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 Kentucky Tobacco Settlement Trust Corporation violated the Open Records Act in denying Randolph C. Tompson's August 26, 2003 request for records "relating to Phase II payments made by [Kentucky]." Mr. Tompson is Director of Legislative Support for R.J. Reynolds Tobacco Company. For the reasons that follow, we find that the Corporation is a public agency within the meaning of KRS 61.870(1)(f) and that its reliance on the last sentence of KRS 61.870(2) as the basis for denying Mr. Tompson's request was therefore misplaced. If the Corporation does not prepare, own, use, possess, or retain records that are responsive to Mr. Tompson's request, the Corporation is not required to create responsive records and therefore discharged its duties under KRS 61.872(4) of the Open Records Act by notifying Mr. Henson that the Corporation is not the official custodian of the requested records and furnishing him with the name and location of the official custodian of those records. If, on the other hand, the Corporation prepared, owns, uses, possesses, or retains those records for purposes related to "the implementation of the national tobacco grower settlement trust agreement, "KRS 248.480(2), and/or its specifically enumerated duties set forth at KRS 248.480(7)(a) through (i), or any other purpose, the records must be produced for inspection unless the Corporation can identify a specific exception authorizing the withholding of the records. KRS 61.880(1).
In his August 26 records application, Mr. Tompson requested:
[A] list of the individuals, corporations, or other entities that received [Phase II] payments during the calendar year 2002 . . . .
For each individual, corporation, or other entity, please provide the specific quantities which were used in calculating the payment. For example, if your state used "pounds of tobacco quota owned" and "pounds of tobacco grown" as factors in the payment calculation, please provide the number of pounds of tobacco quota owned, and the number of pounds of tobacco grown, for each entity.
If an entity was paid because it was exclusively a grower -- that is, it did not own any quota -- please put a zero in the quota owner field. If an entity was paid because it was exclusively a quota owner -- that is, it did not grow any tobacco -- please put a zero in the grower field. If the number of pounds for which quota was owned differed from the number of pounds of tobacco grown, please list the specific number of pounds for which quota was owned, and for tobacco grown as separate fields.
In closing, he asked that the database be produced "in delimited ASCII format, or in any commonly accepted electronic format, " and agreed to pay the costs of reproduction and transmission.
In a response dated September 4, 2003, 1 Laurie K. Dudgeon, Deputy General Counsel for the Governor's Office of Agricultural Policy, denied Mr. Tompson advising:
Your request seeks names and poundage information for Phase II grower and quota holders. This request is denied on the basis that this information is not deemed a "public record" pursuant to KRS 61.870(2), which states: "'Public record' shall not include any records owned or maintained by or for a [public agency] that are not related to functions, activities, programs, or operations funded by state or local authority. " Contrary to statements contained in your request, the Commonwealth of Kentucky does not fund the Phase II payments, and therefore this information is not a public record, open for inspection, pursuant to KRS 61.872(1).
It appears that the information you seek is in the custody of either the National Trustee or the United States Department of Agriculture ("USDA"). The Commonwealth does not maintain these records. The Trustee is the custodian of all records relating to individuals or entities receiving settlement payments and the USDA is the custodian of all "quota-related" information. The role of the Commonwealth of Kentucky is to certify the eligibility of recipients and determine compensation levels for payment from the National Trust. In the event the information you requested was deemed a public record, your request seeks to require this office to compile information and create a document that does not already exist. Therefore your request is denied pursuant to KRS 61.870 et seq.
Shortly after receiving the Corporation's denial of Mr. Tompson's request, R.J. Reynolds Tobacco Holdings Inc. initiated this appeal, through Senior Counsel Jackson W. Henson, challenging the Corporation's interpretation of its obligations under the Open Records Act.
In supplemental correspondence directed to this office following commencement of Mr. Henson's appeal, Ms. Dudgeon elaborated on the Corporation's position. She observed:
This agency denied R. J. Reynolds' open records request because this information is not a "public record" pursuant to KRS 61.870(2), for reasons set forth more completely in my letter to Mr. Randolph Tompson, dated September 4, 2003. Mr. Henson is obviously aware that the Commonwealth of Kentucky does not fund the Phase II payments, disqualifying those documents from inspection, pursuant to KRS 61.872(1). He does not even argue this point in his appeal.
