cir. July 2, 1996), and is currently on appeal. See discussion in 96-ORD-273, copy attached.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.