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 Department of Corrections properly relied on KRS 61.870(2), 61.878(1)(a), and 61.878(1)(l), incorporating KRS 17.150(4), in denying Daily News general manager Ed Rains' request for computerized criminal record data maintained by the Department. For the reasons that follow, we conclude that the Department's reliance on the statutes was misplaced, and that it violated the Open Records Act in denying Mr. Rains' request.
On November 4, 1999, Mr. Rains requested criminal record data pertaining to "felony dispositions going back as far as [the Department had] computerized data," and consisting of:
Case Number
County /Jurisdiction/Location
Defendant Name (First, Middle, & Last)
Defendant Date of Birth
Defendant Race/Sex
Date (or Date Range) of Sentence
Crime/Offense and/or Code Section under which Sentenced
Sentence/ Fine, Time to be Served
On November 10, Mr. Rains received notice from Jack B. Ellis, Branch Manager of Information and Technology in the Department of Corrections, that the Department would honor his request for a cost of $ 80.00. Shortly thereafter, Mr. Ellis notified Mr. Rains that the Department would produce some 90,000 records dating back to January 1, 1978, indicating that monthly updates would be provided upon prepayment of the $ 80.00 charge. The Department then forwarded the computerized data to The Daily News . Mr. Rains requested, paid for, and received, monthly updates in January, February, March, April, and May of this year.
On July 11, 2000, Mr. Rains again submitted a request for a monthly update. In a letter dated July 20, 2000, Department of Corrections Staff Attorney Tamela Biggs denied this request, advising Mr. Rains as follows:
Your request is hereby denied pursuant to KRS 61.870(2), 61.878(1)(a) and (l) and 17.150(4). Following numerous such requests, research into the legality of releasing certain types of information and documents was conducted. KRS 61.870(2) defines the term "public record" rather broadly; however, the term does not encompass records which are not related to functions, activities, programs or operations of the public agency (emphasis added). You are requesting information , including personal, identifying information (e.g., social security number, date of birth, etc.) for the inmate population, rather than non-exempt public records. This information does not reflect upon the functions, activities, programs or operations of the public agency; therefore, it is not a public record. The purpose of the Open Records Act is to provide access to non-exempt public records that allow taxpayers to monitor the functions and activities of an agency and its employees. Inmate information does not serve this purpose. The purpose of the Open Records Law is not to provide information but to provide access to public records not exempted from inspection by law. OAG 89-61.
KRS 17.150(4) provides that centralized criminal history records, collected and compiled by the Justice Cabinet, are not subject to public inspection. Therefore, the information requested from the Department's database is exempt from disclosure.
Following receipt of this denial, The Daily News initiated an open records appeal through its attorney, Jon L. Fleischaker.
On appeal, Mr. Fleischaker argued that the computer records that Mr. Rains requested are clearly public records, as defined in KRS 61.870(2), because they consist of "documentation, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " He also challenged the Department's reliance on KRS 61.878(1)(a) as a basis for withholding the record in its entirety because that exception arguably protects birth dates and social security numbers. He maintained that Mr. Rains did not request the latter, and that the public's interest in disclosure of the former outweights the inmate's privacy interest. Finally, he rejected the Department's argument that KRS 17.150(4) prohibits disclosure of felony disposition data in its custody, noting that the prohibition applies to centralized criminal history records maintained by the Justice Cabinet, and not to "documents maintained by criminal justice agencies which are the source of information collected by the Justice Cabinet." KRS 17.150(4).
In a supplemental response directed to this office following commencement of Mr. Fleischaker's appeal, Ms. Biggs elaborated on the Department's position. She analogized Mr. Rains' open records request to the open records request for a published decision in the Supreme Court Reporter at issue in 99-ORD-35. In affirming the Department's denial of the request, Ms. Biggs observed, the Attorney General reasoned:
While those records may technically be "public records, " since they are "retained by a public agency, " their disclosure would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act.
99-ORD-35, p. 4; also citing 99-ORD-181 and 00-ORD-130. It was the Department's position that "the database is not a 'public record' as defined by KRS 61.870(2) as it is not evidence of the manner in which the business of the Department is conducted . . . [and] it does not enable the public to monitor the Department's daily functioning, programs or operations." In sum, Ms. Biggs asserted, "the database is a compilation of criminal history and institutional supervision and release information for the inmate population . . . [that] does not touch upon any of the [Department's statutory] functions set forth in KRS 196.030."