Therefore, Mr. Henson's only argument is to confuse the issue of whether or not the Kentucky Settlement Trust Corporation is a public agency. He seems to argue that because the Kentucky Settlement Trust Corporation is deemed a "public agency" by virtue of KRS 248.480, that only some of the statutes and provisions of KRS 61.870, et seq. apply. He argues that every document in this agency's possession is a public record regardless of the limitations imposed by KRS 61.870, et seq. However, the basis for his original request is the Kentucky Open Records statutes, so either all provisions apply, or none apply. If it does not apply, then he has no grounds for his original request, or procedure for appeal.
Because we do not agree with the Corporation that the last sentence in KRS 61.870(2) imposes limitations on release of records, other than records maintained by bodies which are deemed public agencies for open records purposes only because they "derive[] at least twenty-five percent (25%) of [their] funds expended [by them] in the Commonwealth of Kentucky from state or local authority funds," 2 we find that records responsive to Mr. Tompson's request are public records, within the meaning of KRS 61.870(2), if they are "prepared, owned, used, in the possession of or retained by" the Corporation. Those records must be disclosed upon request unless the Corporation can establish that they qualify for protection under one or more of the exceptions codified at KRS 61.878(1)(a) through (l).
The Kentucky Tobacco Settlement Trust Corporation exists by virtue of legislation located in Chapter 248 of the Kentucky Revised Statutes. KRS 248.480(2) thus provides:
The Kentucky Tobacco Settlement Trust Corporation is created and established as a de jure municipal corporation and political subdivision of the Commonwealth to perform essential governmental and public functions by assisting in the implementation of the national tobacco grower settlement trust agreement. The corporation shall be attached to the Finance and Administration Cabinet for administrative purposes. The corporation shall be a public agency within the meaning of KRS 61.805, KRS 61.870, and other applicable statutes. [Emphasis added.]
It therefore falls within the parameters of KRS 61.870(1)(f), defining a public agency as:
Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act[.]
By the express terms of KRS 248.480(2), and without restriction, the Corporation is deemed a public agency for open records and open meetings purposes. Simply put, neither KRS 248.480(2) nor KRS 61.870(1)(f) exclude from public inspection records of the Kentucky Tobacco Settlement Trust Corporation "that are not related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). The latter phrase applies only to "records owned or maintained by or for a body referred to in subsection (1)(h) of [KRS 61.870]," namely, "[a]ny body which derives at least twenty-five (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." KRS 61.870(1)(h). The Corporation does not fall within the parameters of KRS 61.870(1)(h).
In an open records decision issued in 2000, the Attorney General soundly rejected the Department of Correction's claim that its criminal records database was not a public record for the same reasons advanced by the Corporation. The Department argued:
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). [The applicant is] 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.
00-ORD-206, p. 2. In rejecting the Department's position, this office held:
[T]he database is unquestionably a "public record" as that term is defined at KRS 61.870(2). "Public record":
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. [T]he 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.
00-ORD-206, p. 7. The logic of 00-ORD-206 extends to the instant appeal.
The Kentucky Settlement Trust Corporation is a public agency and its records are governed by the Open Records Act without exception or limitation unless those records qualify for protection under the statutorily recognized exceptions codified at KRS 61.878(1)(a) through (l). In the interest of absolute clarity, we reiterate that if, as the "de jure municipal corporation and political subdivision of the Commonwealth" charged with the duty to "implement[] the national tobacco grower settlement trust agreement, " the Corporation prepares, owns, uses, possesses, or retains a database 3 containing information that is responsive to Mr. Tompson's original request, it is statutorily obligated to provide him with those records unless it can articulate a basis for denying him access in terms of one or more of the exceptions codified at KRS 61.878(1)(a) through (l). It cannot otherwise escape its obligations under the Open Records Act. If the Corporation does not use, possess or retain responsive records, it has no obligation to create responsive records and discharged its duty under the Open Records Act by so notifying Mr. Tompson and furnishing him with the name and location of the federal agency or agencies which exclusively maintain those responsive records. KRS 61.872(4); 02-ORD-163 (because City of Louisville Department of Inspections, Permits and Licenses did not license escort services and therefore did not maintain record responsive to request for license of named escort service; department discharged its duty under KRS 61.872(4) by notifying requester in writing, and within three business days, and furnishing him with the name and location of the custodial agency).
