Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Public Schools (JCPS) violated the Open Records Act in the disposition of Rita J. Ward's series of open records requests for information regarding the number of students who were enrolled at some time in the Buechel and Breckinridge Metropolitan High Schools during the 2003-2004 school year. For the reasons that follow, we conclude that the JCPS was neither required to compile information to meet the parameters of Ms. Ward's request nor to reformat its database to retrieve the information. In the alternative, the JCPS was required to provide Ms. Ward with a copy of its existing database after information for which statutory protection exists was properly redacted.
The initial requests and agency responses at issue in this appeal can be summarized by the August 6, 2004 response of Lauren E. Roberts, Public Information Officer, JCPS. In her response to Ms. Ward, she advised:
I am writing in response to your August 2, 2004 letter concerning Breckinridge and Buechel Metropolitan High Schools. Please be advised as follows:
. In item # 1 of your July 14, 2004, Open Records Request, you requested the "total number of students who went to Breckinridge Metropolitan High School at some time during the 2003-04 school year (except those in the GED program)." Our response dated July 20, 2004, stated that 110 students attended Breckinridge during the 2003-04 school year. This was the enrollment as of May 24, 2004.
. In item # 5 of your July 14, 2004, Open Records Request, you requested the "total number of students who went to Buechel Metropolitan High School at some time during the 2003-04 school year (except those in the GED program)." Our response dated July 20, 2004, stated that 253 students attended Breckinridge during the 2003-04 school year. This was the enrollment as of May 24, 2004.
. As stated in your letter dated July 21, 2004, "Questions # 1 and # 5 are asking for the total number of students who were enrolled in Buechel and Breckinridge during some part of the 2003-04 school year. " Due to constant fluctuation, the District does not maintain total enrollment figures for Breckinridge and Buechel; however, we do maintain monthly enrollment figures for each school.
. At the time of your February 18, 2003, Open Records Request for "the total number of students who attended Buechel and/or Breckinridge Metropolitan High Schools during the 2001-02 school year, " we were able to provide you with the information because it had been calculated for another project. However, as we previously stated, the District does not regularly compile total enrollment figures for Breckinridge and Buechel Metropolitan High Schools.
. As we stated in our previous response dated July 20, 2004, "In response to item # 9 of your request, please be advised that the Kentucky Core Content Test scores for Breckinridge and Buechel Metropolitan High Schools will not be available until October 2004.
In addition to the above, in a July 28, 2004, response, Ms. Roberts advised Ms. Ward:
Please be advised that the Jefferson County Public School District does not compile the information in the format you requested in Items # 1 and # 5 of your Open Records Request dated July 14. 2004.
In an August 16, 2004 response, Ms. Roberts provided Ms. Ward with copies of the monthly enrollment figures for the two schools during the 2003-04 school, advising:
As we previously stated in our August 6, 2004, response to your Open Records Request dated August 2, 2004, due to constant fluctuation, the District only maintains monthly enrollment figures for Breckinridge and Buechel Metropolitan High Schools.
As a result of the foregoing responses and actions by JCPS, Ms. Ward initiated the instant appeal. In her letter of appeal, dated August 28, 2004, she explained, in relevant part:
. . . Both schools are alternative schools within the JCPS system and the populations fluctuate from month to month since students leave either by dropping out or returning to their regular high school. Therefore, though the number of students may remain the same from month to month, who those students are may not. Knowing how many students attended the schools each month may not.
. . . The information provided as a result of my request on July 14, 2004 provides me with a number in response to the queries about total populations [see JCPS letter of July 20, 2004], but it is evident that these numbers do not answer my question: the number of students that withdrew from each school is higher than the number who attended.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Roberts provided this office with a response to the issues raised in the appeal. In her response, she states in part:
At issue is Ms. Ward's desire to know "cumulative totals" of students attending Breckinridge and Buechel Metropolitan High Schools. As her July 21, 2004 clarification letter specifies, she wants "the total number of students who were enrolled in Buechel and Breckinridge during some part of the 2003-2004 school year. " We explained to her in our July 28, 2004 letter that the District does not maintain student enrollment information in the format she requests. The District does maintain monthly enrollment figures, which it has provided Ms. Ward, but it has no continuing need to know how many different individual students attend those particular schools during a certain period.
Ms. Ward correctly notes that we were previously able to provide her with a 2001-2002 cumulative total of students who attended the two schools. As we explained to her, though, that data had been compiled for a special one-time reporting purpose. The District does not routinely compile that information, it has not been compiled since 2001-2002, and we have no existing program that would allow us to compile it again.
