Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Treasurer properly denied Mindy Hines's January 31, 1998, request to inspect "the computer database containing unclaimed property accounts for the reporting year of 1997 for the purpose of compiling a list of accounts that have a value of $ 1,000 or greater." On February 9, 1998, Tim Lester, manager of the Unclaimed Property Branch of the Treasurer's office, responded to Ms. Hines's request, advising her as follows:
Since one aspect of your request, seeking to view our computer database, relates to issues pending in court and which I have addressed before, your request is denied. Furthermore, your request seeks a compilation of records for accounts with a value of $ 1,000 or greater. This would require Treasury to generate new documents, a provision not required under the Open Records Act.
For the reasons which follow, we reject the Treasurer's argument that Ms. Hines's request is tantamount to a request for records creation. We therefore affirm our decision in 98-ORD-7 relative to the duty to disclose its unclaimed property database.
This is not the first time that the Attorney General has been called upon to adjudicate an open records dispute relating to the Treasurer's unclaimed property database. In 97-ORD-183, we held that the Treasurer improperly withheld the list of unclaimed property owners which was posted at the Kentucky State Fair on the basis of KRS 61.878(1)(i) and (j). In 98-ORD-7, we went one step further and declared that the Treasurer improperly withheld the print screens of forty-eight abandoned property accounts reported in 1997. We rejected the argument that access to the accounts could be denied on the basis of KRS 61.878(1)(a), but acknowledge that social security numbers and bank account numbers could be redacted from the print screens pursuant to this exception and KRS 61.878 (4). Drawing on the reasoning set forth in 97-ORD-183, we concluded that the print screens were not shielded from disclosure by operation of KRS 61.878(1)(i).
98-ORD-7 was appealed to the Franklin Circuit Court pursuant to KRS 61.880(5)(a). Commonwealth of Kentucky - Department of Treasury v. Mindy Hines , No. 98-CI-00134 (Franklin Circuit Court, 1-28-98). No decision has been issued in that case, and the questions presented have not been finally resolved. The questions presented in this appeal are largely indistinguishable from the questions before the Franklin Circuit Court. In 98-ORD-7, Ms. Hines requested access to forty-eight unclaimed property accounts reported to the Treasurer in 1997. In the appeal before us, she requests access to the entire unclaimed property database for the 1997 reporting year. The difference is one of quantity and not of kind. This office is statutorily bound to issue a decision under the mandate found at KRS 61.880(2). We cannot "indefinitely postpone resolution of an appeal pending final action by the courts." 94-ORD-102, p. 8. We will continue to abide by our decision in 98-ORD-7 unless and until that decision is reversed in a final, unappealable judgment. Based on 98-ORD-7, we find that the Treasurer's office improperly denied Ms. Hines's request for access to its unclaimed property database for 1997.
In 98-ORD-7 we did not address the final argument advanced by the Treasurer's office in support of its denial of Ms. Hines's request, namely that deletion of exempt information from an existing database is tantamount to the creation of a record. Resolution of this issue, however, would not have changed the holding in our earlier decisions. This is because the Attorney General has adopted the position that the redaction of exempt information from an existing record (or database) does not create a new record. In 95-ORD-82 we analyzed KRS 61.878(4) in the context of a request for access to the Louisville Division of Police's arrest database. It is instructive to quote at some length:
That database apparently contains both adult and juvenile arrest records. Had Mr. Harris requested the same records in a hard copy format, and those records existed in that format, the Division of Police would be obligated, pursuant to KRS 61.878(4), to separate the juvenile arrest records from the adult arrest records, and would not be entitled to charge him for staff time expended in doing so. [Footnote omitted.] It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, we believe that the Division of Police must discharge its duty under KRS 61.878(4), and must bear the costs attendant to this duty.
It is, of course, well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. The agency may, of course, elect to do so, and under the Open Records Act as amended in 1994, recover its staff costs. KRS 61.874(3). We do not concur with the Division of Police in its view that the mere deletion of exempt information from an existing database results in the creation of an entirely new record. Requiring an agency to generate a previously nonexistent record upon request is not, in our view, equivalent to requiring it to redact exempt information from an existing record.
This position finds support in the language of the Act, as recently amended, and in a survey of other jurisdictions which have addressed this issue. The underlying rationale for these amendments is found at KRS 61.8715, which provides:
The General Assembly has also recognized, at KRS 61.940(7), one of the provisions which has been deemed "essentially related" to the Open Records Act:
These provisions, operating in tandem, suggest the need for state and local government agencies to manage and maintain their records in such a way that exempt and nonexempt information contained therein is easily separable, thus facilitating efficient and cost-effective retrieval of public records. Moreover, and as noted, KRS 61.878(4) mandates redaction of excepted material when it is commingled with nonexcepted material. The reasonable fee provision found at KRS 61.874(3) specifically excludes the cost of staff required. Clearly then, the General Assembly intended that public agencies bear the cost of redaction.
In addition to analyzing our own open records law, this office surveyed the law in other jurisdictions, finding ample support for the proposition that redaction of information is not equivalent to creation of a record. A copy of 95-ORD-82 is attached hereto and incorporated by reference. This issue having not been addressed in 97-ORD-183 and 98-ORD-7, we find that the Treasury cannot deny Ms. Hines's access to its unclaimed property database on the grounds that exempt and nonexempt information are commingled in the database, and redaction of the exempt information, followed by reinsertion of that information, is tantamount to creation of a new record.
Finally, we address the issue of cost. Although we briefly touched upon this issue in 98-ORD-7, that discussion was in the nature of dicta and therefore not dispositive. We now affirmatively state that this office cannot approve a policy of assessing copying costs based on the 1994 amendments to the Open Records Act. To the extent that the $ 100.00 fee imposed on commercial finders for copies of unclaimed property reports is based on KRS 61.874(4)(b), that policy is improper. This provision, along with the other 1994 amendments distinguishing between commercial and noncommercial use of public records, has been declared unconstitutional by the federal district court for the Western District of Kentucky. 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).
In Amelkin , the district court analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain, and had an immediate impact on attorneys and chiropractors who filed suits challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and in its judgment permanently enjoined defendants, including this office, from enforcing "the 1994 amendments to KRS 189.635 and KRS 61.874, et seq. , and ? KRS 438.065." (Emphasis added.)
The Treasurer's office relies on KRS 61.874(4)(b) in selling its unclaimed property report to commercial finders for $ 100.00. The Attorney General is enjoined from approving this policy. In light of the court's decision in Amelkin , declaring this statute to be constitutionally infirm, the Treasurer's office cannot assess Ms. Hines, or other commercial finders, a higher charge for a copy of its public records. It may only impose a reasonable copying charge based on its actual cost "including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." KRS 61.874(3); 96-ORD-168; 97-ORD-8; 98-ORD-17. The Kentucky Court of Appeals has declared that a charge of ten cents per page, for standard hard copy reproduction, represents a reasonable copying charge. Friend v. Rees, Ky.App., 696 S.W.2d 325 (1985).
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.