Request By:
Amanda York
Bureau Chief
The Kentucky Post
Capitol Building, Rm. 242
Frankfort, KY 40601Mark Honeycutt
General Counsel
Personnel Cabinet
200 Fair Oaks Lane, Fifth Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Personnel Cabinet subverted the intent of the Open Records Act, short of denial of inspection, 1 by requiring Kentucky Post Bureau Chief Amanda York to pay programming costs of $ 210 for production of "payroll for the Office of Security Coordination under Gov. Paul Patton . . . [including] the names, job titles, and salaries for individuals employed under this office for the following years 2001, 2002, and 2003." Because the public's right of access to nonexempt records is premised, in part, on the right to obtain those records at a nonprohibitive charge, and because public agencies have a corollary duty to manage and maintain their records so as to facilitate efficient and cost-effective retrieval, we find that the Cabinet's imposition of a $ 210 programming charge for payroll records constitutes a subversion of the intent of the Act, the Cabinet having acknowledged that each time it queries the system to obtain payroll records, "the same process must be undertaken and the same program must be written."
In her letter of appeal, Ms. York advises that on May 5, 2005, "[a] representative from the Personnel Cabinet phoned to say a special program costing around $ 250 would have to be created for retrieving this information." 2 Because she has learned that the Office of Security Coordination employed only three people, and because she believes that "[d]isclosure of the information in these records is in the public interest and would primarily benefit the general public," Ms. York asserts that "it is simply not reasonable to charge money to create a program for information more than four years old."
In correspondence directed to this office following commencement of Ms. York's appeal, Personnel Cabinet Executive Director Mark D. Honeycutt responded to her claim that the proposed charge is unreasonable, explaining that the "Cabinet estimated that the request would require three and a half hours of programming at $ 60/hour for a total of $ 210." He observed:
Due to the current payroll system utilized by the Personnel Cabinet, the records requested do not exist and must be created. A public agency is not obligated to create records to satisfy a particular open records request. 02-ORD-112; 97-ORD-56; 96-ORD-139, 95-ORD-48. The Personnel Cabinet has the right to deny Ms. York's appeal because the requested records did not exist, however, the Personnel Cabinet attempted to satisfy Ms. York's request by offering to hire a [Commonwealth Office of Technology] programmer to query the system to obtain the names, job titles, and salaries of the employees of the Office of Security Coordination. The Cabinet is merely requesting that Ms. York pay for the programming costs in order to obtain the information.
Responding to her claim that the costs associated with retrieving the information is disproportionate because the information relates to only three former employees, Mr. Honeycutt explained:
[W]hen the Cabinet queries the system to obtain information, the same process must be undertaken and the same program must be written, regardless of the end result. When a program is written, it involves selecting fields for print and performing the field selection criteria. Until the program is run, the number of records that will be selected for print is unknown. Whether there are 3 or 30,000 records, the development time to create the program is the same.
On this basis, Mr. Honeycutt concluded, the Cabinet calculated the cost associated with the request.
The Attorney General has addressed the issue of public access to governmental databases in a number of recent decisions, recognizing as a threshold issue, that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 03-ORD-214, p.6, citing 00-ORD-206, p. 7. In 03-ORD-214, for example, we were asked to determine if the Kentucky Tobacco Settlement Trust Corporation properly denied a request for the Phase II payments database for the year 2002, identifying the quantities used in calculating payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of the data contained therein. We concluded that the Corporation erred in denying the request, but satisfied its obligation to disclose the records by producing them in standard format, as defined at KRS 61.874(2)(b). The Corporation was not required, in our view, to tailor the format to conform to the parameters of the request. Relying on 03-ORD-004, in which we held that the Cabinet for Health Services was not obligated to compile information in a format which did not exist or direct the creation of a program to extract that information from the existing database, but that it must, in the alternative, provide the requester with a copy of its entire database after those fields of information for which statutory protection existed were properly masked, we held that the Corporation's obligations were satisfied by release of the entire database in the format in which it is regularly maintained. 03-ORD-214, p. 9, citing 03-ORD-004, p. 8, 9 and 02-ORD-89, p. 12, note 5; see also 04-ORD-117.
KRS 61.874(3) speaks directly to this issue, providing in relevant part:
If a public agency is asked to produce a record in a non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.
(Emphasis added.) In 01-ORD-158, the Attorney General examined this provision, opining:
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 3 to extract the information. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester.
01-ORD-158, p. 4. This position mirrors the holdings in a series of decisions dating from 1995 and 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.
