Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the April 11, 2011, request 1 of Frank Boyett, Staff Writer for The Gleaner, for "KSP data that shows the current number of [CCDW] permits broken down by county" in electronic format or, if such a record was not in existence, "a paper copy of the record layout of the database described in KRS 237.110(10) ," commonly known as "a data dictionary or a field list," 2 which "shows the names of all fields in a table or tables, along with descriptions of the type of data in each field." Mr. Boyett also requested "a list of all reports that can be generated by this database. " In a timely written response, KSP Official Custodian of Records Shiann N. Sharpe reiterated that KSP "does not have the ability to filter or search the CCDW database by county; therefore, the report you are requesting does not exist." Citing a line of prior decisions by this office, Ms. Sharpe asserted that "a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have." Quoting the language of KRS 61.878(1)(c)1. without further explanation, KSP denied Mr. Boyett's request for a copy of the data dictionary/ field list, and the list of reports that can be generated, the nonexistence of which it ultimately asserted. Given the limited evidence presented, this office must conclude that, although KSP may be able to satisfy the criteria of KRS 61.878(1)(c)1. as required to justify withholding the data dictionary/ field list requested on that basis, it has not done so here.
By letter dated April 26, 2011, Mr. Boyett initiated this appeal, expressly focusing on the denial by KSP of his request "for a data dictionary and a list of the reports the CCDW database can generate." Mr. Boyett "failed to see the logic of" KSP's position regarding KRS 61.878(1)(c)1., noting that "[i]t might make sense if I were asking for the software code to this database, but a data dictionary is practically generic and any bona fide proprietary information could easily be redacted. " As for the requested list of reports, Mr. Boyett contended "that this is the type of information a software company would put in its brochure." Upon receiving notification of Mr. Boyett's appeal from this office, Ms. Sharpe reiterated the agency's position relative to his original request, which is no longer in dispute, and further explained that KSP "has no operational need to know how many permits are requested and/or issued by county, and, consequently, does not generate any reports that sort by this category." She also correctly observed that KSP "is not required by law to keep records in this manner." Because there is "no operational need" for the agency to sort using this criterion, KSP continued, "when the CCDW database was created there was no mechanism designed allowing the agency to extract that data from the database as requested." In light of the restrictions found at KRS 237.110, Ms. Sharpe concluded, "the database was specifically designed so that field searches such as the one requested cannot be conducted."
In addressing Mr. Boyett's "secondary request," which is our focus here, KSP clarified that "a list of searches that can be conducted by the database" similarly does not exist. 3 With regard to the requested data dictionary/ field list, KSP argued that "it is proprietary in nature" because it is "a blueprint of the database. Essentially, it is the raw construct of the database that can be used to reconstruct proprietary software that KSP purchases from Open Portal Solutions." In reply, Mr. Boyett clarified that he is not asking KSP "to create a new record." He is "seeking to determine what records already exist."
Noting that Ms. Sharpe's response "seems to indicate that the database in question is capable of producing only one report, that described in KRS 237.110(18)," Mr. Boyett explained that his purpose in asking for a data dictionary "is to determine whether there is a legal way of coaxing more public information out of this database than is contained in the annual statistical reports described" in that provision. In closing, Mr. Boyett reiterated "that a data dictionary is practically generic for all intents and purposes, and that any bona fide proprietary information can easily be redacted if deemed necessary. Much of it could probably be extrapolated from a blank [CCDW] application form." Ms. Sharpe subsequently explained that "[w]hile the data dictionary may include categories of information that are not provided in the annual statistical reports, Mr. Boyett correctly observed from the previous response that there is only one statistical report capable of being produced from this database. " KSP has "already conceded" that it collects information such as the county of issuance; however, Ms. Sharpe reiterated, there is "no operational need and no means in place to provide it."
More significantly, KSP maintains "that the data dictionary or field list is a blueprint of the database and is proprietary material of Open Portal Solutions; consequently, the data dictionary is exempt from production pursuant to KRS 61.878[(1)](c)1." In the absence of any specific facts or documents to establish that the data dictionary/ field list was "confidentially disclosed" to KSP or required . . . to be disclosed to it," or that it is "generally recognized as confidential or proprietary, " discussion of whether disclosure "would permit an unfair commercial advantage to competitors" of Open Portal Solutions is unnecessary; this office cannot affirm the agency's denial of the basis of KRS 61.878(1)(c)1., in light of the statutory mandate codified at KRS 61.871 and the unambiguous language of that exception, based on the agency's unsupported assertion that it is "proprietary in nature" as it is a "blueprint of the database. " 4
To successfully invoke KRS 61.878(1)(c)1., a public agency must establish that the public records in dispute are:
1) confidentially disclosed to [the] agency or required by [the] agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
03-ORD-064, p. 5. Citing the legislative declaration of policy found at KRS 61.871, and the mandatory language of KRS 61.880(2)(c), the Attorney General has consistently recognized that he is "bound by a rule of strict construction in interpreting the exceptions to the Open Records Act, and all doubts must be resolved in favor of disclosure. " 99-ORD-88, citing 96-ORD-221, p. 2.
