Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
[EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT. THE LEXIS SERVICE WILL PLACE THE CORRECTED VERSION ON-LINE UPON RECEIPT.]
Open Records Decision
At issue in this appeal is whether the Motor Vehicle Enforcement Division of the Justice and Public Safety Cabinet violated the Kentucky Open Records Act in denying the request submitted by J.B. Hunt Transport, Inc. for the "names, addresses and violation information of all CDL class A drivers that have had out of service violations." Although the Cabinet is not statutorily obligated to create a program designed to extract the requested information from the existing database, in the alternative, the Cabinet must provide J.B. Hunt with a copy of the entire database containing the requested information in standard format. In the event that the Cabinet elects to redact the protected information of a personal nature per KRS 61.878(1)(a), the Cabinet, rather than J.B. Hunt, must bear the cost of redaction pursuant to KRS 61.878(4) and prior decisions of this office.
By letter directed to Nancy Roberts, MVED, on December 14, 2004, Tina Headrick submitted the referenced request on behalf of J. B. Hunt, explaining that the violations "include overweight tickets, log and equipment violations." Responding on behalf of the Cabinet, Daniel F. Egbers, Assistant General Counsel, advised Ms. Headrick that her request could not be granted because it "calls for 'information' rather than public records. " In addition, "the request does not identify the particular records" being sought. As observed by Mr. Egbers, the Open Records Act "does not require a custodian of records to develop 'information' or to create lists from public records. All that is required is that the custodian make available for inspection and copying, specifically identified records that do not fall within one of the exceptions to the Act." Because Ms. Headrick's request did not identify "a time frame, individual or company as its object," Mr. Egbers felt that it was "impossibly overbroad and vague." In closing, Mr. Egbers suggested that Ms. Headrick resubmit her request, identifying the specific records, timeframes, companies, and drivers in which J.B. Hunt is interested.
By letter dated February 25, 2005, Jay McQueen, Employee Relations Manager, narrowed the scope of the request by J. B. Hunt, seeking "access to and copies of the state Department of Transportation's out-o[f]-service records for the past year . . ." Agreeing to "pay reasonable duplication fees for the processing of this request in an amount not to exceed $ 4,000[.00]," Mr. McQueen asked to be notified prior to "incurring any expenses in excess of that amount." In addition, Mr. McQueen asked the Cabinet to "justify all deletions by reference to specific exemptions of the Act," and "release all segregable portions of otherwise exempt material." As the request was "time-sensitive," J. B. Hunt requested that the Cabinet communicate with either himself or Thom Wainright by telephone rather than by mail.
In a facsimile directed to Mr. McQueen on March 7, 2005, Mr. Egbers confirmed their telephone conversation of that morning, further advising him that the Cabinet construed his revised request to be "substantially similar," and therefore denied it "for the same reasons." As correctly observed by Mr. Egbers, the Freedom of Information Act, cited by Mr. McQueen, "is not applicable to state governments," and the "correct law under which records may be requested is the Kentucky Open Records Act. " Citing KRS 61.878(1)(a), Mr. Egbers also noted that home addresses "are exempt from disclosure for privacy reasons."
Arguing that the Cabinet's claim regarding the similarity of the two requests "has no merit," and the Cabinet did not follow the statutory mandates of the Act, Mr. McQueen initiated this appeal by letter dated April 7, 2005. 1 In Mr. McQueen's view, even a "cursory glance" at the two requests submitted by J.B. Hunt reveals that the second request for access to the "2004 [Out-of-Service] lists and nothing else," is an extreme departure from the first insofar as the second request is neither "overbroad or vague," nor does it "require the development of information as the first request would have." 2 Because the "default position" is that public records are open to examination, public agencies are "never allowed to make blanket [denials]" like the Cabinet did here, and application of the balancing test of Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), weighs in favor of disclosure, J. B. Hunt argues the Cabinet has not satisfied its burden of proving that disclosure of the records at issue would constitute a clearly unwarranted invasion of personal privacy.
