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 violated the Open Records Act in the disposition of Mark W. Leach's August 18, 2009, request for copies of:
The activity log for Pike County for all units of D and L Incorporated d/b/a Respond Ambulance Service, DHP Incorporated (Magoffin County), First Response Ambulance Service, Inc., and Martin County Emergency Service, Inc. from the CAD dispatch system for the past twelve (12) months.
We find that although KSP provided Mr. Leach with an Operational Time Analysis Summary after he initiated this appeal, KSP acknowledged that the summary is an "alternative" to the requested records. In the absence of an explanation why it cannot generate an activity log for Mr. Leach's August 18, 2009, open records request utilizing the same query, filter, or sort that it used to generate an activity log for his July 22, 2009, request, we find that KSP failed to meet its burden of proof in denying his August 18 request.
In its original response to Mr. Leach's August 18 request, KSP stated it did "not have a record in existence containing the information specified . . . [and] to comply . . . KSP would have to create the record." KSP argued that the Open Records Act, as construed by the Attorney General in referenced decisions, does "not require the gathering and supplying of information." Within a month, Mr. Leach initiated this appeal, noting the "inconsisten[cy] with its prior responses to requests for similar public records and, more importantly, the Act."
Mr. Leach explained:
The KSP uses a computer assisted dispatch ("CAD") system, which creates a database containing information regarding each dispatching event. Among the information collected and stored in the database is the identity of the service provider for each event, such as D and L Incorporated, DHP Incorporated, First Response Ambulance Service, Inc., and Martin County Emergency Service, Inc. . . . I have previously requested and received information from the CAD system sorted by service provider . . . . This was possible because it appears that the KSP needed only query, sort by, or filter for the particular service provider to extract the information.
In support, Mr. Leach attached his July 22 request for "[t]he activity log for all units of DHP Ambulance Service from the CAD dispatch system for the past twelve (12) months," KSP's August 10, 2009, response granting his request, and the "Unit DHP-X Activity" report it subsequently produced. Additionally, he cited open records decisions of this office recognizing that public agencies are required to honor "a request for information contained in a database . . . [if] there is a pre-existing query, filter, or sort capable of extracting the specific information, " and, if no query, filter, or sort exists, to "make available the entire database. "
In supplemental correspondence KSP stated that, following receipt of Mr. Leach's appeal, "the Custodian of Records consulted with various Radio Room Supervisors throughout the agency to determine if there was an alternative method to satisfy [his] request." She determined:
[T]here is a pre-existing report identified as an Operational Time Analysis Summary which includes the number of calls, the average time to dispatch, the average arrival time, the average call completion time, . . ., as well as year to date totals and averages for every emergency medical service provider requested [with the exception of Martin County Emergency Services, which KSP does not dispatch] .
Because the summary is not the activity report Mr. Leach requested, this appeal cannot "be dismissed as moot in accordance with 40 KAR 1:030 Section 6 . . . ."
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 (holding that "[KRS 61.870(2)] is inclusive, extending to all 'documentation regardless of physical form or characteristics . . .'"); see also, 95-ORD-82 (Louisville Division of Police arrest database) ; 00-ORD-206 (Department of Corrections criminal records database) ; 02-ORD-148 (Kentucky Fair and Exposition Center employee database) ; 03-ORD-004 (Cabinet for Health Services Medicaid database) ; 05-ORD-116 (Personnel Cabinet payroll database) ; 06-ORD-148; 07-ORD-130. The majority of these decisions have focused on open records requests for particular fields of information maintained in the database, as opposed to requests for an entire database, and the public agency's discretion, under KRS 61.874(3), to decline such a request in the absence of a pre-existing query, filter, or sort capable of extracting the specific information sought.
In 03-ORD-214 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. We relied on 03-ORD-004, holding 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 determined that the Corporation's obligations were satisfied by release of the entire database in the format in which it was 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.
The Attorney General reasoned:
KRS 61.874(3) speaks directly to this issue, providing in relevant part:
(Emphasis added.) In 01-ORD-158, the Attorney General examined this provision, opining:
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.
05-ORD-116, p. 3, 4
This line of decisions is 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. 2 In its supplemental response, KSP does not acknowledge that it provided Mr. Leach with a copy of similar information from its CAD system, sorted by service provider, on August 10, 2009. The documentation Mr. Leach submitted with his appeal nevertheless confirms the existence of a query, filter, or sort capable of extracting the specific information he seeks. Absent an explanation why it cannot generate the requested activity log using the same query, filter, or sort that it used to generate the activity log released to him on August 10, Mr. Leach's August 18 request must be treated as a standard request under KRS 61.874(3). KSP is obligated to fulfill that request in the minimum standard format, or in its native format per KRS 61.874(2)(b) if "this format conforms to the requester's requirements," for a reasonable fee not to exceed the actual cost of reproduction excluding the cost of staff required.
The fact that an alternative record exists that may "serve Mr. Leach's purpose" does not alter our analysis. Because it is not the document identified in his request, it does not "satisfy" his request. Nor does disclosure of an alternative record obligate the Attorney General to dismiss the appeal "as a moot complaint in accordance with 40 KAR 1:030 Section 6." That regulation applies only if " the requested documents are made available to the complaining party after a complaint is made . . . ." (Emphasis added.) KSP did not make "the requested documents" available to Mr. Leach, but instead made available an alternative document. The issue on appeal is therefore not moot. Accord, 09-ORD-007, p. 4; 09-ORD-028, p. 4. In light of its duty to make government more accessible by providing access to public records, and the uncontradicted evidence that a query, filter, or sort exists that is capable of extracting information from its CAD system relating to named service providers, we find that KSP violated the Open Records Act in the disposition of Mr. Leach's request.
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.
Mark LeachShiann N. SharpeRoger Wright
Footnotes
Footnotes
1 Now, the Commonwealth Office of Technology.
2 These guidelines are developed, and are 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