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 Kentucky State Police violated the Open Records Act in denying Capitol Publishing President James Donato's April 19, 2007, request for an electronic data extract from the Collision Report Analysis for Safer Highways (CRASH) database for the period from March 1, 2007, to April 18, 2007. For the reasons that follow, we find that KSP's denial of Mr. Donato's request constituted a violation of the Act.
By letter dated April 25, 2007, KSP Records Custodian Mary Ann Scott denied Mr. Donato's request. Ms. Scott asserted that his was a request for information "which falls outside the scope of the Open Records Act, and that the database contains confidential information exempt from public disclosure under KRS 189.635 and KRS 61.878(1)(l)." In her denial, Ms. Scott also noted that KSP had recently denied Mr. Donato's request to enter into a contract for the purchase of extracts from the CRASH database, and that litigation is currently pending in which KSP has argued that Mr. Donato's company, Capitol Publishing, "is not a newsgathering organization pursuant to KRS 189.635 . . . ."
Shortly thereafter, Mr. Donato initiated this appeal asserting that the requested information resides in an existing public record, the database currently maintained by KSP, and that KSP provides the same data extract n1 to two other private entities, Carfax, Inc. and Experian, thereby undermining its argument that the database, or extracts thereof, cannot be disclosed because it contains confidential information.
1
In supplemental correspondence directed to this office following commencement of this appeal, KSP disputed Mr. Donato's assertion that his request does not necessitate the creation of a record, noting that data extracts are provided to Carfax and Experian on a quarterly basis "pursuant to agreements in which both entities agreed that use of the CRASH data shall be lawful and shall conform to KRS 189.635." Relying on KRS 189.635(1), KSP maintained that "[n]either the Open Records Act nor KRS 189.635 require KSP to compile data extracts for Capitol Publishing" insofar as "there is no indication that the provision of data to Mr. Donato will promote public safety" and "publication of this data in his so-called weekly newspaper will not apprise a potential purchaser of problems with the vehicle." Finally, KSP expressed concern that the requested data "will be combined with public records from other sources, such as county court clerks, to determine the names and addresses of the individuals in collisions in the Commonwealth," resulting in "the invasion of privacy . . . KRS 189.635 was designed to prevent."
Pursuant to KRS 61.880(2)(c), and to facilitate our review of the issues on appeal, this office subsequently requested that KSP provide additional documentation for substantiation by responding to a series of questions. For purposes of our analysis, the following salient points may be gleaned from KSP's responses:
. It is KSP's position that Mr. Donato's, Experian's, and Carfax's intended use of the requested data is a commercial one within the meaning of KRS 61.870(4) and KRS 61.874(4). 2
. It is KSP's position that it may treat commercial requesters seeking the same data differently by honoring some requests and denying others based on its interpretation of KRS 61.874(a). KSP asserts that KRS 61.874(4)(b) "uses the term 'may' rather than 'shall,' indicating discretion on the part of a state agency from whom records are sought for a commercial purpose. "
Amplifying on the latter point, KSP explains that:
KRS 189.635(1) provides that the Justice & Public Safety Cabinet, Department of Kentucky State Police, shall be responsible for maintaining a reporting system for all vehicle accidents which occur within the Commonwealth. Such accident report shall be utilized for such purposes as will improve the traffic safety program in the Commonwealth involving the collection, processing, storing and dissemination of such data and the establishment of procedures by administrative regulations to insure that uniform definitions, classifications, and other federal requirements are in compliance. (Emphasis added). Under this provision, the KSP established the CRASH database. This authority and responsibility includes the dissemination of data for the improvement of traffic safety and provides discretion to the KSP as to how that should be accomplished.
Respectfully, we disagree with KSP's assertion that this discretion supersedes the requirements of the Open Records Act. It is therefore the decision of this office that KSP violated KRS 61.874(4) in denying Mr. Donato's request for the same data extract it currently provides to Carfax and Experian.
Our analysis turns on the express language of KRS 61.874(4). That statute provides:
(4)(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on both of the following:
Shortly after the enactment of this provision, the Attorney General analyzed its intended scope and effect:
The Kentucky Open Records Act was substantially amended in the 1994 legislative session . . . . In the most far-reaching amendment to the Act, the General Assembly determined that a public agency must permit inspection and provide copies of nonexempt public records requested for a commercial purpose. That term is defined at KRS 61.870(4)(a) as "the direct or indirect use of any part of a public record or records in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee." It does not include publication or related use of a public record by a newspaper, periodical, radio, or television station, or use of a public record in the preparation for prosecution or defense of litigation or claims settlement by the parties or their attorneys, KRS 61.870(4)(b).
In construing KRS 61.960 et seq., the Public Access to Governmental Databases Act, this office has previously ruled that a public agency could properly deny a request for records stored in a database if those records were requested for a commercial purpose. See, e.g., OAG 91-116. The Public Access to Governmental Databases Act was incorporated into the Open Records Act by the General Assembly in the 1994 legislative session, and the "commercial purpose" exception eliminated. A request for nonexempt public records which are maintained in a hard copy format, or electronically stored, must therefore be honored regardless of whether the requester's purpose is a commercial or noncommercial one. To the extent that our earlier decisions are inconsistent with these amendments, they can no longer be relied upon.
. . . While it is certainly true that the "public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions [and that i]n general, inspection of records may reveal whether the public servants are indeed serving the public . . .," it is the opinion of this office that in amending the Act the legislature intentionally enlarged the scope of the law by recognizing commercial use as a permissible use. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. In light of the amendment of the law, we reject the notion that commercial use of public records is inconsistent with the spirit of the Act.
