Request By:
Jon L. Fleischaker, Esq.
Mary Ann Scott
Captain Tom Porter
Roger G. Wright
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police properly denied Courier-Journal reporter Mark Shaver's February 28, 2008, request for "a copy of the state's Sex Offender Registry database. " 1 Mr. Shaver expressed a preference for a copy of the database "in Microsoft Access, Excel, Dbase (dbf), comma- or tab-delimited format . . . or ASCII text format, as called for under the records law." Mr. Shaver also requested "copies of all the sex offender photographs currently displayed on the Web site." He did not express any preference as to format for these photographs. For the reasons that follow, we find that KSP violated the Open Records Act in denying Mr. Shaver's request.
In a response dated March 3, 2008, Captain Tom Porter, Commander of KSP's Criminal Identification and Records Branch, denied Mr. Shaver's request, characterizing the request as a standing request which KSP was not required to honor. He also maintained that the request was unreasonably burdensome since the database is "already available to the public via the Sex Offender Registry website. " In support of KSP's position, Captain Porter cited KRS 61.872 and KRS 61.874, relating to requests for existing public records, and KRS 61.872(6), relating to unreasonably burdensome open records requests. Continuing, Captain Porter observed:
Your request is for records in a nonstandard format for which the KSP has no desire to enter into an agreement with the Courier-Journal to recover staff costs and any actual cost incurred to provide you the updated database with photographs on a weekly or other basis. See KRS 61.874(3). Essentially the information the Courier-Journal would publish in its own sex offender registry would be obsolete as of the time of publication, because the KSP database is updated daily. 2
As an alternative to records production, he suggested that The Courier-Journal "place a link to the Kentucky State Police Sex Offender Registry website on The Courier-Journal website . . . ."
Shortly thereafter, The Courier-Journal initiated this appeal, through its attorney Jon L. Fleischaker, disputing KSP's characterization of Mr. Shaver's request as a standing request and as unreasonably burdensome. With reference to KSP's assertion that Mr. Shaver's request was a request for records in a nonstandardized format within the meaning of KRS 61.874(3), The Courier asserted:
While the statute gives the agency discretion as to whether to provide records in a nonstandardized format and whether to recover its costs for doing so, it clearly does not provide an exemption to the disclosure requirements of the Open Records Act. Nothing in KRS 61.874(3) relieves an agency of the obligation to produce records in some format. There is no case law and no opinion or decision of the Attorney General recognizing KRS 61.874(3) as creating an exemption from disclosure requirements. ( See, e.g ., 07-ORD-130 , stating , " . . . it was not within the City's discretion to deny the request per KRS 61.874(3).")
Noting that pursuant to KRS 61.874(2) discretion resides in the requester to determine whether he receives the records in electronic or hard copy format, where the records are maintained in an electronic format, and that Mr. Shaver requested the database in common software formats, The Courier asserted that KSP's denial was improper.
In supplemental correspondence directed to this office following commencement of The Courier-Journal's appeal, Assistant General Counsel Roger Wright defended KSP's position. Relying on "the reasons stated in its denial," he explained:
The Sex Offender Registry is primarily maintained in a proprietary database maintained for the Department of State Police by a third-party vendor which allows interface with the federal "NCIC" database. The software associated with this database is maintained in a non-standard format. As such, provision of the data maintained in the SOR to the Courier-Journal in its primary electronic format would be of no benefit as a copy of this proprietary software would be required to utilize the information.
The Department for law enforcement report generating purposes does maintain a portion of the data contained in the SOR in a Windows XP-based Excel format. This Excel format does not contain victim data, email address, or secondary address information, and thus does not wholly mirror the information contained in the online SOR. The Department further separately maintains offender photographs in .jpg format that can be produced in a standard format, but which is not linked to offender information in the Excel report format.
It was KSP's position that it "does not maintain the [Sex Offender Registry] as it is available online in a 'standard' electronic format. " We find that the availability of the Sex Offender Registry online does not relieve KSP of its statutory duty to produce a copy of the database in response to an open records request.
To begin, Mr. Shaver's request was not a standing request. Mr. Shaver did not, for example, ask that KSP provide him with a copy of the database as future changes are made to it or on a daily basis, but instead requested a copy of the database as it currently resides on the agency's website. In declaring that a public agency is not required to honor a standing request, this office has observed:
"Standing requests" for public records are not proper under the law. [See, e.g., OAG 91-78, OAG 92-30; 95-ORD-43; 97-ORD-18; 99-ORD-110; 06-ORD-171] . . . The right to inspect public records attaches only after those records have been prepared, owned, used, in the possession of, or retained by [a public agency] . No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that [an applicant's] request is prospective, [an agency] is not obligated to honor it.
06-ORD-171, p. 1, 2 (quoting 99-ORD-155, emphasis in original). Mr. Shaver requested a copy of a record currently in existence, namely, the Sex Offender Registry database located at http://kspsor.state.ky.us/ . While he may intend to resubmit a similar request at a future date, there is nothing "prospective" about the request that gives rise to this appeal. Accordingly, we find that KSP improperly characterized Mr. Shaver's request as a standing request and that it violated the Open Records Act in denying the request on this basis.
