Request By:
Ken Kramer
Kentucky Board of Medical Licensure
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure violated the Kentucky Open Records Act in denying Ken Kramer's May 13, 2013, e-mail request 1 for "a spreadsheet via email listing every physician (Medical Doctor and Osteopathich [sic] Physicians) who has ever been disciplined or has reached a stage of probable cause" for "[a]s far back as your computer records go." By letter dated May 14, 2013, Records Custodian Bertha L. Wallen denied Mr. Kramer's request as the "record(s) you requested are not in existence in [the] format requested." Mr. Kramer subsequently asked the KBML, by e-mail dated May 14, to "[p]rovide the record in the form in which it exist[s]." By email dated May 20, 2013, Ms. Wallen reiterated to Mr. Kramer that the "document you requested does not exist. Therefore, I cannot furnish you with a copy under" the Open Records Act. Quoting the definition of "public record" codified at KRS 61.870(2), and reiterating that he revised the May 13 request, asking that a record containing the information be provided in the form in which it exist[s] , he initiated this appeal on June 10, 2013. (Original emphasis.) Mr. Kramer also noted that he is "working on a research project obtaining disciplinary public records from every state on MDs and Osteopathic physicians" but in Kentucky "summaries for these records" found at http://kbml.ky.gov/board/bar.htm) only date back to 2009.
Upon receiving notification of Mr. Kramer's appeal from this office, Assistant General Counsel Leanne K. Diakov responded on its behalf. Ms. Diakov asserted that its response was "consistent with the provisions of the Open Records Act because the Board does not maintain a compilation of the requested information and certainly not in the spreadsheet format requested." In support of its position, the KBML relied upon 96-ORD-53, in which its denial of a request (for a record in hard copy format) was affirmed on that basis "where the Board did not maintain a compilation of the names of all the cases before the Board in which a certain physician testified." 2 The KBML also cited a line of decisions holding generally that a public agency is not required to conduct research, compile information, or create a list/record for the purpose of satisfying a request, a principle which remains valid if not dispositive. Ms. Diakov maintained that if the KBML, established in 1972, was required to "gather and compile information pursuant to Mr. Kramer's request, it would have to expend great time and resources to research nearly 41 years of agency records" for the purpose of creating a spreadsheet. However, the KBML did not address the request as promptly revised on May 14 3 (prior to Mr. Kramer's appeal) or provide any explanation for its apparent unwillingness to provide any responsive documents in their native format notwithstanding Mr. Kramer's acknowledgement that production of existing records containing the requested information would satisfy his request for the records "in the form in which [they] exist[]."
As explained below, in response to questions posed under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the KBML advised that it began to electronically maintain "Board Action Reports," i.e. , the responsive public records accessible on its website beginning with 2009, in PDF (portable document format) in 2001; the KBML also has paper copies of "many" of its Board Action Reports dating back to 1986. Thus, in accordance with existing legal authority, this office finds that in the absence of a preexisting query, filter, or sort capable of extracting the information requested from its database, the KBML did not err in declining to tailor the format of its database to conform to the parameters of Mr. Kramer's request; however, in the alternative, the KBML was required to provide him with copies of existing public records containing information responsive to his request in the minimum standard format or in their native format per KRS 61.874(2)(b) for a reasonable fee not to exceed the actual cost of reproduction, excluding the cost of staff required. See 08-ORD-080; 09-ORD-197.
"The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. Significantly, this office has long held "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See, e.g., OAG 81-333; 93-ORD-50; 11-ORD-026. In 02-ORD-165, the Attorney General specifically recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." Id., p. 4, quoting 96-ORD-251. However, this office has consistently recognized that regardless of the format requested, the analysis does not end there. See OAG 89-61; 97-ORD-6. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5.
Unable to determine what exactly the KBML "has and the format in which the agency has it," given the lack of evidence presented on this dispositive question, this office posed a series of questions to Ms. Diakov, by letter dated July 2, 2013, in order to facilitate a correct resolution of this matter. Significantly, this office learned that the KBML began maintaining Board Action Reports in PDF in 2001; the KBML maintains hard copies of "many" of its Board Action Reports dating back to 1986 although some have apparently been "lost"; the KBML database allows for the "query" as to whether a "current order" or "previous action" exists for an individual licensee but does not categorize or sort orders or actions as "disciplinary" or "non-disciplinary"; the KBML "does not categorize its orders or actions according to whether action was taken prior to or after an administrative hearing" ("disciplinary" within the meaning of KRS 311.591(7)(c)); 4 the database "could technically be made to allow for other general 'queries' . . . [but] the Board would have to 'create a query function' which does not exist"; 5 the KBML must have the individual licensee's name or license number in order to determine whether the licensee has been subject to action of any kind; and the KBML is not able to attach images or create searchable fields on its website independently.
Upon receipt of the supplemental response by the KBML, Mr. Kramer again reiterated that he "asked for the records in the format in which they exist because the [KBML] only puts the Board Action Reports online back to 2009." Mr. Kramer confirmed that said Reports, existence and possession of which the KBML has acknowledged (in electronic format dating back to 2001 and in hard copy format dating back to 1986), if provided, would satisfy his request. Inasmuch as disclosure of the Board Action Reports in their existing or native format is required under existing legal authority, the KBML violated the Open Records Act in declining to provide Mr. Kramer with access electronically, 6 and upon receipt of payment for copies and postage costs per KRS 61.874(1) and (3) relative to Reports which exist only in hard copy format.
