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 City of Olive Hill violated provisions of the Open Records Act in denying Jim Short's June 5, 2000, request to inspect the computerized city check registry from January 1, 1999, to the present. For the reasons that follow, we find that the City's denial of his request constituted a violation of the Act.
In a response dated June 7, 2000, City Clerk/Treasurer Cheri James explained that the registry contains personal information, including social security numbers and employee garnishments, the disclosure of which would result in a clearly unwarranted invasion of privacy. Relying on KRS 61.878(1)(a), she denied Mr. Short's request, arguing that "to create a document making the unexempted material available for examination would place an unreasonable burden upon the City." In a supplemental response directed to this office following commencement of Mr. Short's appeal, Ms. James elaborated on the City's position. She cited OAG 89-88 for the proposition that "the denial of a request to inspect some 800 records contained among twenty-seven files as unduly burdensome is supported by KRS 61.872(5) [sic] where the difficulty of separating confidential from nonconfidential materials is exacerbated by the substantial volume of records involved." Ms. James indicated that in order to protect the confidential information "the City would have to regenerate a check register just for Mr. Short's use and redacket [sic] in excess of an estimated 300 hundred [sic] lines." We do not find the City's arguments persuasive.
In 95-ORD-82, this office examined in depth a public agency's duty to redact exempt information, in the context of automated recordkeeping, when that information is commingled with nonexempt information. There, the City of Louisville maintained a database in which adult arrest records were commingled with juvenile arrest records which were excluded from public inspection by operation of KRS 610.320(3). The City attempted to impose a $ 240 charge "to create programs to separate material deemed confidential by law." We rejected the City's position, opining:
It is the position of the Division of Police that the deletion of exempt information from an existing database is synonymous with the production of a record in a non-standardized or specially tailored format, and that it is therefore entitled to recover the cost of staff, or programming time, as well as its actual costs, consisting of C.P.U. time and pages printed. We do not agree.
Mr. Harris requested a copy, in standard ASCII format, of a database currently maintained by the Louisville Division of Police in which it stores information relating to arrests. 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), 1 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.
95-ORD-82, pp. 3-4 (copy attached). Nor is it our view that requiring the City of Olive Hill to redact exempt information from the city check registry, whether electronic or hard copy, for a period of approximately one year and six months is unduly burdensome.
The City relies on OAG 89-88 in which this office affirmed the Department of Insurance's denial of a request for some 800 records located in some 27 files. The Department offered a detailed explanation of the difficulties associated with manually separating the nonexempt information from the exempt information among these 800 records and twenty-seven files. In the appeal before us, the City of Olive Hill offers only a minimal explanation to support its claim of undue burden, stating that the City would be compelled to redact "an estimated 300 . . . lines." It is the opinion of this office that this statement does not constitute clear and convincing evidence of an undue burden, and we therefore reject the City's position.
The Attorney General has long recognized that "amounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. Stated alternatively, "Where public funds go, the public's interest follows." 96-ORD-50, p. 4. It is for this reason that the Attorney General was spared debate on the issue of access to the City of Jeffersonville's check registry for a four-year period in OAG 87-54. There is no legally valid basis for denying access to the City of Olive Hill's check registry once the excepted information contained therein has been redacted.
With respect to the issue of whether Mr. Short must be permitted to access the City's computers in order to inspect the registry, we refer the parties to 00-ORD-8, a copy of which is attached hereto and incorporated by reference, holding that if an alternative mechanism for inspection of electronic records exists, namely printing out the registry in hard copy format, the requester cannot persuasively argue that unreasonable restrictions on inspection were imposed. Mr. Short and the City of Olive Hill should be guided by the principles set forth in that decision in resolving any lingering issues related to inspection.
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 proceedings.
Footnotes
Footnotes
1 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.