Similarly, we find that KSP failed to demonstrate by clear and convincing evidence, or indeed any evidence, that fulfilling Mr. Shaver's request would place an unreasonable burden on the agency. As noted, it is apparently KSP's position that because the database "is already available to the public via the Sex Offender Registry website, " it has no further obligation to produce public records in response to an open records request, and that it would be unreasonably burdensome to require it to do so. Respectfully, we disagree. On a number of occasions, this office has questioned whether furnishing a requester with a website address where records responsive to this request can be located, in lieu of affording the requester an opportunity to inspect the records onsite or receive copies by mail upon payment of reasonable copying charges, satisfies the agency's obligations under the Open Records Act. In 05-ORD-050, for example, we reminded the agency that the Act "generally contemplates records access by means of onsite inspection or receipt of copies through the mail," noting that although a requester "may wish to avoid the effort associated with conducting onsite inspection, or the expense associated with payment for copies, he may not have access to a computer or the necessary skills to obtain the records electronically." 05-ORD-050, note 1; see also 05-ORD-277.
In 06-ORD-131, we answered this question in the negative, concluding that the McCracken County Sheriff violated the Open Records Act in denying a request for a photograph of a fugitive, notwithstanding the availability of the record on the jail's website. Applying this line of reasoning to the instant appeal, we find that KSP has an independent statutory duty to provide access to nonexempt public records, including its Sex Offender Registry, under the Open Records Act, and as contemplated by the Act at KRS 61.872(3)(a) and (b) and KRS 61.874(6), 3 regardless of the presence of the same records on its website. As evidenced by the March 3, 2008, letter from KSP's Official Custodian of Records, KSP apparently honored a similar request submitted by Mr. Shaver last year and cannot now persuasively argue that his request is unreasonably burdensome, especially in the absence of clear and convincing evidence of such a burden. 4 See, e.g., 00-ORD-72 (holding that "mere invocation of [KRS 61.872(6)] does not sustain the agency's burden" and that the burden is similarly "not sustained by the bare allegation that the request is unreasonably burdensome" ).
More specifically, we fail to see how disclosure of the database in the requested format would impose any kind of burden on KSP. Mr. Shaver requested the database in an Excel format. In its March 27, 2008, supplemental response to Mr. Shaver's appeal, KSP acknowledges that it "maintain[s] a portion of the data contained in the SOR in a Windows XP-based Excel format, " noting that "[t]his Excel format does not contain victim data, email address, or secondary address information, and thus does not wholly mirror the information contained in the online SOR." 5 KSP further noted that it "separately maintains offender photographs in .jpg format that can be produced in a standard format, but which is not linked to offender information in the Excel report format. " Accordingly, KSP can honor Mr. Shaver's request by producing the records identified in that request in formats it currently maintains.
Mr. Shaver requested a copy of the Sex Offender Registry database in Excel format. KSP can produce the database in that format. Mr. Shaver did not specify a particular format in which he wished to obtain copies of the "sex offender photographs currently displayed on the website. " KSP can produce the photographs in the .jpg format in which they are currently maintained. Pursuant to KRS 61.874(2)(b), "[i]f the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requester's requirements, the public record may be provided in this alternative electronic format for standard fees as specified by the public agency. " 6 No contract is required and no additional fees can be assessed. KSP's refusal to provide Mr. Shaver with the requested copies therefore constituted a violation of the Open Records Act.
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 Mr. Shaver identified the website as http://kspsor.state.ky.us/ .
2 We will not lengthen this decision with a discussion of the irrelevance of the requester's intended use of the records sought. It is a proposition of law as old as the law itself that "[t]he purpose for the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Law." OAG 79-275, p. 1; accord Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) ("We state at the outset that our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request").
3 We hasten to note that Mr. Shaver's request does not implicate KRS 61.874(6) insofar as it is not a request for online access to public records, and that KSP therefore has no discretion to refuse his request. Mr. Shaver's request is, instead, a request for a copy of an existing public record that is maintained electronically, and, pursuant to KRS 61.874(2)(a), discretion rests with Mr. Shaver to designate the desired medium.
4 That letter states, in part:
I have forwarded your request to Graham Gray at our KSP Records Section. He will assist you as he did last year when you made a similar request.
Nevertheless, on the same date, Capt. Porter indicated that KSP "has no desire to enter into an agreement with The Courier-Journal . . . to provide you the updated database with photographs. "
5 As it appears online, the Sex Offender Registry does not contain email addresses or victim data (other than the age of the victim(s)). Although it contains a secondary address field, we located no entries in this field.
6 Accord, "Guidelines for Responding to Open Records Requests for Public Records in a Database, " http://www.kdla.ky.gov/recmanagement/Databaseas PublicRecord.pdf .