Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in the disposition of Marcus Green's August 5, 2016, request for records relating to the KSP's acquisition and auction of weapons. Mr. Green, a reporter for WDRB, requested:
All documents related to the acquisition to weapons by Kentucky State Police for sale at auction from Jan. 1, 2011 until the date this request is fulfilled. This request includes, but is not limited to, documents showing the amount paid for, and/or the purchaser of, each weapon. We would prefer this information in Excel Spreadsheet, should it exist.
Mr. Green's letter included other requests, but only the request for records in Excel format is at issue in this appeal. On August 15, 2016, Emily Perkins, Official Custodian of Records, Legal Services Branch, responded to Mr. Green with a copy of the requested records, however the records were provided on a CD with the auction results in PDF 1 format, rather than in Excel 2 spreadsheet format as requested by Mr. Green.
Mr. Green appeals this difference in format by stating that "KSP's decision to provide a database kept in Excel or a machine-readable format as a PDF violates the Kentucky Open Records Act. " As support for his proposition that KSP committed a violation of the Open Records Act, Mr. Green cites to KRS 61.874(2)(a):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
On appeal, we compare Mr. Green's actual request, which was: "We would prefer this information in Excel Spreadsheet, should it exist...," to the wording of the statute, KRS 61.874(2)(a), which allows a requester to designate that the records be in "either standard electronic or standard hard copy format. " Mr. Green's request was for Excel files which are neither standard electronic format nor standard hard copy format. Standard electronic format and standard hard copy format are defined at KRS 61.874(2)(b):
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request. (Emphasis added).
By requesting the records in Excel format, Mr. Green has submitted a nonstandardized request. In the case of a nonstandardized request, KRS 61.874(3) provides direction on how an agency may respond. That statute, in relevant part, states: "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." (Emphasis added). This statute provides the agency the discretion as to whether, or not, to provide the records in nonstandardized format when the request is for a format other than the standardized formats.
In this instance, KSP exercised its discretion and chose not to provide the records in the nonstandardized format requested. In 01-ORD-158, this office examined KRS 61.874(3) in regards to a nonstandardized request and stated "[ al]though 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..." (Emphasis added). In 96-ORD-251, a requester asked the Board of Hairdressers and Cosmetologists for records to be produced "by license number" but the Board did not keep their records by license number and instead offered to produce the records in alphabetical order by name. In affirming the Board's position, this office held that "[a]lthough the Board may, in its discretion, 'tailor the format to meet the request of an individual or a group,' it is not obligated to do so . KRS 61.874(3)." (Emphasis added). By supplying the records in PDF format, KSP has provided, as requested by Mr. Green, "documents showing the amount paid for, and/or the purchaser of, each weapon. " We find that KSP did not violate the Open Records in responding to this request for records in a nonstandardized format.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 PDF files are computer documents which look exactly like the original documents, regardless of which software or operating system was used to create them. PDF is an abbreviation for 'Portable Document Format.' Retrieved October 6, 2016, from: http://www.collinsdictionary.com/dictionary/english/pdf
2 Excel. Software developed and manufactured by Microsoft Corporation that allows users to organize, format, and calculate data with formulas using a spreadsheet system broken up by rows and columns. Retrieved October 6, 2016 from: http://www.businessdictionary.com/definition/Microsoft-Excel.html