In support of the position that KRS 17.150(4) bars disclosure of the database, the Department maintained:
KRS 196.093 mandates that the Department shall record data and provide access to the named governmental entities. KRS 17.150 requires certain agencies to compile and report data to the Justice Cabinet. Subsection (4) states that "centralized criminal history records are not subject to public inspection. " The Appellant argues that KRS 15A.020 and 17.131(1) distinguish the Department from the Justice Cabinet. KRS 15A.020 states that "there is established within the [Justice] Cabinet a Department of State Police, a Department of Corrections, and a Department of Criminal Justice Training." The Appellant's argument that the Department is merely a criminal justice agency that provides information to the Justice Cabinet appears viable in theory; however, the practice indicates that the Department is the Justice Cabinet for purposes of KRS 17.150. The Department receives information regarding criminal activity from law enforcement agencies in all 120 counties. The Department also receives information regarding time served on felony convictions from other jurisdictions. The information is received in a variety of forms and must be coded into the database by the Department's designated records personnel. This information is shared with the State Police in order to fulfill the requirements of KRS 27A.310 to 27A.440 because the Department's database includes information regarding offender level as required by KRS 27A.320, information regarding probation and other non-imposition of sentence as required by KRS 27A.410 and information regarding an inmate's institutional level as required by KRS 27A.430, among others.
. . .
The Department was mandated to take part in the system pursuant to KRS 196.093. The Kentucky State Police, the Department for Juvenile Justice, the Cabinet for Health Services, and the Administrative Office of the Courts were each mandated to cooperate in the sharing of information by statute. In order to give KRS 17.150(4) any viable meaning, the information collected and compiled by the Department must be protected whether it is contained in the Department's computer terminal or a terminal at State Police. . . . The Legislature intended that the Department, State Police, Department for Juvenile Justice, Cabinet for Health Services and Administrative Office of the Courts freely share the portions of information that each had compiled in compliance with KRS Chapter 27A. The Legislature also intended that information compiled by the Justice Cabinet be exempt from public disclosure. The intent would be thwarted if the Department's database were subject to disclosure prior to the sharing of it with the State Police. Since the Department is the Justice Cabinet for purposes of the collection and compilation of criminal history data from multiple jurisdictions, it enjoys the protection afforded by KRS 17.150 and should not be disclosed.
Ms. Biggs did not elaborate on the argument that the database also qualifies for exclusion under KRS 61.878(1)(a).
Acknowledging that there appears to be no controlling authority on the issue Mr. Fleischaker's appeal raises, and that there is a certain logic to the Department's position, we nevertheless reject each of the arguments advanced in support of its denial of Mr. Rains' request. It is the opinion of this office that the database maintained by the Department of Corrections is a public record for purposes of the Open Records Act, and, at least with reference to the fields of information requested, does not qualify for exclusion under either KRS 61.878(1)(a) or KRS 61.878(1)(l), incorporating KRS 17.140(5). We address each of the arguments advanced by the Department below.
Department of Corrections database is a public record.
We reject the Department's argument that its database is not a public record because it is not related to its functions, activities, programs, or operations, and that therefore its disclosure would not promote the public's right to know. In her supplemental response, Ms. Biggs delineates the Department's statutory functions, codified at KRS 196.030:
(a) Management of penal, reform, and correctional institutions;
(b) Supervision of probation and parole;
(c) The giving of assistance to other departments, agencies, and institutions of the state and federal government when requested by performing services in conformity with this section;
(d) Acting as agent of the federal government in matters of mutual concern, and in the administration of any federal funds granted to the state to aid in the performance of any function of this department;
(e) Administration and enforcement of the provisions of KRS Chapter 441 relating to the development and enforcement of jail standards, training of jailers and jail personnel, and jail planning and construction.
Critical to an assessment of the Department in the discharge of its duty to manage penal, reform, and correctional institutions, and to supervise probation and parole, is the ability to look behind the institutional walls at the individuals who comprise the inmate population, and to determine their names, ages, races, and genders, as well as the nature of the offense for which they were sentenced, the date of their sentencing, and the sentence imposed. The Department of Corrections acknowledges that the database contains "a compilation of criminal history and institutional supervision and release information for the inmate population," and it is precisely for this reason that its disclosure facilitates public oversight of the Department's statutory duty to manage correctional institutions and supervise probation and parole.
