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 Treasury violated the Open Records Act in the disposition of Mindy Hines' February 7, 2002 request for:
A list of the ten largest unclaimed accounts (that remain unclaimed as of the date of the request) for each of the years 1990-2000; which includes the dollar amount and the property description. 1
For the reasons that follow, we affirm the Treasury's disposition of Ms. Hines' request.
In a response dated February 8, 2002, Unclaimed Property Division Director Brenda L. Sweatt notified Ms. Hines that based on the Kentucky Court of Appeals' decision in Hines v. Department of Treasury, Ky. App., 41 S.W.3d 872 (2001), the Treasurer "do[es] not release the amount of an account." Ms. Sweatt explained:
The lists that we have available are lists for the years 1991 through 2000. These lists are printed on an as-requested basis . . . at a cost . . . of $ .10 per page.
The information contained in the lists is the owner name; property type/description; holder id, suffix and year; holder name and address.
In closing, Ms. Sweatt agreed to provide Ms. Hines with a copy of the list for any of the available years upon request and prepayment for receipt of copies.
On appeal, Ms. Hines distinguishes the Court of Appeals' decision in Hines, above, asserting that the court approved nondisclosure of individualized valuation information regarding unclaimed property, and not "a dollar amount and the property description associated with that amount" which she seeks. It is her position that because the owners' names are not requested, the Treasury's reliance on KRS 61.878(1)(a) is misplaced. "To have an unwarranted invasion of 'personal' privacy, " Ms. Hines concludes, "you must first have a 'person.'"
In a supplemental response directed to this office following commencement of Ms. Hines' appeal, Treasury Counsel Robert S. Jones elaborated on his client's position. He maintained that the current request is "tailored to allow Ms. Hines to use property descriptions/type accounts to match the amounts held by the Treasury to the identities of the people for whom those accounts are held by using information previously provided by the Treasury in the form of its annual reports." Acknowledging that there is no direct correlation between the information requested and the information already disclosed, Mr. Jones nevertheless opined that "Ms. Hines could, in some cases, find the specific identity of the owner, and in others, narrow the identity of the owner to just a few individuals, depending upon the nature of the property description."
Alternatively, Mr. Jones argued that unlike previous open records requests submitted by Ms. Hines for "copies of documents which either currently existed, or could be generated from the Treasury database based upon existing search programs," the list that is identified in the request that gives rise to this appeal "is not a document maintained by the Treasury in paper form and further the database from which the information might be derived is not set up to perform such a search." He explained that the list "would have to be created by hand by an employee of the Treasury who, after extensively reviewing the databases for accounts held in each year would put together the lists requested." Relying on 97-ORD-56, 96-ORD-139, and 95-ORD-48, Mr. Jones asserted that a public agency is not required to create a record to satisfy a particular open records request.
In rebuttal, Ms. Hines submits five "facts" that, in her view, disprove the Treasury's arguments. Chief among these is the "fact" that the Court of Appeals' decision upon which the Treasury relies relates to "individualized valuation information that would include the value of a private citizen's item of property," and the "fact" that even if the Treasury is not required to create a document to satisfy her request, she must be permitted to inspect existing records to extract the information she seeks. In support of the latter proposition, she notes:
OAG 86-51 states that a public agency's denial of a request for documents is proper to the extent that the public agency declines to prepare and furnish lists which are at the time not in existence, but the denial is improper to the extent that it states or implies that the requesting party will not be afforded the opportunity of examining otherwise nonexempt material to secure the particular records and documents with which he is concerned.
Finally, Ms. Hines submits the "fact" that, notwithstanding its protestations to the contrary, "[t]he Treasury can make a report for each of the years requested that includes the specific fields of 'Property Type' and 'Amount' . . . [and] place those amounts in descending . . . order." We do not find Ms. Hines' arguments persuasive.
It is the opinion of this office that the Treasury correctly asserts that it is not obligated to honor Ms. Hines' request for a list that does not currently exist. In an early open records decision, the Attorney General 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 recognized 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"). The Treasury has no list corresponding to Ms. Hines' request. To require the Treasury to create a list to conform to her request would be tantamount to reading an additional duty into the Open Records Act which the Act does not mandate.
Nor do we believe that the Treasury is required to permit Ms. Hines unrestricted access to existing records to "secure the particular records" she seeks. While it is certainly true that a requester "should be afforded the opportunity to expend his own time and effort in digging out information" that has not been compiled as requested, this opportunity cannot be extended to a requester if the records containing the information are "excluded from public inspection under KRS 61.878." OAG 86-51, p. 4, 5. Ms. Hines acknowledges this fact in her reference to OAG 86-51 when she states that "the denial is improper to the extent that it states or implies that the requesting party will not be afforded the opportunity of examining otherwise nonexempt material to secure the particular records and documents with which he is concerned." The Kentucky Court of Appeals has determined that disclosure of information contained in the Treasury's unclaimed property database, and in particular information regarding the value of each individual unit of unclaimed property, would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a), and therefore Ms. Hines cannot be afforded unrestricted access to the database for the purpose of extracting desired information. Hines v. Department of Treasury at 875.
In a recent open records decision, the Attorney General recognized that a public agency may, at its election, "agree to extract electronically stored information to conform to the parameters of an open records request" although it is not required to do so. Thus, at page 4 of 01-ORD-158 we observed:
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.
Ms. Hines insists that the Treasury can produce the report she seeks. The Treasury responds that existing search programs do not enable it to do so. The fact that the Treasury can, at additional programming costs, extract the information Ms. Hines seeks does not mean that it must. As noted in 01-ORD-158, public agencies are not required to extract electronically stored information to conform to the parameters of an open records request, but may do so at their discretion. The Treasury has exercised its discretion in the negative. We find no error in this position.
Because we affirm the Treasury's denial of Ms. Hines' request for the reasons set forth above, we do not address the alternative privacy argument that the Treasury raises except to note that the Court of Appeals has finally spoken on the public's right of access to the unclaimed property database. At page 875 of Hines v. Department of Treasury, above, the Court declared:
Although the public has a right to be informed regarding appellee's execution of its statutory functions, that right is satisfied by appellee's publication of the names of owners of unclaimed property, as well as information regarding the total value of the property which it holds and disburses each year. The release of information regarding the value of each individual unit of unclaimed property, by contrast, could pertain to those owners' possible incomes, a matter as to which "few things in our society are deemed of a more intimate nature." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 829 (1994).
We see no reason to belabor this issue. "[R]elease of additional information concerning the value of each private citizen's items of property," the Court concluded, "would reveal 'little or nothing' about [the Treasury's] own conduct in executing its statutory function under the Open Records Act. " Hines at 876 citing Zink at 829.
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 By way of example, Ms. Hines noted that for the year 1996, one of the ten largest unclaimed accounts would be:
$ 76,512.84 Savings Account
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