Indeed, providing a 2003-2004 cumulative total as Ms. Ward requests would require that a special computer program be written. Our Research Department has advised that it would take at least a full day to enter each student's individual student number and additional time to adjust the program, then additional time for running the program. As we understand previous Opinions from this Office, a public agency is not required to create a computer program in order to respond to a request for specific information. The public is entitled to public records only if, and in the format that, they are maintained by a public agency. We explained all this to Ms. Ward, i.e., we cannot give her what we do not have.
We are asked to determine whether the JCPS disposition of Ms. Ward's open records requests violated the Open Records Act. For the reasons that follow, we conclude that the JCPS was neither required to compile information to meet the parameters of Ms. Ward's request nor to reformat its database to retrieve the information. In the alternative, the JCPS was required to provide Ms. Ward with a copy of its existing database after information for which statutory protection exists were properly redacted.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open record request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. At page 2 of 93-ORD-50, we observed:
The Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
Simply stated, "[W]hat the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." OAG 91-12, p. 5. Ms. Ward was requesting statistical information, which is not exempt from disclosure under the Open Records Act, provided it exists in compiled form. OAG 82-279. See 61.878(2). However, in the instant case, the JCPS did not have the requested statistical information in a compiled form., and thus, was not required to compile it.
As noted above the JCPS declined to grant Ms. Ward's request for information relative to the cumulative total of students that attended the schools [at least at some time] during 2003-2004 school year, on the basis that the agency did not maintain its student enrollment information in the format she requested and that to provide the cumulative totals would require that a special computer program be written.
KRS 61.874(3) provides, in relevant part:
If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
The Attorney General has recognized 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. 96-ORD-75; 96-ORD-133. In 02-ORD-48, at p. 6, we held that the fact an agency can, at additional programming costs, extract the information a requester is seeking does not mean that it must. (Emphasis in original). Accordingly, we conclude that the JCPS's decision not to reformat its database to produce the information Ms. Ward seeks was properly within its discretion and did not constitute a violation of the Open Records Act.
In 95-ORD-82, p. 3, 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."
As a general rule, an alternative would have been to make an agency's entire database available to the requester in the format in which it is regularly maintained and let the requester search through the records to obtain the information she seeks. 02-ORD-89. However, the database in the instant appeal contains education records, many of which are required to be kept confidential by federal and state laws.
The Federal Family Education Rights and Privacy Act (FERPA), 20 USC § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act (KFERPA), KRS 160.705 et seq. , regulate access to "education records" containing personally identifiable information pertaining to students within the public school system. That term is defined at 20 USCA § 1232g(4)(A) as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution." With the exception of certain narrow categories of records identified at 20 USCA § 1232(4)(B)(i)-(iv), and not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies the two-part test described above. The corresponding provision in Kentucky's act defines the term "education record" as:
[D]ata and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios; achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer-generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.
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 redacted. In 03-ORD-004, because the Department's database contained information that was made confidential by federal law, the requester could not inspect the entire database unimpeded. The Department was required to redact individual Medicaid recipient information and other information made confidential by federal enactment (42 CFR 431.300 et seq. in tandem with KRS 61.878(1)(k)) and make the redacted database available to the requester. We further held, citing KRS 61.878(4) that the Department would have to absorb the costs associated with redaction as the redaction of the confidential information was not equivalent to nonobligatory creation of a new record. 03-ORD-004; 95-ORD-82.
We find the analysis and reasoning of 03-ORD-004 is applicable to the instant appeal and conclude that the JCPS must make its database available for Ms. Ward's inspection after redacting information made confidential by FERPA and KFERPA, in tandem with KRS 61.878(1)(k) and KRS 61.878(1)(l), or other applicable provisions of KRS 61.878(1). The JCPS has offered no clear and convincing evidence that disclosure of a redacted copy of its existing database would impose an unreasonable burden within the contemplation of KRS 61.872(6). This is not to say that such a case could not be made, but that no such case was made by the JCPS in this appeal.
As an alternative, Ms. Ward could ask the JCPS to exercise its discretion to tailor the format of its database to provide the information she seeks, at a cost to her consistent with 61.874(4). If the parties can agree on whichever is the less restrictive alternative, the parties, in a spirit of cooperation, should so do.
A party aggrieved by this decision may appeal it by initiating an 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.
Rita J. WardLegal Aid Society425 W. Muhammad Ali Blvd.Louisville, KY 40202
Lauren E. RobertsPublic Information OfficerJefferson County Public SchoolsVanHoose Education CenterP.O. Box 34020Louisville, KY 34020
Dan McCubbinP.O. Box 34020Louisville, KY 34020