At a more fundamental level, however, we need not engage in this analysis inasmuch as the database is unquestionably a "public record" as that term is defined at KRS 61.870(2). "Public record":
means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authorities.
This definition is inclusive, extending to all "documentation regardless of physical form or characteristics," and the medium in which they are stored, electronic or hard copy. As Mr. Fleischaker correctly notes, the Department's reliance on the last sentence of KRS 61.870(2) to support its position that the database is not a "public record" is misplaced since that sentence applies exclusively to "a body referred to in subsection (1)(h) of [KRS 61.870]," that is a "body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." The Department of Corrections is a department of state government, and a "public agency" within the meaning of KRS 61.870(1)(b). Accordingly, records which are prepared, owned, used, in the possession of, or retained by the Department are clearly "public records" for purposes of the Open Records Act.
To the extent that the open records decisions cited by the Department for the proposition that legal reference materials in its own custody or in the custody of correctional facilities are not "public records, " because their disclosure "would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act, " may somehow be interpreted as inconsistent with this position, those decisions are thenceforth and for all purposes restricted to their unique facts. While we continue to ascribe to the view that the Department, and the correctional facilities it manages and supervises, are not obligated to perform legal research and produce case law and statutes in response to an inquiry improperly labeled an open records request, these decisions do not vest the Department with discretion to determine that records in its custody are not public because they are "not related to its functions, activities, programs, or operations." Those portions of 99-ORD-35, 99-ORD-181, and 00-ORD-130 that contain this language are hereby withdrawn, and cannot be relied upon by the Department as the basis for exercising such discretion.
Requested entries from database may not be withheld on the basis of KRS 61.878(1)(a).
The Department of Corrections next argues that access to the requested entries from its database may be denied on the basis of KRS 61.878(1)(a). Specifically, the Department asserts that personal, identifying entries, such as date of birth, 1 are protected from disclosure because inspection of these entries does not advance an open records related public purpose. Based on this premise, the Department constructs a theory that all of the requested entries must be withheld. We find the Department's position legally untenable.
In analyzing the propriety of an agency's invocation of KRS 61.878(1)(a), authorizing the withholding of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy," we begin with a determination of whether the information requested, here date of birth, constitutes information of a personal nature. Only if there is a cognizable privacy interest in the information do we proceed to the second part of the analysis: Determining whether public disclosure of the information would constitute a clearly unwarranted invasion of personal privacy.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992);
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). We are at all times guided by the observation that "the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink at 829.
This office has, on more than one occasion, recognized that an individual's date of birth, and by extension, his age, is information of a personal nature in which he has some expectation of privacy. See, e.g., 98-ORD-100 (dates of birth of witnesses to crime appearing on witness statements may be withheld since disclosure would do little to further the citizens' right to know); 98-ORD-186 (date of birth appearing on complaints filed with Human Rights Commission may be withheld unless complainant has alleged age discrimination); 95-ORD-12 (citing OAG 82-506 and OAG 91-202) and 00-ORD-90 (public employees' dates of birth appearing in personnel files excluded from public inspection because age is unrelated to performance of public duties). Focusing on the citizens' right to be informed as to what their government is doing, we determined in each of these decisions that the public's interest in disclosure was subservient to the privacy interests of individuals in information that "revealed little or nothing about an agency's own conduct." Zink at 829. We have not had occasion to address this question in the present factual context, namely, whether an inmate's privacy interest in his date of birth outweights the public's interest in monitoring the conduct of the Department of Corrections in responding to the demands of a multi-generational inmate population.
We begin by noting that an inmate has a reduced expectation of privacy in information relating to him. In an early open records decision, the Attorney General recognized that when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his right of privacy to a certain extent. OAG 76-511; See, e.g., OAG 83-212 (identification photographs of persons arrested or incarcerated is open to public inspection) ; OAG 81-395 (jail records containing names of persons lodged in jail as inmates must be disclosed); 93-ORD-102 (visitors log reflecting names of persons visiting inmates in jail are not excluded from public inspection) . 2 Accordingly, we attach less weight to the inmate's privacy interest in his date of birth than we would otherwise attach to an individual's date of birth.
