Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services-Office of Vital Statistics violated the Kentucky Open Records Act in the disposition of Kevin A. McLean's request for "all data on Kentucky deaths from 1991 through 1999" in "digital format. " Having offered to provide Mr. McLean with a CD containing the only existing information responsive to his request which is accessible under KRS 213.131 (alphabetical list of all persons who died in Kentucky from 1991-1999) upon receipt of a reasonable fee (equal to cost of reproduction) and postage, in accordance with KRS 61.872(3)(b) and KRS 61.874(1) and (3), the CHFS complied with relevant provisions of the Open Records Act. In the alternative, the CHFS notified Mr. McLean that a "death index" for 1911-1999 is available for purchase from the Kentucky Department for Libraries and Archives thereby complying with KRS 61.872(4); nothing more is required.
By letter directed to Gary L. Kupchinsky, State Registrar, CHFS, Department for Public Health, Office of Vital Statistics, Mr. McLean acknowledged receipt of a response to his initial request for "data on deaths of Florida residents from 1991 through 1999." Because a public agency is not required to perform research in order to satisfy a request for public records, the CHFS denied Mr. McLean's initial request; Mr. McLean therefore revised his request as follows:
Please provide all data on all Kentucky deaths from 1991 through 1999. I would like this in digital format. Because I am not limiting my request to Florida residents, you should not need to do any research to comply with this request. Further, I am not asking for any death certificates, so the charge for death certificates should not apply.
In a letter dated November 20, 2006, Mr. Kupchinsky responded to Mr. McLean's request dated October 13, 2006. 1 As explained by Mr. Kupchinsky:
The information you requested is not maintained in the manner described for public inspection. As permitted by KRS 213.131 we can provide you an alphabetical list for inspection of "all persons registered who died in Kentucky" from 1991-1999. The list will show the name of the deceased, and the date and county of death. We can provide this by means of a CD. However the Kentucky Open Records [Act] requires the requestor to pay for the information that is to be provided plus postage. The cost of the CD containing the list will be $ 10.00 plus postage. We mail by means of USPS, FEDEX or UPS. Please notify us if you [want] to purchase the list of all persons registered who died in Kentucky from 1991-1999 at the costs described and, your preferred method of shipment.
Additionally a death index for the period 1911-1999 is available for purchase from the Kentucky Department for Libraries and Archives. You may order by internet at http://kdla.ky.gov/home.htm. You may also order bymail to:
By letter dated November 29, 2006, Mr. McLean initiated this appeal challenging the disposition of this request; Mr. McLean does "not agree that the records are not open records."
Upon receiving notification of Mr. McLean's appeal from this office, Carlton S. Shier, IV, Assistant General Counsel, responded on behalf of the CHFS. According to Mr. Shier, "in his original correspondence with the Cabinet (via e-mail), Mr. McLean conceded that his request for records was for 'private, non-research purposes.' ( See, Attached)." Reiterating Mr. Kupchinsky's response, Mr. Shier emphasizes that an "alphabetical list was offered to Mr. McLean, in digital format, consistent with fee provisions of KRS 61.872(3)(b) and KRS 61.874." 2 In addition, Mr. McLean was "offered the alternative of purchasing a 'death index,' from the Department for Librar[ies] and Archives, a computer disc containing data from 1911 to 1999 and some additional information." However, instead of paying "a nominal reproduction fee - or purchasing a computer disc from Librar[ies] and Archives (for only $ 12.00) - Mr. McLean has characterized the response as a 'refusal' and has filed this appeal." As correctly explained by Mr. Shier:
In his appeal, Mr. McLean simply asserts that "I [do] not agree that the records are not open records." Since 1990, however, vital records and the information contained therein have been protected records in Kentucky. Specifically, in 1990, the Kentucky General Assembly enacted KRS 213.131. In relevant part, that statute provides that, "[t]o protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order or a court of competent jurisdiction." KRS 213.131(1). Therefore, unless some exception exists, the Cabinet is not authorized to produce information contained in vital records.
In this case, no such exception exists for anything more than Mr. McLean was offered. For example, as alluded to in the November 20, 2006 letter, KRS 213.131(3) provides that,
This is the very list that was offered to Mr. McLean, in digital format. To the extent that he is seeking data over and above what is in this list, such a disclosure is not authorized by the statute.
In short, the CHFS is correct in this assertion.
Citing KRS 213.131(4), 3 Mr. Shier reiterates that Mr. McLean "conceded that his request was not for research purposes. Moreover, even if it were, other conditions would apply - i.e., either the individual names must be redacted, the request must be from a government agency, or there must be an agreement with a research organization." Because Mr. McLean has failed to establish this exception applies, "the only record that Mr. McLean was entitled to receive was the alphabetical list that was specifically offered to him." However, the CHFS "advised Mr. McLean of an alternative source of additional information available from another Kentucky agency." Given the circumstances, Mr. Shier believes the CHFS has discharged its duty under the Open Records Act. We agree.
