Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Nicholas Georgalis appeals the Kentucky State Board for Professional Engineers and Land Surveyors' response to his April 3, 2016, request for:
[a] list of all Registered Professional Engineers in the Kentucky Board of Examiners' database . . . in text format and comma delimited with the following fields: first name, middle name, last name, suffix name, state, zip, email address status, PE number[.]
The Board issued a timely written response in which it declined to "create a document containing information extracted from individual files . . . meeting [Mr. Georgalis'] selected criteria, and then to supply the requested information in [the] specifically requested format. " In support, the Board cited KRS 61.874 "creat[ing] the right to inspect existing public records that are not otherwise exempt, but [not] requir[ing] that the agency create any record that does not presently exist." The Board reminded Mr. Georgalis that he could create his own record by searching its database "to obtain public information on [its] licensees" but indicated that the database did not include "social security numbers, birthdates, telephone numbers, email addresses, and addresses other than the licensee's address of record on file with the Board." The Board relied on KRS 61.878(1)(a) as the basis for withholding this information.
Mr. Georgalis thereafter appealed, vigorously protesting the Board's reliance on KRS 61.878(1)(a) to withhold email addresses as well as its refusal to create "with little effort . . . the existing roster with an additional field consisting of email addresses." He characterized KRS 61.878(1)(a) as so vague as to "render[] it unenforceable without specific regulations" identifying "what information it considers to be 'of a personal nature' . . . [and] what 'an unwarranted invasion of personal privacy means.'" Forty years of open records analysis suggests otherwise.
An evolving body of legal authority guides the courts, this office, and public agencies in their interpretation and application of the Open Records Act. These authorities address the scope of KRS 61.878(1)(a). They also confirm that a public agency is not legally required to create a new record to satisfy a requester's demands. Thus, in 14-ORD-197, a copy of which is attached, the Attorney General determined that another licensure board, the Kentucky Board of Nursing, properly relied on KRS 61.878(1)(a) in denying a request for "the email list of our Commonwealth's nursing licensees. " See, generally, Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. App. 1994). We cited opinions of the courts construing KRS 61.878(1)(a) and open records decisions of this office applying the court's construction of the exception to private email addresses. We concluded that the substantial privacy interests of the licensees in their email addresses outweighed the public interest since "[t]he private email addresses of licensed nurses have no manifest bearing on how the Board of Nursing performs its public duties." 14-ORD-197, p. 4. We reach the same conclusion here.
Mr. Georgalis also objected to the Board's refusal to create a record that included its licensees' email address. 03-ORD-214 governs our analysis of that issue. In 03-ORD-214 we analyzed the language of KRS 61.874(2)(a) and (b) and KRS 61.874(3). Applying the analysis found in, inter alia , 03-ORD-004 and 01-ORD-158, we concluded that the public agency "was not obligated to compile information to conform to the parameters of [an open records] request, but that it must, alternatively, provide the requester with a copy of its [existing] database after those fields of information for which statutory protection exists are properly masked ." 03-ORD-214, p. 5. A copy of that open records decision is attached, and its reasoning adopted as if set forth in full.
This is the functional equivalent of what the Board did in responding to Mr. Georgalis' request. The Board offered him immediate, and free, access to all nonexempt information he sought through the publicly accessible database found on its website. Although this did not relieve the Board of its statutory duty to afford Mr. Georgalis access to the nonexempt parts of those records in the manner described at KRS 61.872(3)(a) or (b), 1 should he so demand, the Board did not violate the Open Records Act in refusing to create a new record that conformed to the parameters of his request under KRS 61.874(2)(a) and (b) and KRS 61.874(3). Nor did the Board violate the Act in denying him access to its licensees' private email addresses.
Either party may appeal this decision 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.
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