Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the City of Mortons Gap violated the Open Records Act in its handling of requests submitted by James Sisk on December 2 and December 11, 2013, and requests submitted by Alan Rash on or about January 6, 2014. Mr. Sisk requested "any and all reports able to be printed from the GPS device installed in the City of Mortons Gap police car" from July 1, 2013, to December 2, 2013. Mr. Rash requested "travel detail of the Mortons Gap police car that was in operation from July 1, 2013, through January 5, 2014, able to be printed from the GPS device installed in the . . . police car. " Mr. Rash also submitted a written request "to view and print onsite the GPS Tracking History/Historical Tracking details of the Mortons Gap police car as monitored from the GPS device installed in the said police car from July 1, 2013, through January 5, 2014." We find that the city discharged its duty by providing Mr. Sisk with copies of the travel detail report for the six month period identified in his request and Mr. Rash with the same report for the six month and five day period identified in his request, and the city was not required to permit Mr. Rash to view the onscreen representational map of the actual track of the police car, that includes a rollover feature to access the latitude and longitude of each stop, and to create a screen shot of each stop's coordinates.
The city responded to Mr. Sisk by letter dated December 18, 2013, advising him that because it was in the midst of an office move, neither the internet nor the GPS tracking program could be accessed. 1 The city indicated that its move would be completed on December 26 and the requested records would be available on December 27. Mr. Sisk retrieved the GPS tracking reports on December 27, but asserts on appeal that the records produced are not the records requested.
The city responded to Mr. Rash's requests by providing him with "nearly 200 pages of GPS tracking data," but denied his request to conduct onsite inspection of the tracking history. The city advised:
[A]ccording to the [GPS Tracking Software] vendor, the longitude and latitude detail that you have requested is not tracked or logged by the software in a manner that supports a printed report or is otherwise readily available. However, as you know from the nearly 200 pages of GPS tracking data that we provided earlier this week, we do have the ability to provide, and have provided to you, the street address location of the GPS unit for the dates in question.
In supplemental correspondence directed to this office after Mr. Rash initiated an open records appeal, the city elaborated on this position:
[T]he GPS data was provided to Mr. Rash in the printed format that the city's GPS software supports. The GPS software is an "off the shelf" program. Just as purchasers and users of an "off the shelf" software program like Microsoft Word or Excel cannot modify or edit that software to create functions or formats that are not originally programmed by its creators, the city does not have the ability to re-program or otherwise edit the GPS software functions or formats. To require the city to do otherwise is to require the city to create a new record that does not currently exist.
Turning to Mr. Rash's request to view the GPS tracking history onsite, the city likened the request to a request to "freely peruse government offices, desks, and file cabinets, fishing for files that may look interesting." The city described the challenge his request poses as follows:
[T]he GPS software at issue is installed on the City Clerk's computer at City Hall. This computer holds a host of other software programs necessary for the daily operations of city government, as well as confidential and private information related to city utility customers, tax information, as well as confidential city payroll and employee data. Allowing members of the public unfettered access to the City Clerk's computer jeopardizes confidential information and could quickly become so burdensome that the City Clerk is unable to efficiently perform her other regular and necessary duties.
Emphasizing his right to inspect public records identifying the "exact latitude and longitude" rather than records identifying "general and vague locations . . . [such as] 'street Madisonville,'" Mr. Rash disputes the city's position that he has already been afforded access to all responsive records. He explains:
All GPS devices operate on Latitude and Longitude. Under the Tacking History, a map is shown of all stops that the car makes while in service. Each stop is numbered . . . . Upon placement of the cursor on the numbered stop a window pops up displaying the information for that stop which includes latitude and longitude. At that point, a printed version of that information is available.
It is to these records that Mr. Rash seeks access.
Because this Office finds that the relevant computer information at issue is not a public record, Mr. Rash's right to inspect the relevant computer and GPS software program is not required by the Open Records Act. However, the issue of whether an individual may inspect public records via a government computer, under KRS 61.872, has been addressed extensively by Franklin Circuit Court and this Office. See Commonwealth of Kentucky, Department of the Treasury v. Mindy Hines , 98-CI-00134 and 98-CI-0345 (Franklin Circuit Court, January 21, 1999); 2 See also 00-ORD-8 (while the question of whether public access to an agency's computers for purpose of conducting an on-site inspection must be decided on a case by case basis, the Kenton County Fiscal Court discharges its duty to permit on-site inspections of electronically stored agency records by printing out hard copies and making them available for inspection as an alternative to permitting the requester to use the agency's computers); OAG 90-50 (holding that the City of Louisville violated KRS 61.872(1), relating to suitable facilities for inspection, in denying request to use city's reader-printer to inspect microfilmed public records) ; 93-ORD-46 (a school council subverts the intent of the Open Records Act by providing copies of requested records on computer disk where the requesting party does not own a computer and is not skilled in the use of computers, and is thus effectively denied access to the records; the council must either provide copies in paper form or arrange for the requesting party to use its computer to review the records).
