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 question presented in this appeal is whether the Department of Workers Claims violated the Open Records Act in denying James Brennan's request, on behalf of DataLister, Inc., for certain data from the Department of Workers Claims Coverage/ Compliance database. For the reasons that follow, we find that the Department did not violate the Act in denying the request because the agency did not maintain the requested information in the format proposed by the requester and special programming would be required to fulfill the request.
In denying Mr. Brennan's request, Walter W. Turner, Commissioner, Department of Workers Claims, stated:
This will acknowledge your letter of January 13, 1999, received by the Department on January 20, 1999, wherein you request extensive data from the Department of Workers Claims Coverage/ Compliance database. You indicated that the information is requested for commercial purposes.
Pursuant to KRS 61.872(6), I respectfully decline to fulfill your request in that the application places an unreasonable burden upon this agency. Information that you have requested is not segregated and special programming would have to be accomplished to pull the fields that you have identified. At this time, the agency's Technical Support staff is taxed to the limit by system redesign, Year 2000, and other projects essential to the mission of the agency. I simply cannot divert resources to perform the programming necessary to fulfill your request.
Steven R. Weinstein, attorney, appealed the Department's denial on behalf of Mr. Brennan and DataLister, Inc. In his letter of appeal, Mr. Weinstein asserts that the Department has not established by clear and convincing evidence that his client's request would impose an unreasonable burden on the agency and "as it has done in the past, the Department can extract, with relative ease, all of the requested information from its computer database. "
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Stephen B. Cox, General Counsel, provided this office with a response, on behalf of the Department, to the issues raised in the letter of appeal. In his response, Mr. Cox stated, in part:
The Department of Workers' Claims maintains a data base upon more than eighty thousand (80,000) employers subject to the Workers' Compensation Act (KRS Chapter 342). Within this data base are the names and addresses of each employer, the federal employer identification number and other pertinent information as well as other fields identifying the carrier or group self-insurance fund, the policy number, date of commencement of coverage etc. Information within the data base changes daily as new employers obtain coverage and as policies of insurance terminate and new coverage is acquired.
DataLister, Inc. through its letter of January 13, 1999 requested ten fields of information upon more than eighty thousand employers and their insurance carriers. Updating information previously furnished to DataLister in response to a February 1998 request would be a more consuming task because of the programming necessary to eliminate redundancies than providing a complete data dump. Likewise, programming is required to eliminate protected fields (i.e. FEIN numbers). Additional programming would be required to meet DataLister February 1998 specification of:
The statutory defense of "unreasonable burden" must be established by "clear and convincing evidence. " ? Commissioner Turner has identified the specific problems which create this burden. Our agency is currently undertaking a complete "system design" that involves virtually every piece of hardware and software in use. In addition, the extraordinary problems of Y2K compliance and other "essential projects" are described with specificity sufficient to comply with the "clear and convincing" standard.
Equally as important, Commissioner Turner has explained to Mr. Brennan that the data is "not segregated and special programming would have to be accomplished to pull the fields that you have identified...."
We are asked to determine whether the Department violated provisions of the Open Records Act in denying Mr. Brennan's request. For the reasons set forth below, and upon the authorities cited, we conclude the Department did not violate the Act.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open record request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251; At page 2 of 93-ORS-50, we observed:
The Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, "What the public gets is what ? [the public agency has] and in the format in which ? [the agency has] it." OAG 91-12, p. 5.
As noted above, the Department declined to grant Mr. Brennan's request on the basis that the information from its database which he requested was not retained in the requested format and that to segregate and provide the information into the proposed format would require the agency to do special programming. We conclude the Department's actions were entirely consistent with the Open Records Act.
KRS 61.874(3) which provides, in relevant part:
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.
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. 96-ORD-75; 96-ORD-133.
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 requester's specific needs, but released the nonexempt records in the format in which they were regularly maintained. We affirmed the county's actions.
In 96-ORD-133, the Department of 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.
In the instant case, the Department notified Mr. Brennan that its database was not formatted to provide him with the information he requested and declined to specially tailor the format of its records to satisfy Mr. Brennan's request. Commissioner Turner, in his denial, indicated that the Technical Support staff was "taxed to the limit by system redesign, Year 2000, and other projects essential to the mission of the agency. I simply cannot divert resources to perform the programming necessary to fulfill your request."
Thus, the Commissioner, in the exercise of his discretion, determined that the resources of his staff were such that he could not allocate additional resources to create special programming to tailor its records to meet the parameters of Mr. Brennan's request. 1
We conclude that this was properly within the discretion of the Department and is consistent with KRS 61.874(3), the Open Records Act, and prior decisions of this office. Although, the Department may have provided similar information in the past, it still maintains the discretion of whether to honor a request for records in a nonstandard format by tailoring its records to meet the parameters of a particular request. We find no error in the instant exercise of that discretion.
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.
Footnotes
Footnotes
1 We note, that in exercising such discretion, under KRS 61.874(3), an agency is not required to establish by clear and convincing evidence that reformatting its records to satisfy the requesters' specific needs would place an unreasonable burden on the agency. However, if an agency denies an open records request on the basis that production of the public records, in their existing format, would place an unreasonable burden on it, this refusal must be established by clear and convincing evidence. KRS 61.872(6).