Assuming that the requested records are maintained by the Kentucky Tobacco Settlement Trust Corporation, we hold that the Corporation satisfies its obligation to disclose those records to Mr. Tompson by producing them in standard format, as defined at KRS 61.874(2)(b), 4 and is not required to tailor the format to meet his request. In 03-ORD-004 the Attorney General held that the Cabinet for Health Services' Department of Medicaid Services was not obligated to compile information to conform to the parameters of a given request, but that it must, alternatively, provide the requester with a copy of its entire database after those fields of information for which statutory protection exists were properly masked. At page 7 of that decision, we opined:
[T]he Department properly declined to honor [the applicant's] request to compile information in a format in which it does not currently exist or to direct the creation of a program to extract that information from its existing database. KRS 61.874(3) speaks directly to this issue, providing in relevant part:
(Emphasis added.) In 01-ORD-158, the Attorney General examined this provision, opining:
01-ORD-158, p. 4. This position mirrors the holdings in a series of decisions dating from 1995 recognizing 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. 95-ORD-82, 96-ORD-133; 98-ORD-151; 99-ORD-68; 02-ORD-148. Because the language of KRS 61.874(3) is precatory in nature, the Department properly exercised its discretion in refusing to reformat its database to conform to the parameters of [the applicant's] request.
Nevertheless, we recognized that "the agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." 03-ORD-004, p. 8, 9, citing 02-ORD-89, p. 12, note 5. In the latter decision, this office reaffirmed the position that, by virtue of KRS 61.874(3), an agency cannot be required to reformat its database to satisfy a request for information in a specially tailored format. See also 96-ORD-251, p. 2 (holding that "[a]lthough the agency may, in its discretion, 'tailor the format to meet the request of an individual or a group,' it is not obligated to do so. KRS 61.874(3). It satisfies its obligation under the Open Records Act by affording [the applicant] access to its existing database" ). 5
Accordingly, we find that the Corporation may, as a matter of discretion, tailor its database to conform to the parameters of Mr. Tompson's request, and if it does so recover staff costs as well as actual cost incurred. If, however, it exercises its discretion not to tailor its database to satisfy Mr. Tompson's request, it must produce a copy of that database in standard format, as defined at KRS 61.874(2)(b), 6 and assess a copying charge equivalent to its actual costs, including medium and mechanical processing costs, but not including staff costs or the costs associated with redaction of statutorily protected fields of information. However, if it maintains no database, and possesses no hard copy records that contain information responsive to Mr. Tompson's request, it is under no further obligation having furnished him with the name and location of the agency with exclusive custody of those records.
The ambiguities in the record on appeal dictate the somewhat equivocal nature of this open records decision and demonstrate the need for additional communication between the parties to the appeal. Consistent with the findings set forth above, we urge the parties to continue their dialogue in an effort to resolve this dispute without resort to the courts.
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.
Distributed to:
Jackson W. HensonR.J. Reynolds Tobacco Holdings, Inc.P.O. Box 2866Winston-Salem, NC 27102-2866
Joel NeaveillKentucky Tobacco Settlement Trust Corp.Governor's Office of Agriculture Policy700 Capital Avenue, Suite 132Frankfort, KY 40601
Laurie K. DudgeonDeputy General CounselGovernor's Office of Agricultural Policy700 Capital Avenue, Suite 132Frankfort, KY 40601
Footnotes
Footnotes
1 Although it is unclear when the Corporation received Mr. Tompson's request, it appears that the Corporation's response was not issued within three business days as required by KRS 61.880(1).
2 KRS 61.870(1)(h) (emphasis added).
3 If the Corporation maintains the information in a hard copy format only, it is not obligated to convert the hard copy format to electronic format. KRS 61.874(2)(a).
4 Standard format is defined at KRS 61.874(2)(b) as:
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
5 Citing KRS 61.878(4), we noted that redaction of information protected under one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l) from an existing database was not equivalent to the nonobligatory creation of a new record, and that pursuant to KRS 61.878(4) the agency must absorb the costs associated with redaction.
6 See footnote 4, above.