Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services violated the Open Records Act by characterizing Scott Langness's February 11, 2011, request for records relating to five nursing service contracts, identified by contractor name and data elements, as an improper request for information, attempting to evade its obligation to generate a report containing the data sought, and requiring payment for copies of records mailed to him but not responsive to his request.
In his February 11 letter to CHFS, Mr. Langness requested both paper and electronic copies of the "total expenditures for the fiscal years [2006-2010] for each commodity line, and its corresponding CL Description within the [named nursing service] contracts" identified in his request. Mr. Langness twice noted that the data sought could be extracted from the Commonwealth's eMars System by means of an existing query, filter, or sort as reflected in a page "pulled directly from Crit Luallen's Performance Audit of the Nursing Services Contract." 1 He acknowledged that CHFS mailed him "documents which [CHFS theorized] may be considered responsive to [his] request," 2 but asserted that the records did not contain the data sought. He further acknowledged that he returned these records to CHFS and that he refused to pay for their reproduction.
In supplemental correspondence directed to this office, CHFS asserted that "Mr. Langness made a request for information rather than a request for documents." Continuing, the agency observed:
No single document existed containing the information sought, nor did any document exist containing the information in the form demanded by Mr. Langness. The Cabinet is under no obligation to create documents in order to fulfill an open records request. [Citations omitted.]
CHFS maintained that, notwithstanding the deficiencies in Mr. Langness's request, a search was undertaken for "documents that might be considered to contain the information sought by Mr. Langness or from which he could have gained the information he wanted," and that 650 records located in that search were mailed to him on March 29, 2011. These were the records that Mr. Langness returned to the Cabinet as nonresponsive, and for which he has never paid. CHFS did not respond to Mr. Langness's assertion that the requested data "can and has been pulled from the Commonwealth's eMars System" as evidenced in the Performance Audit of the Nursing Services contract prepared by Auditor Luallen which he included in his original request and resulting appeal. Its failure to do so constitutes a critical omission.
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 as had been the Cabinet's obligations in 03-ORD-004. 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. 4
Mr. Langness's original request, as well as his letter of appeal, contains documentation from a Performance Audit of nursing services contracts confirming the existence of a query, filter, or sort capable of extracting the data he seeks. In correspondence directed to this office following receipt of CHFS's supplemental response, a copy of which was mailed to CHFS, Mr. Langness comments that a state release entitled "eMARS Frequently Asked Questions" 5 indicates that reports can be exported to a PDF, XLS, or CVS file format and tracked by commodity line, unit price, and quantity. CHFS makes no attempt to refute these assertions. Absent an explanation why it cannot generate the requested data, to which the Auditor clearly had access, Mr. Langness's February 11 request must be treated as a standard request under KRS 61.874(3). CHFS 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 cost of staff required. Accord, 09-ORD-197.
While we appreciate CHFS's attempts to satisfy Mr. Langness's request through production of alternative records that "might be considered to contain the information sought," our analysis remains unchanged. Because these records were not the records identified in request, they do not satisfy his request and he cannot be compelled to defray the cost of reproduction. 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 data relating to nursing service contracts from eMars, we find that CHFS violated the Open Records Act in denying Mr. Langness'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.
Distributed to:
Scott LangnessKathy BurkeCatherine York
Footnotes
Footnotes
1 This observation appears in both Mr. Langness's February 11 request and in his April 25, 2011, letter of appeal, a copy of which was transmitted to CHFS by this office along with our notification of receipt of his open records appeal.
2 CHFS's May 4, 2011, response to notification of receipt of Mr. Langness's appeal.
3 Now, the Commonwealth Office of Technology.
4 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
5 finance.ky.gov/NR/rdonlyres/1B8D94CF.../emars _Grants_FAQ_V4.pdf