Recognizing as a threshold issue that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)," the Attorney General has addressed the issue of public access to governmental databases a number of times in recent years. See, for example, 02-ORD-148 (Kentucky Fair and Exposition Center employee database) ; 05-ORD-129; 10-ORD-061; 11-ORD-176; 12-ORD-028. The majority of these decisions involved requests for specific fields of information maintained in the subject database, as opposed to requests for the entire database, and the public agency's discretion per 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. See 06-ORD-148; 12-ORD-028. In 03-ORD-214, the Attorney General was asked to determine whether the Kentucky Tobacco Settlement Trust Corporation had properly denied a request for the database containing the Phase II payments from 2002, identifying the quantities used in calculating the payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of that data. Although the Corporation erred in denying the request, this office concluded that the Corporation satisfied its duty under the Open Records Act by providing the records in standard format as defined at KRS 61.874(2)(b). The Corporation was not obligated to tailor the format to conform to the parameters of the subject request. Relying upon 03-ORD-004 (disclosure of existing database, with appropriate redactions to protect identifying information relating to individual recipients of Medicaid, was not unreasonably burdensome under KRS 61.872(6)), this office held that the Corporation discharged its duty under the Act by making the entire database available in the format in which it was regularly maintained. 03-ORD-214, p. 9 (citations omitted).
KRS 61.874(3) speaks directly to this issue. In relevant part, KRS 61.874(3) provides that "[i]f a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred." In construing this provision, the Attorney General has consistently observed that "[a]lthough they are not required to do so, public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing, incur 'actual costs' in addition to media and mechanical processing costs . . . that could properly be passed along to the requester. " 01-ORD-158, p. 4 (agency was not required to comply with request for compilation of statistical data not already maintained); compare 05-ORD-116 (given its "duty to make government more accessible by providing access to public records at a nonprohibitive charge, and its admission that a query currently exists that is capable of extracting [the requested] information from its database . . . the Personnel Cabinet subverted the intent of the [Act] by attempting to impose [a programming charge]"). This position mirrors the holdings in a line of decisions dating back to 95-ORD-82, recognizing that 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 and actual costs in the event that it affirmatively exercises that discretion. 99-ORD-68; 02-ORD-148; 05-ORD-129; 06-ORD-148; 07-ORD-162; 09-ORD-197; 11-ORD-085.
Because the language of KRS 61.874(3) is discretionary, the KBML did not violate the Act in refusing to reformat its database to conform to the parameters of Mr. Kramer's request as originally framed. As noted, however, the analysis does not end there. In 02-ORD-89, the Attorney General reaffirmed the principle that a public agency can properly decline to reformat its database for the purpose of satisfying a request for information in a specially tailored format by virtue of KRS 61.874(3). However, this office also recognized that "[t]he agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." Id., p. 12, note 5. See 05-ORD-129 (database maintained by the agency contained information responsive to request and redacting information contained in a database is not the equivalent of producing a record in a nonstandardized/specially tailored format) ; 12-ORD-168 (in lieu of creating a query to extract requested information the agency could release the entire database in a format "that preserves relational context and content"). Here, this alternative is unnecessary given the agency's ultimate confirmation that Board Action Reports exist in electronic format dating back to 2001 and in hard copy format dating back to 1986; these Reports are responsive to Mr. Kramer's request for public records containing the information being sought in the format in which they exist. Because Mr. Kramer is neither asking the KBML to reformat its existing database for the purpose of satisfying his May 14 request nor asking the KBML to tailor the format in order to meet his particular needs, the agency lacks discretion to deny his request per KRS 61.874(3). See 03-ORD-214; 07-ORD-130.
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.
# 200
Distributed to:
Ken KramerBertha L. WallenLeanne K. Diakov
Footnotes
Footnotes
1 Although e-mail is not included among the permissible methods of submitting a request identified at KRS 61.872(2), a public agency can waive this requirement expressly or by a course of conduct, by responding without objection, as the Board apparently did here. 07-ORD-064, p. 2.
2 Significantly, this office also went on to find that "[i]t is enough, in such a case, to make available for inspection and copying the records which contain the information sought." 96-ORD-53, p. 2. Because the requested information had not been compiled, the Attorney General concluded, the requester "must expend his own energy to extract the information that is responsive to his request." Id., p. 3. Our holding today requires nothing more of the KBML and will essentially result in the requester having to compile information derived from the Board Action Reports for himself consistent with existing authority.
3 By e-mail dated June 24, 2013, Mr. Kramer noted that Ms. Kiakov failed to address the request as promptly revised on May 14. Mr. Kramer clarified that he "did not ask for a record to be created." He was "not asking for research to be done" nor was he "asking for any records to be compiled." Mr. Kramer again requested that the responsive public records be provided in the form in which they exist. "Certainly the record exists in some format, " he argued, "if it hasn't been destroyed." On June 25, 2013, Mr. Kramer repeated this assertion. The KBML maintained that it "responded appropriately" and "stands behind its response of June [17] and will not be submitting additional comments."
4 All of the "actions" described in the agency's response arguably fall within the overall category of discipline, and our holding is premised on the assumption that the KBML has no preexisting query, filter, or sort capable of extracting the requested information.
5 The KBML cannot produce nonexistent Board Action Reports for inspection or copying; however, the loss or destruction of a public record creates a rebuttable presumption of records mismanagement. 11-ORD-104, p. 5. Inasmuch as the KBML has offered no explanation for the apparent loss of "some" Board Action Reports, it may wish to consult with the KDLA regarding proper management and retention of such records.
6 Because the Reports are maintained electronically dating back to 2001, the requester is authorized under KRS 61.874(2)(a) to specify whether he wishes to receive the records electronically or in hard copy format.