Against this reduced expectation of privacy we weigh the competing public interest in disclosure. As noted above, at the heart of the Department of Corrections' legislative charter is the duty to manage correctional institutions and supervise probation and parole. As noted above, an analysis of the Department in the discharge of these duties cannot be conducted in a depersonalized vacuum. Simply stated, it is not the facilities alone that the Department manages and supervises, but the individuals who occupy the facilities and comprise the inmate population. The public interest in determining how effectively the Department is responding to the demands of this diverse inmate population is weighty indeed, and access to records reflecting this diversity is a precondition to meaningfully assessing the Department's response thereto. Given the reduced expectation of privacy which an inmate must accept as a necessary condition of his confinement, the fact that the particular piece of information in dispute is already available for inspection in law enforcement and court records, and the superior public interest in monitoring the conduct of the Department of Corrections in discharging its statutory duties, we conclude that the Department's reliance on KRS 61.878(1)(a) to authorize nondisclosure of the database entry reflecting inmates' date of birth was misplaced.
Additionally, we remind the Department that even if access to this entry had properly been denied on the basis of KRS 61.878(1)(a), access to the remaining entries could not have been denied absent statutory authority. As Mr. Fleischaker correctly observes, pursuant to KRS 61.878(4) public agencies have an affirmative duty to separate exempt material which is commingled with nonexempt material in a public record, and make the nonexempt material available for inspection. An obvious corollary of this provision is that no request to inspect or copy a public record can be denied on the grounds that exempt material is commingled with nonexempt material. We urge the Department of Corrections to bear this observation in mind in responding to future open records requests.
KRS 17.150(4) does not authorize nondisclosure of Corrections database
The final argument advanced by the Department of Corrections in support of its denial of Mr. Rains' request is also unpersuasive. That argument is based on the confidentiality provision found at KRS 17.150(4) which provides:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice Cabinet . Criminal justice agencies shall retain the documents and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
(Emphasis added.) The Department maintains that it is not merely a criminal justice agency which is a source of information collected by the Justice Cabinet, but that it " is the Justice Cabinet for purposes of KRS 17.150," and that access to its database would defeat the rationale underlying the confidentiality provision. (Emphasis in original.) Ms. Biggs explains that KRS 196.093 mandates the Department of Corrections' participation in the centralized records system, and that pursuant to KRS 27A.310 to 27A.440 the Department imputs information regarding offender level (KRS 27A.320), information regarding probation and other non-imposition of sentence (KRS 27A.410), and information regarding an inmate's institutional level (KRS 27A.430), "among others." In addition, the Department receives information regarding criminal activity from law enforcement agencies in all 120 counties, and information regarding time served or felony convictions in other jurisdictions. While it is no doubt true that much of the information stored in the Justice Cabinet's centralized criminal history records system mirrors information stored in the Department's database, and that access to the latter arguably defeats the purposes for which KRS 17.150(4) was enacted, the language of the relevant statutes simply does not support the Department's position.
KRS 17.140(1) provides that "[a] centralized criminal history record information system shall be established in the Justice Cabinet under the direction, control, and supervision of the commissioner of the Department of State Police." Under authority of this provision, as well as KRS 17.147 and KRS 17.151, it is the Department of State Police which is responsible for the collection and maintenance of the system for the Justice Cabinet, and not the Department of Corrections. 3 Instead, the Department of Corrections is characterized as a "criminal justice agency" mandated to furnish data to the Justice Cabinet at KRS 17.131(1). See also, KRS 17.150(1) and 502 KAR 30:010 Section (3)(b). As such, its database is specifically excluded from the application of KRS 17.150(4) as a "source of information collected by the Cabinet." Had the legislature intended to broaden the scope of this confidentiality provision, it could have done so by omitting the highlighted language, and expressly referencing Corrections. Regardless of what the "practice" is, the Department of Corrections' database is not the centralized criminal history record system, and the language of the cited statutes does not support this interpretation. Accordingly, we find that the Department of Corrections' reliance on KRS 17.150(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 4 was misplaced, and that there being no other legally supportable basis for its denial, the Department is obligated to resume furnishing The Daily News with the database entries requested.
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 We do not address the propriety of the Department's denial of access to inmates' social security numbers inasmuch as Mr. Rains did not request this information.
2 In addition, numerous public records in the custody of law enforcement agencies and the courts, including the uniform citation, contain the offender's date of birth and are available for public inspection. This fact further undermines the Department's position.
3 Denial of access to the centralized criminal history records system maintained by the State Police has been approved in a series of open records decisions dating back to 1976. See OAG 76-604; OAG 77-28; OAG 82-288; OAG 88-63.
4 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."