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 Cabinet for Health Services violated the Open Records Act in responding to Representative Jim Stewart's July 24, 1998, request for a list of babies born in four hospitals in or near his legislative district and the addresses of their mothers. For the reasons that follow we find that the Cabinet's response, although untimely, did not otherwise violate the Act.
In a response dated August 14, 1998, Ellen M. Hesen, general counsel for the Cabinet for Health Services, advised Representative Stewart that the Cabinet does not maintain a list of live births by hospital, and that general access to birth records is prohibited by KRS 213.131(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Ms. Hesen noted that a special program could be created to retrieve the records that Representative Stewart requested at a cost of $ 1,462, but that he must bear this cost. As an alternative, she suggested that Representative Stewart review the Birth and Death Index which is maintained by the Registrar of Vital Statistics, and which is current through April, 1998.
In a subsequent letter to this office, Ms. Hesen explained the shortcomings of this approach:
This registry consists of an index of births by month listing the mother's name; the infant's name; the date of birth and the county of birth. That document is an open record, and Representative Stewart or his agents could obtain the raw information and then specifically ask for a copy of the birth certificate. For births occurring in the calendar quarter preceding the request, the Cabinet would provide a copy of the specific certificate requested at the cost per certificate of $ 9.00 pursuant to KRS 213.141(2). One other factor to this option is that the agency has readily available to it for approximately that one calendar quarter the actual certificates of live birth. The records are then placed on computer programs and the document produced is a record of live birth form which does not include parental addresses. The agency is only able to produce copies of the actual certificates containing parental addresses for the preceding calendar quarter. The actual certificates are then placed in the vault containing all records of vital statistics. It is not logistically feasible for the agency to return to its vault; dismantle the volumes containing the records; copy the records; and reassemble the volume for every request it receives.
In closing, Ms. Hesen noted that the Cabinet suggested "alternatives to the general rule of no access to records set forth in KRS 213.131(1)," but acknowledged that "both alternatives have either financial or logistical downsides." She emphasized that the Cabinet had approached Representative Stewart's request as it would have approached a request from "any private citizen seeking the same information," relying on applicable statutes and opinions of this office construing them. We believe that the Cabinet's approach is legally sound.
We begin with the basic premise that access to vital records is governed by chapter 213 of the Kentucky Revised Statutes, and in particular, KRS 213.131. Two subsections of that statute are directly relevant to this appeal. KRS 213.131(1) and KRS 213.131(2) provide:
1. To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.
2. The state registrar shall prepare annually an alphabetical list of all persons registered as born in the preceding year. The list shall show the person's name, the mother's maiden name, and the date and county of birth. This list shall be an open record subject to inspection by the public upon request.
The Kentucky General Assembly has thus firmly and unambiguously spoken on the issue of public access to vital records, declaring that unimpeded access is prohibited but that limited access is permissible via the registry of births generated pursuant to KRS 213.131(2).
"Our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994). KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 213.131(1) restricts public access to vital records, including records of birth. The Cabinet for Health Services was therefore foreclosed from affording Representative Stewart unrestricted access to those records.
Representative Stewart requested "a list of babies born in four hospitals in or near [his] legislative district and the addresses of their mothers." The Cabinet responded that it does not maintain a list of births in the four hospitals which serve his legislative district. In an early open records decision, upon which the Cabinet relies, this office observed:
A person does not have a right to require a list to be made from public records if the list described does not already exist. If the list exists and is not otherwise confidential by law, a person may inspect the list and obtain a copy of it.
OAG 76-375, p. 3. This position finds support in numerous decisions of the Attorney General issued since 1976. Thus, at page 2 of OAG 79-547, this office stated:
It is not necessary for an agency to make a list of items from its records if such a list does not already exist. [Citation omitted.] The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law.