Upon receiving notification of Mr. McQueen's appeal from this office, Mr. Egbers supplemented his response on behalf of the Cabinet. Although the modified request of J. B. Hunt specified a timeframe for the records, "one year next preceding the date of the request," J. B. Hunt "failed to specify the particular records in which it was interested." Because the Cabinet did not receive any further communication from Mr. McQueen following its response of March 7, 2005, the Cabinet believed that J. B. Hunt was not pursuing the matter. On appeal, the Cabinet explains:
The Kentucky Vehicle Enforcement Department was moved from the Transportation to the Justice and Public Safety Cabinet by Executive Orders 2004-730 and 2004-994 beginning July 9, 2004. The Company's requests were misdirected (through no fault of its own) and resulted from the forwarding of the request by the Transportation Cabinet. This may have caused some delay in responding. KVE has access to two sets of databases that contain data approaching the "out of service" records sought by the company. The first database is owned and controlled by the United States Department of Transportation and is named "Safety Net." KVE provides that Department with data that it enters into this system that contains information relating to citations issued to vehicles that may result in placing them "out of service." However, I am informed that we cannot legally or physically extract and produce this data once it is entered. KVE also has a safety inspection database that contains data relating to some 90,000 inspections conducted in calendar year 2004, for example, but it does not have the capability of extracting citation data without printing it out, separating "out of service" citation results from other types of inspections. For example, the 90,000 inspections in the 2004 database contain[] names, addresses, telephone numbers, and other data that would be subject to redaction under KRS 61.878(1)(a) that would be impossibly burdensome to perform manually. 3
In summary, "the KVE does not have the 'records' sought by [J. B. Hunt]." According to the Cabinet, Mr. McQueen is requesting "information" that would have to be extracted from a combination of databases. Because the Cabinet has "no authority to divulge data in USDOT's Safety Net database, " 4 and has "no practical means of separating the data from the databases" it does have, honoring the request would essentially require the Cabinet "to create a new list" and the Attorney General "has repeatedly ruled that the Open Records Act" does not require that. It is Mr. Egber's understanding that J. B. Hunt "should already have records on that subject" relating to its drivers. If J. B. Hunt "were to specify a particular citation or situation," the Cabinet believes it could be responsive.
Although neither party has cited, nor has our research revealed, any binding authority which is directly on point, this office is not without guidance in resolving the issue presented. Recognizing as a threshold issue that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)," the Attorney General has addressed the issue of public access to governmental databases in a number of recent decisions. In 03-ORD-214, the Attorney General was asked to determine whether the Kentucky Tobacco Settlement Trust Corporation had properly denied a request for the database containing the Phase II payments from 2002, identifying the quantities used in calculating the payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of that data. Although the Corporation erred in denying the request, this office concluded that the Corporation satisfied its statutory obligation to disclose the records by producing them in standard format, as that term is defined at KRS 61.874(2)(b). 5 In our view, the Corporation was not obligated to tailor the format to conform to the parameters of the request at issue. Relying upon 03-ORD-004, 6 this office held that the Corporation discharged its statutory duty by making the entire database available in the format in which it is regularly maintained. 03-ORD-214, p. 9, citing 03-ORD-004, pp. 8-9, and 02-ORD-89, p. 12, note 5; See also 04-ORD-117.
KRS 61.874(3) speaks directly to the issue presented. In relevant part, KRS 61.874(3) provides:
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 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 construing this provision, the Attorney General observed:
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.
01-ORD-158, p. 4. This position mirrors the holdings in a series of decisions dating back to 95-ORD-82, recognizing that 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 and actual costs in the event that it affirmatively exercises this discretion. 96-ORD-133; 98-ORD-151; 99-ORD-68; 02-ORD-148. Because the language of KRS 61.874(3) is discretionary, the Cabinet did not violate the Act in refusing to reformat its database to conform to the parameters of Mr. McQueen's request. However, the analysis does not end there.
In 02-ORD-89, the Attorney General reaffirmed the principle that an agency can decline to reformat its database for the purpose of satisfying a request for information in a specially tailored format by virtue of KRS 61.874(3). At the same time, this office recognized that "[t]he agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." Id., p. 12, note 5. In the same vein, this office upheld a denial by a public agency on this basis as follows:
Although the [agency] may, in its discretion, "tailor the format to meet the request of an individual or group," it is not obligated to do so. KRS 61.874(3). It satisfies its obligation under the Open Records Act by affording [the requester] access to its existing database.
96-ORD-251, p. 2 (original emphasis). See also 96-ORD-133; 96-ORD-75. While the 2004 inspections database maintained by the Cabinet apparently contain more or less information than Mr. McQueen is seeking, it clearly contains information that is responsive to Mr. McQueen's request. That being the case, the Cabinet is bound by the summarized line of authority in our view. 7
On appeal, the Cabinet asserts that it does not have any "practical means of separating the data from the database" it does maintain nor does the Open Records Act require it to generate a new list. At issue in 95-ORD-82, a copy of which is attached hereto and incorporated by reference, was whether the Louisville Division of Police properly assessed a $ 240.00 fee for "programming time" necessitated to redact juvenile "arrest" information from the database containing the requested records in order to produce a copy in compliance with state law. Disagreeing with the view that the mere deletion of exempt information from an existing database is synonymous with production of a record in a nonstandardized or specially tailored format, the Attorney General engaged in the following analysis:
That database apparently contains both adult and juvenile arrest records [in this case, both "out of service" citations and "other types of inspections" ]. Had Mr. Harris requested the same records in a hard copy format, and those records existed in that format, the Division of Police would be obligated, pursuant to KRS 61.878(4), to separate the juvenile arrest records from the adult arrest records, and would not be entitled to charge him for staff time expended in doing so. [Footnote omitted] It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, we believe that the Division of Police must discharge its duty under KRS 61.878(4), and must bear the costs attendant to this duty.