As in 98-ORD-151, our analysis begins with the basic premise that access to vital records, including records like those requested, is governed by Chapter 213 of the Kentucky Revised Statutes and, in particular, KRS 213.131. Id., p. 2. More specifically, the outcome of this appeal hinges upon KRS 213.131(1) and (2), pursuant to which:
(1) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.
(2) The state registrar shall prepare annually an alphabetical list of all persons registered who die in the Commonwealth. This list shall show the name of the deceased and the date and county of death and shall be an open record subject to inspection by the public upon request.
By enacting KRS 213.131, the General Assembly has unambiguously spoken on the issue of public access to vital records, declaring that unrestricted access is prohibited but, in relevant part, access is permissible via the registry of deaths generated in accordance with KRS 213.131(2).
In any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Of particular relevance here, "when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the subsequent and more specific statute will control." Stogner, supra, at 835, citing Commonwealth v. Brasher, Ky. App., 842 S.W.2d 535, 536 (1992).
As evidenced by the foregoing, KRS 213.131(1) expressly restricts public access to vital records, including records of death; this confidentiality provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) which, in turn, authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Accordingly, the CHFS properly declined to grant Mr. McLean unrestricted access to such records.
To reiterate, Mr. McLean requested "all data on all Kentucky deaths from 1991-1999"; the CHFS advised Mr. McLean that such information "is not maintained in the manner described for public inspection. " As the CHFS intimated when denying Mr. McLean's initial request, 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." OAG 79-547, p. 2. On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Elaborating upon this position, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but 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.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. 4
Because the CHFS is precluded from providing Mr. McLean with unrestricted access to "all data" on deaths in Kentucky during the designated time frame by operation of KRS 213.131(1), the CHFS offered to send Mr. McLean the alphabetical list containing the only information to which he is entitled under KRS 213.131(2) in digital format; nothing more is required. To the extent Mr. McLean is requesting additional information, the CHFS properly advised him that such a disclosure is not statutorily authorized since the exception codified at KRS 213.131(4) does not apply here. By requiring advance payment of the prescribed reproduction fee, including postage, prior to forwarding the responsive list in the requested format, the CHFS is merely acting in a manner consistent with KRS 61.872(3)(b) and KRS 61.874(1) and (3). In addition, the CHFS advised Mr. McLean that he could purchase a "death index" from the Department for Libraries and Archives and provided him with a mailing address and website as required by KRS 61.872(4). To summarize, the CHFS has complied in all particulars with relevant provisions of the Open Records Act aside from the noted procedural violation.
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.
Kevin A. McLeanMcLean & Cardillo, P.A.Bayshore Center, Suite 6002909 W. Bay to Bay BoulevardTampa, FL 33629-8195
Gary L. KupchinskyState RegistrarOffice of Vital Statistics 275 E. Main Street, 1E-AFrankfort, KY 40621
Carlton ShierAssistant General CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40601
Footnotes
Footnotes
1 As a public agency, the CHFS is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access generally speaking. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests. In relevant part, KRS 61.880(1) provides that a public agency must issue a written response within three business days upon receipt of a written request. By failing to respond in writing to Mr. McLean's request dated October 13, 2006, until November 20, 2006, the CHFS violated KRS 61.880(1); the response of the CHFS was procedurally deficient in this respect. See 06-ORD-236, pp. 2-3, for additional discussion relative to application of KRS 61.880(1). As evidenced by the record, the CHFS responded in a timely fashion to Mr. McLean's initial request; however, the CHFS subsequently advised Mr. McLean in a letter dated November 2, 2006, that his request as revised was "being reviewed to determine the extent of vital records information that can be disclosed pursuant to Kentucky Revised Statutes" and "review should occur within fourteen working days." Absent a detailed explanation of the cause for delay, such a response is not consistent with KRS 61.872(5) although the CHFS appears to have acted in good faith. See 05-ORD-134, pp. 3-6, for analysis of this issue.
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2 In accordance withKRS 61.872(3):
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In relevant part, KRS 61.874 provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
(3) The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. 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 any actual costs incurred.
Based upon the evidence of record, this office assumes that a "reproduction fee" of $ 10.00 in addition to postage represents the actual cost of reproduction; therefore, only the first sentence of KRS 61.874(3) is being invoked. See 05-ORD-129 relative to application of KRS 61.874(3) as a whole.
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3 KRS 213.131(4) provides:
The Cabinet for Health and Family Services may authorize by regulation the disclosure of information contained in vital records for research and official administrative purposes, if:
(a) All information identifying persons named on the certificate is withheld or removed;
(b) The information is requested by a federal, state, county, or municipal agency of government which needs the data or information in the conduct of official duties; or
The cabinet has prepared, in writing, a statement of the conditions under which the data or records will be used and received an agreement signed by a responsible agency of the research organization agreeing to meet with and conform to the conditions.
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4 Because Mr. McLean's request is properly characterized as a request for information, the CHFS was not statutorily obligated to honor same. However, the analysis generally does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). In keeping with this position, the Attorney General has noted that if a requester wishes to extract information that has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. Presumably since he is a Florida resident, Mr. McLean requested that information responsive to his request be sent in digital format rather than exercising his right of inspection.
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