This line of decisions is, however, clearly distinguishable from the instant appeal in one significant respect. These decisions were premised on the assumption that the subject agencies had no pre-existing query, filter, or sort capable of extracting the specific information the requesters sought. In such cases:
extra programming may be necessary to create the records to fulfill the Open Records request. In these cases where the data requested is not contained in a pre-existing query, filter or sort, the request would be considered non-standard, if the agency chooses to fill the request, the agency can charge a fee to recover staff time and programming costs the first time the request is made. Subsequent requests for the same data would be considered a standard request since the query, filter or sort then exists and no additional programming would be necessary to satisfy the request.
"Guidelines for Responding to Open Records Requests for Public Records in a Database, " p. 4. 4 In the appeal before us, Mr. Honeycutt acknowledges, and it is widely recognized, 5 that the Personnel Cabinet regularly receives requests for payroll records maintained in its payroll database system. In its written response to Ms. York's appeal, the Cabinet concedes that each time it queries that system to obtain payroll information, "the same process must be undertaken and the same program must be written . . . ." This is a critical distinction.
Because the Cabinet acknowledges that a query, or queries, exist that are capable of extracting payroll records, Ms. York's request must be treated as a standard request under KRS 61.874(3) notwithstanding the fact that she wishes to obtain specific records from the system. With regard to such a request, the
"Database Guidelines," referenced above, provide: Generally, Open Records requests are made to obtain specific records from a database. In many instances, standard report queries can easily extract the records needed to satisfy the requestor. Where queries already exist for purposes of the Open Records Act, the agency should have little problem in performing the necessary tasks to fulfill the request. This would be considered a standard request even if data has to be redacted. 6 In responding to a standard request the agency can charge a reasonable fee that does not exceed the actual cost of reproduction and cannot include staff time or programming costs.
"Database Guidelines," p. 4. It is apparently the Cabinet's position that any variation in a payroll records request necessitates the creation of a new record, or query, and the services of a COT programmer at a cost to the public of $ 60 per hour. In reality, it is simply a matter of adding fields of information to or subtracting fields of information from the existing query or queries: for example, a request for the names, titles, and monthly salaries of a specified agency's employees as opposed to a request for the names, monthly salaries, and dates of hire for an agency's employees (delete titles, add dates of hire) . Each request must be treated as a standard request for which the Cabinet may recover only its actual reproduction costs, excluding the cost of staff or programming time required. The Personnel Cabinet's position is untenable.
Our decision finds support in the language of the Act at KRS 61.8715:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.
The General Assembly has also recognized at KRS 11.501(2), one of the provisions which has been deemed "essentially related" to the Open Records Act, that "[t]he appropriate use of information technology by the Commonwealth can improve operational productivity, reduce the cost of government, enhance service to customers, and make government more accessible to the public ." (Emphasis added.) These provisions, operating in tandem, direct public agencies to manage and maintain their records in such a way that those records are easily searchable, thus facilitating efficient and cost-effective retrieval. In light of its duty to make government more accessible by providing access to public records at a nonprohibitive charge, and its admission that a query currently exists that is capable of extracting payroll information from its database system, we find that the Personnel Cabinet subverted the intent of the Open Records Act, short of denial of inspection, by attempting to impose a $ 210 programming charge on Ms. York. To hold otherwise flies in the face of the statement of legislative policy found at KRS 61.871, declaring that "free and open examination of public records is in the public interest," by inflating the costs associated with production of public records and frustrating public access.
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.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 A telephoned response to an open records request does not satisfy KRS 61.880(1), requiring the public agency to issue a written response. To the extent that the Cabinet failed to "notify [Ms. York] in writing" that the requested information could be made available at a cost of some $ 250, its disposition of her request was procedurally deficient.
3 Now, the Commonwealth Office of Technology.
4 These guidelines are developed and endorsed by the Electronic Records Work Group of the Department for Libraries and Archives and can be located at http://kdla.ky.gov/recmanagement/databaseaspublicrecord.pdf
5 On February 16, 2005, for example, The Kentucky Gazette published the names, job titles, cabinets, salaries, and tenure of 3500 merit and nonmerit Executive Branch employees. The Gazette published the same information relative to all 33,000 plus Executive Branch employees at www.kysalaries.com.
6 We refer the parties to 95-ORD-82 in which this office held that a public agency cannot recover programming costs associated with redaction of exempt information that is commingled with nonexempt information in a public record. Because KRS 61.878(4) mandates redaction of exempt information, we concluded that redaction of information is not equivalent to creation of a new record, and public agencies must bear the attendant costs.