It is, of course, well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. The agency may, of course, elect to do so, and under the Open Records Act, as amended in 1994, recover its staff costs. KRS 61.874(3). We do not concur with the Division of Police in its view that the mere deletion of exempt information from an existing database results in the creation of an entirely new record. Requiring an agency to generate a previously nonexistent record upon request is not, in our view, equivalent to requiring it to redact exempt information from an existing record.
This position finds support in the language of the Act, a recently amended, and in a survey of other jurisdictions which have addressed this issue. The underlying rationale for these amendments is found at KRS 61.8715, which provides:
[This] provision, [suggests] the need for state and local government agencies to manage and maintain their records in such a way that exempt and nonexempt information contained is easily separable, thus facilitating efficient and cost-effective retrieval of public records. Moreover, and as noted, KRS 61.878(4) mandates redaction of excepted material when it is commingled with nonexcepted material. The reasonable fee provision found at KRS 61.874(3) specifically excludes the cost of staff required. Clearly then, the General Assembly intended that public agencies bear the cost of redaction.
Id., pp. 2-3 (emphasis added).
Having surveyed the case law from other jurisdictions, as summarized in 95-ORD-82, the Attorney General found ample support for the proposition that redaction of information is not equivalent to creation of a record. Of particular relevance here, this office observed that "mere deletion of names, addresses, and social security numbers" does not result in the creation of a new record contrary to the assertion by the Cabinet that honoring Mr. McQueen's request "would essentially require" the Cabinet to "create a list." Id., p. 3. 8 Because the instant appeal presents no reason to depart from this governing precedent, the same reasoning applies. See also 98-ORD-33 (holding that the Kentucky State Treasurer could not deny access to the unclaimed property database on the basis that exempt and nonexempt information are commingled, and redaction of the exempt information, followed by reinsertion, is tantamount to creation of a new record).
Having exercised its discretion not to format its database to satisfy Mr. McQueen's request, the Cabinet must provide Mr. McQueen with access to the database in its entirety after redacting the protected identifying information pursuant to KRS 61.878(1)(a) , and must bear the costs associated with redaction.
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 "Since there appears to be a correlation between those who receive Out of Service citations and a commercial driver's propensity to have an accident," J. B. Hunt considers acquiring this list "to be a pro-active safety precaution that will enable" it to check the records of both those who are currently employed there and those who have applied for employment.
2 [ILLEGIBLE FOOTNOTE]
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3 In making this assertion, Mr. Egbers implicitly relies uponKRS 61.872(6), which provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
As consistently recognized by this office, an agency does not sustain a refusal pursuant to KRS 61.872(6) "by the bare allegation that the request is unreasonably burdensome." 04-ORD-113, p. 10; 01-ORD-124. Only when the agency has adduced evidence which would warrant a finding that the burden imposed upon the agency is unreasonable, will the Attorney General uphold its action. Id. In our view, the unsupported assertion by the Cabinet that no practical mechanism exists by which it can separate the information contained in the database does not satisfy this intentionally high standard. Copies of 04-ORD-113 and 01-ORD-124, which are instructive as to the type of fact pattern and degree of specificity required to satisfy this standard, are attached hereto and incorporated by reference.
4 Because the Attorney General has no reason to question the veracity of the Cabinet as to this credible assertion, our analysis focuses exclusively on the obligations of the Cabinet relative to the other databases.
5 "Standardformat" 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.
6 In 03-ORD-004, the request at issue was for Medicaid expenditures for 44 current procedural terminology (CPT) code procedures along with the name and business address of all physicians and healthcare providers to whom any funds were paid under the 44 CPT codes, including the total amount paid to each physician or healthcare provider, for the most recent fiscal year. Although the Cabinet for Health and Family Services was not obligated to provide records in a format which did not exist or design a program to extract those records from its existing database, in the alternative, this office held that the Cabinet had to provide the requester with a copy of the database in its entirety after those fields of information for which statutory protection exists were properly masked. Id. pp. 7-9. In so doing, the Attorney General observed that the record on appeal did not support the position that the Cabinet discharged its duties under KRS 61.872(5), or that it demonstrated by clear and convincing evidence, that disclosure of its existing database, with appropriate redactions to protect identifying information relating to individual Medicaid recipients, would constitute an unreasonable burden within the meaning of KRS 61.872(6). Such is the case here.
7 Further support for this conclusion is found in the "Guidelines for Responding to Open Records Request for Public Records in a Database, " endorsed by the Kentucky Department for Libraries and Archives, which can be accessed at http://kdla.ky.gov/recmanagement/databaseaspublic record.pdf. According to the Guidelines: "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." In those cases where extra programming is necessary, the request would be considered non-standard so the agency can recover a fee for staff time and programming costs. (Emphasis added). See 05-ORD-116, pp. 5-6.
8 To clarify, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 03-ORD-128, p. 5, citing OAG 81-198, p. 4 (emphasis added).