KRS 61.880(1) dictates the procedure which a public agency must follow in responding to a request submitted pursuant to the Open Records Act. In relevant part, it provides that an "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Accordingly, the Kentucky Court of Appeals has observed that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the Court observed, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. KSP initially referenced the statutory exception it relied upon, it merely quoted the language contained therein, failing to provide even a brief explanation of how the exception purportedly applies to the records withheld. It only improved upon this to a limited extent in responding to Mr. Boyett's appeal. Absent proof that the records in dispute were confidentially disclosed to KSP or required to be disclosed to it, are generally recognized as confidential or proprietary, and are of such a character that disclosure would provide an unfair commercial advantage to competitors of Open Portal Solutions, the Attorney General must conclude that KSP has failed to substantiate its position.
On at least two occasions, the Kentucky Supreme Court has analyzed KRS 61.878(1)(c), concluding that the public agencies which had invoked subsections (1) and (2), 5 respectively, on behalf of a private entity had met their statutory burden of proof. In Marina Management Services, Inc. v. Cabinet for Tourism, 906 S.W.2d 318, 319 (Ky. 1995), the Court held that records containing financial information of privately owned marina operators were exempt from disclosure. The Court reasoned that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. In so doing, the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditor's Office. On these facts alone, the exemption clearly applies.
Id. at 319. As indicated above, the Parks Department adduced sufficient proof to support invocation of the exemption.
Similarly, in Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766, 768 (Ky. 1995), the Court found:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
Again, the public agency from which access to confidentially disclosed records of a private corporation was sought established that those records were generally recognized as confidential or proprietary. 6 No such evidence has been presented here. 7
These cases, along with the cited open records decisions, demonstrate that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. That exception "is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage." 97-ORD-66, p. 10. In 04-ORD-175, the Attorney General engaged in a lengthy analysis of this issue, concluding that the Kentucky Labor Cabinet (then "Department of Labor") had not satisfied its burden of proof relative to KRS 61.878(1)(c)1. More specifically, this office held that an "unsupported allegation such as '[p]ictures and information involving the company's procedures for processing materials have been removed as they are considered 'trade secrets' does not constitute sufficient evidence to establish that the records qualified for exclusion." Id., p. 10. Noticeably absent from the record, as in 04-ORD-175, is any detailed information or documentation to substantiate KSP's assertion that all of the data dictionary/ field list falls within the parameters of KRS 61.878(1)(c)1. See 07-ORD-166 (holding that agency's removal of the company's "procedures for processing materials" as "Trade Secrets" that would "generally be recognized as confidential or proprietary and were so marked" was improper as the agency conceded that "specific information regarding the competitive harm [the company] might suffer" was lacking and then assumed that such a disclosure "would result in commercial advantage to competitors" without elaborating); 09-ORD-010 (record on appeal was devoid of evidence that disclosure of responsive Owner's Manual would "permit an unfair commercial advantage" to competitors of Michelin). Compare 06-ORD-172 (finding that evidence of record, including a copy of the letter sent by the company to Department requesting that all information released to OSHA remain confidential and explaining how disclosure would permit an unfair commercial advantage to competitors, justified invocation of KRS 61.878(1)(c)1.).
KSP has not specifically argued that information contained in the data dictionary/ field list was "confidentially disclosed" to it, despite having three opportunities, but even assuming arguendo that criterion is or can be met, KSP has not established that it is "generally recognized as confidential or proprietary, " nor has KSP demonstrated the unfair commercial advantage that would result from disclosure as required to successfully invoke KRS 61.878(1)(c)1. See 04-ORD-175; 07-ORD-166. A "bare allegation, without a supporting explanation, is not sufficient under the Open Records Act. " 04-ORD-175, p. 11, citing 96-ORD-135, p. 4. In so holding, this office does not imply that KSP cannot build a case under KRS 61.878(1)(c)1. for withholding portions of the data dictionary/ field list, only that it has not done so here. See 09-ORD-010; 09-ORD-050.