95-ORD-12, p. 3-4. Continuing, the Attorney General observed:
What distinguishes a request made for a commercial purpose is the requirement, which the agency may enforce at its election, that the requester submit a certified statement of purpose and/or enter into a contract permitting use of the records for the stated commercial purpose. Additionally, the agency may impose a reasonable fee for reproduction of the record based on the criteria set forth at KRS 61.874(4)(c)1. and 2., rather than the criteria set forth at KRS 61.874(3) and applicable to the reproduction of records requested for noncommercial purpose. The General Assembly has thus expressly authorized public agencies which furnish copies of public records requested for a commercial purpose to recover both their actual cost, including staff time required to produce the copy, and the cost of the "creation, purchase, or other acquisition of the public record. " KRS 61.874(4)(c)2.
Id. at 4-5. In so holding, we emphasized:
What the public agency can no longer do is flatly deny a request for electronically stored records on the grounds that the intended use of the records is a commercial one or otherwise treat electronically stored records any differently than it treats records in a hard copy format. If the nonexempt records exist in both standard electronic and standard hard copy format, and the requester complies with the requirements of KRS 61.874(4), the agency must permit inspection and copying of the records in the format designated by the requester.
Id. at 5.
We reject KSP's argument that the use of "the term 'may' rather than 'shall' [in KRS 61.874(4)(b)] indicat[es] discretion on the part of a state agency from whom records are sought for a commercial purpose. " As it appears in that provision, the term "may" applies to the agency's ability to establish a reasonable fee and not to its duty to honor a commercial request for nonexempt public records. Compare, KRS 61.874(6) (stating that "Online access to public records in electronic form . . . may be provided and made available at the discretion of the public agency ") (emphasis added). As noted in 95-ORD-12, in disposing of an open records request whose underlying purpose is a commercial one, a public agency is vested with discretion in establishing a reasonable fee for copies, based on the factors set forth at KRS 61.874(c)1. and/or 2., in requiring a certified statement from the requester stating the intended commercial use, and in requiring the requester to enter into a contract. The agency does not have discretion to refuse requests submitted by some persons or entities who intend to use the records for a commercial purpose, and honor others, where the same nonexempt records are requested.
Although KRS 189.635 does not specifically address the CRASH database, the requested CRASH data extracts may be exempt per KRS 189.635(5). Notwithstanding its arguments to the contrary, KSP has apparently elected not to treat them as such, having entered into contracts with two private entities for the sale of the data per KRS 61.874(4)(b). KRS 189.635(5) provides:
All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (7) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
(Emphasis added.) The only other exception to this sweeping confidentiality provision is found at KRS 189.635(6) , authorizing disclosure to:
a newsgathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purposes other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.
(Emphasis added.) Neither Carfax nor Experian fall within these excepted classes of authorized recipients, and we do not believe that KRS 189.635(1) can properly be construed to authorize discretionary release to these private entities. Assuming, arguendo, that the CRASH database is protected from disclosure by KRS 189.635(5), KSP violates that provision when it releases data extracts to Experian and Carfax, and KRS 61.874(4)(a), when it releases data extracts to anyone other than those authorized recipient classes identified in KRS 189.635(5) and (6). If, on the other hand, the CRASH database is not protected from disclosure by KRS 189.635(5), then KSP violates KRS 61.874(4) when it discriminates among commercial requesters in the disclosure of data extracts. In either case, we find KSP's position legally untenable.
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.
James Donato, President
Mary Ann ScottOfficial Records CustodianKentucky State Police919 Versailles RoadFrankfort, KY 40601
Emily DennisStaff AttorneyJustice & Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Specifically, Mr. Donato requested a data extract consisting of the following data elements:
1. Collision Date
2. Vehicle Year
3. Vehicle Model
4. Vehicle NCIC Type Code
5. Vehicle Registration Number
6. Unit Number
7. Extent of Damage
8. Fire Indicator
9. Non Fixed Event Collision 1
10. Fixed Object Event Collision 1
11. NC Event Collision 1
12. Vehicle Factor Code 1
13. Vehicle Factor Code 3
14. Manner of Collision Code
15. VIN Number
16. Vehicle Make
17. Vehicle Color
18. Vehicle Registration State
19. Vehicle Registration Year
20. First Area of Contact
21. Unit Type Code
22. Overturned Indicator
23. Non Fixed Event Collision 2
24. Fixed Object Event Collision 2
25. NC Event Collision 2
26. Vehicle Factor Code 2
27. Vehicle Factor Code 4
28. Air Bag Code
2 As noted, Mr. Donato has expressed an interest in entering into a contract with KSP for the purchase of the same CRASH data extract purchased by Experian and Carfax under their contracts with KSP. Although he asserts his company's status as a newsgathering organization for purposes of obtaining accident reports under KRS 189.635(6) in the case now before the Kentucky Court of Appeals, he does not appear to dispute his company's status as a commercial requester for purposes of obtaining the CRASH data extract. Per KRS 61.874(4)(c), KSP may, of course, recover any additional media, mechanical processing, and staff costs required to honor his request on a more frequent basis than the quarterly basis on which it furnishes the data extract to Experian and Carfax. KSP may also proceed against Mr. Donato under KRS 61.8745 to obtain damages if he "uses or knowingly allows the use of the public record for a different commercial purpose" than that which he certifies per KRS 61.874(4)(b).