We echoed this view in OAG 86-51, noting, "If a list containing the requested material has been compiled that list should be made available for public inspection. However, such a list need not be compiled merely to satisfy a request for documents made under the Open Records Act. " OAG 86-51, p. 4. Three years later we reaffirmed this position, declaring that open records provisions "do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request." OAG 89-77, p. 4. Again, in 1993, we recognize that "the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." See also 95-ORD-82, p. 3 (holding that "a public agency is not required to create a document that does not already exist to satisfy a request"); OAG 90-100 (holding that a person does not have a right to require a list to be made . . . [;] if the list exists and is not otherwise confidential by law, a person may inspect the list and obtain a copy of it"); OAG 92-99 (holding that agency properly advised the requester 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 Representative Stewart could not be afforded unrestricted access to these birth records, and because no list exists which contained the information he sought, the Cabinet agreed to develop a computer program, at his cost, to retrieve that information. The Cabinet's actions were entirely consistent with KRS 61.874(3) which provides:
If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
On at least two occasions prior to this one, the Attorney General has recognized that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively.
In 96-ORD-75, the requester sought access to certain categories of information maintained in the county's occupational license database. The county declined to specially tailor the format of its records to satisfy the requesters' specific needs, but released the nonexempt records in the format in which they were regularly maintained. We affirmed the county's actions. Similarly, in 96-ORD-133, the Department of the Kentucky State Police was asked to produce records of citations issued in three counties for offenses created under KRS 177.305 and KRS 189.150. The Department responded that it did not maintain the records by county or type of offense, but agreed to release the records in their existing format. Again, we affirmed the agency's actions, noting:
The Open Records Act requires no more. It is 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. At page 5 of OAG 91-12, this office observed "What the public gets is what [the agency has] and in the format in which [the agency has] it." 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). Compare, 95-ORD-82 (holding that the mere deletion of exempt information from an existing database does not result in the creation of a new record). As noted, the State Police have properly exercised their discretion in declining to tailor their records to satisfy [the] request, and have expressed their willingness to allow . . . access [to the records] in their existing format.
96-ORD-133, p. 3.
Here, of course, the Cabinet cannot afford Representative Stewart unrestricted access to its confidential vital records, but has affirmatively exercised its KRS 61.874(4) discretion to tailor the format of the records to meet his request at a cost to him which is consistent with that provision. If Representative Stewart does not wish to absorb this cost, he may simply decline the Cabinet's offer; however, we find no error in the Cabinet's actions relative to the proposal.
As a final alternative, the Cabinet suggested that Representative Stewart review the Birth and Death Index, which is maintained by the Registrar of Vital Statistics as an open record pursuant to KRS 213.131(2), to extract the information he seeks. Again, the Cabinet's actions were consistent with the spirit and the letter of the Open Records Act. As noted above, the Open Records Act is not intended as a mechanism for commanding compilation of specific information. Instead:
Where a person requests that a list of material be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. Thus, if the records and materials requested, although not compiled in any kind of a list form, are nevertheless in the possession of the public agency, the files containing those public records should be made available for public inspection in order that the requesting party may attempt to secure the particular documents and records with which he is concerned.
OAG 86-51, p. 4. Just as in 96-ORD-133 and 96-ORD-75, the public agencies properly exercised their discretion to produce the nonexempt records in their existing format, pursuant to KRS 61.874 (3), so, in the appeal before us, the Cabinet for Health Services has properly exercised its discretion. If neither of the Cabinet's proposals are acceptable to Representative Stewart, he will have to obtain the information he seeks elsewhere, as, for example, from the local newspaper which, as Ms. Hesen correctly observes, often publishes this information. For purposes of this open records appeal, we find no substantive error in the Cabinet's response.
In closing we note that the Cabinet's response was procedurally defective. KRS 61.880(1) 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 agency action.
(Emphasis added.) The Cabinet received Representative Stewart's request on July 27, 1998. The Cabinet responded to the request on August 14, 1998. Thus, some fourteen business days elapsed between the date of the request and the date of the response. This exceeded the statutory deadline by eleven business days. The Cabinet violated the Act by failing to respond to Representative Stewart in a timely fashion. We urge the Cabinet to review KRS 61.872(4) and (5), as well as the cited provision, to insure that future responses conform to the Open Records Act.
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.