As in 09-ORD-010, this office "recognizes that in some instances the details of the confidential and proprietary nature of documents may not be readily available or recognizable to a public agency. " Id., p. 6; 11-ORD-076. Because the agency is ultimately the party responsible for satisfying its burden of proof in excluding documents from inspection under KRS 61.878(1)(c) 1., however, "in those instances where a public agency has been asked to disclose information it believes may be confidential or proprietary in nature, best practice would be for the agency to notify the entity most interested in protecting the confidential nature of the document(s)." Id. Just as the circuit court would allow a party to intervene for the purpose of protecting the confidentiality of its documents, the Attorney General would permit input from the private third party whose information was at issue in cases where KRS 61.878(1)(c)1. is being invoked. Id. KSP did not opt to do that here nor did it otherwise adduce sufficient proof to justify its reliance on that exception; accordingly, the agency should provide Mr Boyett with either a copy of the screen containing the requested fields (uncompleted) in electronic format, or if a mechanism does not exist by which it can do that, a redacted hard copy. 8 "Bearing in mind that the Attorney General is constrained by time and resources from conducting an in-depth inquiry into the issue presented, and that on occasion, the application of the Open Records Act must be determined by a court of law, an avenue that remains open to [KSP] if [it] disagrees with our decision," this office finds that it has not satisfied its burden of proof under KRS 61.878(1)(c)1. in denying Mr. Boyett'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:
Frank BoyettShiann N. SharpeRoger G. Wright
Footnotes
Footnotes
1 Mr. Boyett first requested "the most recent report from the [KSP] database that shows the current number of valid concealed carry permits in each Kentucky county" as well as "digital copies of annual reports that show how many [CCDW] permit requests are made from each county and how many are approved" for 2006-2010, by letter dated March 29, 2011. In a timely written response, Ms. Sharpe explained that KSP "does not have the ability to filter or search the CCDW database by county; therefore, the report you are requesting does not exist." However, Ms. Sharpe further advised that "[r]ecords in existence most responsive to your request are the annual statistical reports which have the information you specified for the entire state as required by KRS 237.110(18)." In a "good faith effort" to satisfy his request, Ms. Sharpe provided Mr. Boyett with copies of those reports for 2006-2010; Mr. Boyett submitted his revised request on April 11.
2 A "data dictionary, " according to a representative from the Kentucky Department for Libraries and Archives, "can have different meanings in different situations," but in that setting refers to "a list of metadata elements used to describe records in a repository" and is usually associated with databases. Given that Mr. Boyett used the terms "data dictionary" and "field list" interchangeably, and the record on appeal was devoid of any additional insight or information regarding the precise meaning of either term, this office consulted with representatives from the KDLA with expertise in this area. Apparently the meaning has changed somewhat over time. Twenty years ago, a "data dictionary, " according to KDLA, "was a list of systems, tables and fields in a hierarchical relationship." Since then, however, "the computing world switched to relational databases that did not have a fixed hierarchy, but established relationships between tables using linking fields." According to http://dictionary.reference.com/browse/data+dictionary, a "datadictionary" is also called a "data directory" and is defined as "an index of data held in a database and used to assist in the access to data," or, alternatively, is a "data structure that stores metadata, i.e., data about data." Our holding today is premised on the assumption that Mr. Boyett is merely asking for a list of data elements or fields, rather than "the complete structure of the system," which, as KDLA explained, might arguably be considered proprietary. This discrepancy of sorts may be partially responsible for the parties' differing views regarding its accessibility.
3 Based upon his final correspondence following this appeal, it appears that Mr. Boyett is now focused primarily on the denial of his request for the data dictionary/ field list; however, to the extent his request for a list of searches that can be conducted remains in play, KSP ultimately clarified that no such record exists and credibly explained why the statutorily required list is the only list created. In the absence of a prima facie showing to refute this position, this office has no basis upon which to find that KSP violated the Act under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2008). See 07-ORD-188; 07-ORD-190. Mr. Boyett has not cited, nor is the undersigned counsel aware of any existing statute, case law or regulation that would refute KSP's position.
4 According to KDLA, this assertion is not entirely accurate; rather, a data dictionary refers to how the database is organized and is not unique to any particular database. Additionally, it cannot be used to reconstruct a database. In contrast, how the data elements are linked together may well be proprietary.
5 KRS 61.878(1)(c)2. provides:
Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
a. In conjunction with an application for or the administration of a loan or grant;
b. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154;
c. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
d. For the grant or review of a license to do business.
6 This office has recognized that while a public agency may give assurances of confidentiality relative to public records, those assurances will only be accorded deference to the extent that they are consistent with one or more exceptions to the Open Records Act. See, e.g., OAG 79-413; OAG 90-13; 92-ORD-127. The record in this appeal is devoid of any specific facts or evidence that such assurances were given beyond KSP's initial quotation of the relevant statutory language. See 11-ORD-076.
7 In Hoy, the Court construed KRS 61.878(1)(c)2., which does not require a showing that disclosure of the records would permit an unfair advantage to competitors of the entity disclosing the records, the third criterion codified at KRS 61.878(1)(c)1. However, the language of these provisions is identical as to the first two criteria. Like the other exceptions to public inspection, the burden of proof relative to invocation of KRS 61.878(1)(c)1. and (1)(c)2., as indicated, rests with the agency. In other words, the public agency must prove that the records were confidentially disclosed to it by the entity and are generally recognized as confidential or proprietary, neither of which has been established here.
For examples of the type of evidence which enables a public agency to successfully invoke KRS 61.878(1)(c)1., see 99-ORD-201; 02-ORD-125, and 10-ORD-191.
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8 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.