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 violated the Open Records Act in the disposition of Donald Rucker's May 22, and June 1, 2001, requests for:
Specific statistical information from 1/1/90 1 until present for: 1) PFO I and PFO II offenders that received actual prison sentences in which that offender has never been in prison until the PFO I or PFO II conviction; 2) PFO I and PFO II offenders that received actual prison sentences in which that offender has never been in prison until the PFO I or PFO II conviction [and in] which out-of-state conviction(s) were used.
Although its response to Mr. Rucker's June 1, 2001, request was procedurally deficient, we otherwise affirm the Department's disposition of his requests.
In his May 31 response to Mr. Rucker's May 22 request, William D. Clark, System Consultant in the Department's Information and Technology Branch, stated that the information sought "is not contained in [the Department's] computerized files." On behalf of the Department, he argued that "the intent of the Open Records Act is to allow access to public records, [and] we are not required to compile or generate a report if such information/documentation has not already been compiled. " He noted that extraction of the requested information would "require programming time by this office," at a cost of fifty dollars per hour.
On June 1, Mr. Rucker submitted a nearly identical request for the same statistical information. Three days later, Geraldine Glass, Assistant Branch Manager in the Department's Offender Information Services, notified Mr. Rucker that his request had been forwarded to the Information Technology Branch "for further processing. " Mr. Rucker received no further communication from the Department until June 28, 2001, one day after he inquired about the status of his request. Echoing the Department of Correction's earlier response on June 28, Ms. Glass informed Mr. Rucker that the Department was not obligated to honor a request for information that had not already been compiled, that the information identified in his request had not been compiled, but that it could be extracted from the inmate database system at a cost of fifty dollars per hour "for necessary programming and compiling of such information." It is from this response that Mr. Rucker appeals.
In a letter directed to the Attorney General following commencement of this appeal, Department of Corrections Staff Attorney William R. Lundy, Jr. amplified on the Department's position. Mr. Lundy reiterated that public agencies are not obligated to compile statistical data that is not otherwise maintained, and that the Department properly so advised Mr. Rucker. He defended the fifty dollars per hour programming fee, noting that Mr. Rucker "had provided no evidence to suggest that [it] was unreasonable other than the fact that he is an indigent inmate. " In closing, Mr. Lundy maintained that the Open Records Act "does not require the Department to provide programming services to indigent inmates gratis, or at a reduced rate, simply because they claim indigence." An analysis of the Department's position follows.
We begin by noting that the Department's response to Mr. Rucker's June 1, 2001, request was deficient. KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute 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.
KRS 197.025(7) exempts the Department of Corrections from the three day deadline for response, providing:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
(Emphasis added.) Notwithstanding the extension of time for response, it is incumbent on the Department to notify the requester of its decision in writing, and within five business days. Although Ms. Glass advised Mr. Rucker that his request had been forwarded to the Information Technology Branch within three days of receipt of that request, this did not relieve the Department of its duty to issue written notice of its decision within five business days. Some nineteen business days elapsed between the date of Mr. Rucker's request and the date on which Ms. Glass notified him of the Department's decision. To this extent, the Department's response was procedurally deficient.
Turning to the substantive issue in this appeal, we find that the Department correctly argues that it is not obligated to honor Mr. Rucker's request for the compilation of statistical data that is not already maintained. To paraphrase an earlier open records decision, we believe that a requester does not have a right to require that statistics be compiled if the statistics requested do not already exist. OAG 76-375, p. 3. This position is premised on the recognition that the provisions of the Open Records Act "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. "The primary impact of the . . . Act, "this office has observed, "is to make records available for inspection and copying and not to require the gathering and supplying of information." 95-ORD-82, p. 3.
In 01-ORD-121, this office addressed a similar issue. There, the requester requested statistics on the racial profiles of PFO I and II offenders serving time for various offenses. We affirmed the Department's denial of the request on the basis that it was not obligated to honor a request for information. With reference to the fifty dollar per hour "research" charge the Department indicated it would impose on the requester in the event he opted for the creation of a new document, we indicated that we knew of "no authority under which a public agency can charge fifty dollars per hour to research its files and compile a record to meet the parameters of an open records request." 01-ORD-121, p. 3.
Here, the Department characterizes the fifty-dollar charge as a "programming" charge. KRS 61.874(3) permits public agencies to "prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes," but that fee may "not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing costs incurred by the public agency, but not including the cost of staff required." "Media" is defined at KRS 61.870(7) as "the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards." "Mechanical processing" is defined at KRS 61.870(8) as "any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device." Although they are not required to do so, public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing, incur "actual costs" in addition to media and mechanical processing costs. At the state agency level, this would include programming and central processing unit (CPU) charges imposed on the agency by the Governor's Office of Technology to extract the information. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester. The fifty dollar per hour charge which the department seeks to impose is consistent with KRS 61.874(3) only if it reflects actual costs incurred, and can be substantiated based on the criteria set forth above.
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.
Donald Rucker, # 125104Kentucky State Reformatory3001 West Highway 1465LaGrange, KY 40032
Geraldine GlassAssistant Branch ManagerDepartment of CorrectionsOffender Information Services Branch, Room G-19P.O. Box 2400Frankfort, KY 40602-02400
William D. ClarkInformation & Technology BranchDepartment of Corrections2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400
Steve DurhamDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400
Footnotes
Footnotes
1 Mr. Rucker's first request was narrower in scope, seeking statistical information for the period from January 1, 1995, to the present.