To facilitate our review of the issues on appeal, this office requested additional information from the City of Mortons Gap pursuant to KRS 61.880(2)(c). 3 In response to our request for a description of the uses, applications, and limitations of the city's GPS tracking software, the city advised that, according to the vendor, its software does not "allow or support the standard printed report previously provided to Sisk and Rash to reveal the longitude and latitude information in place of the address information on the report as provided. Accordingly, under KRS 61.874(3) 4 the city is under no duty to provide the information in the nonstandardized format requested." Thus, it was and is the city's position that "the manner of obtaining and printing the requested longitude and latitude information described in this inquiry is not supported by the standard reporting functions of the software, and therefore would constitute tailoring the format of the new printed report to meet the request of the requesting parties."
The requester's first objection to the city's failure to respond in writing, and within three business days, to Mr. Sisk's December 2 request and to the associated delays in the production of the records sought. It is undisputed that the city did not comply with KRS 61.880(1) until December 18. On that date, the city notified Mr. Sisk that it could not immediately provide the requested records owing to the relocation of its offices and the unavailability of the internet and the GPS tracking program. The city did not, however, explain why it was unable to respond in writing to Mr. Sisk's request, or produce the records, in the two weeks that preceded its December 18 letter. While we understand that the logistics of office relocation require more than a few days, we find that its failure to issue a written response, even a handwritten response, constituted a violation of KRS 61.880(1). As for the allegation of undue delay in the production of responsive records, we find that the city's December 18 written explanation for the delays in production of the records, while sufficient for KRS 61.872(5) purposes during the period of time that the office relocation was actually underway, does not justify the twenty-five day delay in its entirety. Accordingly, we also find that the city failed to afford Mr. Sisk timely access to the records identified in his request without a plausible explanation.
We affirm the city's disposition of Mr. Sisk's request for "all reports able to be printed from the GPS device installed in the City of Mortons Gap police car" and Mr. Rash's request for the "travel detail of the Mortons Gap police car . . . able to be printed from the GPS device installed in" that car. Our review of the record on appeal, and our March 19, 2014, telephone conversation with the software vendor, confirms the city's position that the report function the software supports does not include a rollover feature that links to latitude and longitude. Simply put, the software cannot generate the latitude and longitude coordinates for each stop in a printable report. Mr. Sisk requested, and the city produced, the " report able to be printed " from the GPS tracking software for the specified period. Mr. Rash requested, and the city produced, the "travel detail" as that report is captioned , for the specified period. Given the parameters of their requests, the city fulfilled its obligation to provide copies of the requested records pursuant to KRS 61.872(3)(b), and the Open Records Act did not require more. 5
With respect to the computer information including latitude and longitude information of the relevant police car, the city was not required to allow Mr. Rash access to its computers to inspect the onscreen representational maps of the actual tracks taken by the police vehicle during the specified period to meet the requirements of KRS 61.872(1) , (2), and (3)(a). Our conversation with the software vendor confirms Mr. Rash's belief that an onscreen view of these maps includes a rollover feature for each stop that depicts not only the duration and address of each stop but also the latitude and longitude of each stop. Because this information is not printable in the aggregate in a report, it is "prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency." KRS 62.870(3)(b). The license agreement provided by the GPS software company clearly does not provide for the creation of a public record, with latitude and longitude data, that must be disclosed. Requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028.
It is rarely the case that records maintained electronically cannot be loaded onto a disc for purposes of inspection and/or copying. Thus, agencies are spared debate on the necessity of permitting a requester to inspect their electronic records onsite by affording the requester access to agency computers. The appeal before us presents the rare exception to the general rule. The rollover feature by which Mr. Rash can access latitude and longitude coordinates for each stop is available only by viewing onscreen the representational map of the actual track taken by the city's police vehicle. Thus it is information the disclosure of which is not required by 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.
Distributed to:
James SiskC. A. RashVickie MarshWilliam M. Cox, Jr.
Footnotes
Footnotes
1 All previous communications with Mr. Sisk concerning his requests were verbal.
2 The Franklin Circuit Court expressed its reluctance to condone unfettered public access to an agency's computers, and records stored therein. The court reasoned:
[A]llowing individuals access to the Treasury's computer database for an unlimited amount of time [might in fact be unduly burdensome]. . . . [I]t is easy to see how such requests, if repeatedly made to the Treasury or made by an increasing number of people, could quickly become so burdensome that the Treasury is unable to efficiently perform its job. . . . The same is true with respect to the computer database--would the Treasury be expected to abdicate use of its computers to the public or to spend its annual budget providing more computers, rather than spending its budget . . . [discharging its statutory duties]? These are perhaps the reasons that the Treasury opted to provide . . . [an alternative means of access]. We find that allowing the public to make . . . requests of the Treasury [to access its computer], when the Treasury already has in place a mechanism for providing this information to the public is unduly burdensome on the Treasury.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
4 KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If 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 a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
5 Both Mr. Sisk and Mr. Rash express the belief that the reports produced in response to their requests have been "doctored" and request an investigation by this office. The city emphatically denies this allegation. Pursuant to KRS 61.880(2), our duty is confined to a review of the written request and written denial and the issuance of "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." We must, therefore, decline their request that the Attorney General investigate the allegation that the records were altered before they were disclosed. See 02-ORD-89; 04-ORD-032; 09-ORD-101; 12-ORD-042; 12-ORD-162.