Request By:
Noah Friend
Matthew Snyder
Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of the Treasury violated the Open Records Act in denying requests for information in specified formats from its Unclaimed Property Fund. 1 For the reasons set forth below, we find that the Department of the Treasury did not violate the Act.
On February 27, 2017, 2 Matthew Snyder, via email to the Kentucky Department of Treasury, requested:
Under the Kentucky Open Records Act § 61.872 et seq., I am requesting an opportunity to obtain copies of public records that contain information regarding the exact dollar amounts owed to corporate entities, government agencies or other organizations that are reported to have unclaimed funds being held by the Kentucky State Treasurer/Unclaimed Property Division, along with business/owner name, last known address, date of reporting by holder, original accountholder information and any other pertinent information that would assist in the distribution of unclaimed funds to their rightful owners. Please note this request excludes information regarding individual, natural persons pursuant to Hines v. Commonwealth of Kentucky, Department of Treasury.
Noah Friend, General Counsel, Department of the Treasury, responded to Mr. Snyder by email on March 2, 2017, denying the request due to privacy concerns under KRS 61.878(1)(a) and "inherent limitations in [Treasury's] system." Mr. Friend explained the denial more fully:
Our system relies upon data provided by the account holders, which often includes Social Security numbers or FEINs. Our system populates the data based on the information provided by the holders themselves, and we are not able to maintain separate databases for individual and business accounts. Our search parameters allow us to attempt to limit search results to businesses by using FEINs, but the results inevitably include a large number of individuals' Social Security numbers. Pursuant to your request, we ran a search to determine what would be returned. The search returned over 300,000 results. A random sampling of the results concluded that there were a great number of individual accounts, as opposed to business accounts, included in the results. Therefore, turning over this information creates an undue risk of creating an unwarranted invasion of personal privacy. As an aside, the results were also incomplete, insofar as any corporate/business accounts that were not properly coded by the holders with an FEIN were not included.
As the records covered by your request are excepted by KRS 61.878, and we cannot assure that individual privacy can be adequately protected, they cannot be disclosed.
In response to this denial, Mr. Snyder then proposed another query:
Please consider the following. Generate a list by dollar amount from high to low and then simply compile a list of the first 50 corporations starting with the largest amount owed and working down the list until you reach 50. I assume that the accounting system should be able to easily order by dollar amount, an excel spreadsheet has this function. Once the list is generated, just redact individual accounts that appear on the final list.
Mr. Friend responded with several reasons as to why this request could not be met. He stated that Treasury's system "allows us to do some very general manipulation of data, though it does not adequately screen individual accounts from being included in corporate search results." Mr. Friend relied upon past open records decisions 3 for the premise that the Open Records Act does not require a public agency to create lists or data compilations that are not currently in existence and would have to be created to comply with the request. He added that Mr. Snyder can purchase the publicly-available lists, 4 which contain the names and addresses of accounts with a value over $ 500.00, and that corporate accounts could then be located within that list.
In order to better understand the facts and issues involved in this appeal, we submitted a set of questions and requests for records to Treasury pursuant to the authority granted this office under KRS 61.880(2)(c). Treasury complied with those requests.
In 02-ORD-48, this office addressed a similar request for information regarding unclaimed property. The requester in that appeal, Mindy Hines, asked for "A list of the ten largest unclaimed accounts (that remain unclaimed as of the date of the request) for each of the years 1990-2000; which includes the dollar amount and the property description." In response to that request, Treasury stated that the requested list "is not a document maintained by the Treasury in paper form and further the database from which the information might be derived is not set up to perform such a search." Treasury explained that the list "would have to be created by hand by an employee of the Treasury who, after extensively reviewing the databases for accounts held in each year would put together the lists requested." Relying on 97-ORD-56, 96-ORD-139, and 95-ORD-48, Treasury asserted that a public agency is not required to create a record to satisfy a particular open records request. Our decision in 02-ORD-48 agreed with Treasury's position, stating in relevant part:
The Treasury has no list corresponding to Ms. Hines' request. To require the Treasury to create a list to conform to her request would be tantamount to reading an additional duty into the Open Records Act which the Act does not mandate.
Nor do we believe that the Treasury is required to permit Ms. Hines unrestricted access to existing records to "secure the particular records" she seeks. While it is certainly true that a requester "should be afforded the opportunity to expend his own time and effort in digging out information" that has not been compiled as requested, this opportunity cannot be extended to a requester if the records containing the information are "excluded from public inspection under KRS 61.878." OAG 86-51, p. 4, 5. Ms. Hines acknowledges this fact in her reference to OAG 86-51 when she states that "the denial is improper to the extent that it states or implies that the requesting party will not be afforded the opportunity of examining otherwise nonexempt material to secure the particular records and documents with which he is concerned." The Kentucky Court of Appeals has determined that disclosure of information contained in the Treasury's unclaimed property database, and in particular information regarding the value of each individual unit of unclaimed property, would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a), and therefore Ms. Hines cannot be afforded unrestricted access to the database for the purpose of extracting desired information. Hines v. Department of Treasury at 875.
02-ORD-48, p. 4-5.
Both of Mr. Snyder's requests are for information in a form which Treasury does not maintain, and for which it has no existing method of extraction that would provide all the information requested. The Open Records Act does not require Treasury to create a list to conform to Mr. Snyder's requests as that "would be tantamount to reading an additional duty into the Open Records Act which the Act does not mandate." 02-ORD-48, p. 4. Past open records decisions of this office recognized that public agencies are required to honor "a request for information contained in a database . . . [if] there is a pre-existing query, filter, or sort capable of extracting the specific information," and, if no query, filter, or sort exists, to "make available the entire database. " 09-ORD-197; 03-ORD-214 (requiring release of Kentucky Tobacco Settlement Trust Corporation Phase II payments database) , see also, 04-ORD-117. In regards to Treasury's unclaimed properties database, we determined in 02-ORD-48, relying on Hines v. Com., Dep't of Treasury, 41 S.W.3d 872, (Ky. Ct. App. 2001), that the Act does not require Treasury to allow a requester "unrestricted access to the database for the purpose of extracting desired information." Such access would include highly personal information 5 and so constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
The Court of Appeals in Hines also determined that Treasury fulfills its duty to inform the public of the execution of its statutory functions by "publication of the names of owners of unclaimed property, as well as information regarding the total values of the property which it holds and disburses each year." Hines , at 875.
Pursuant to the holdings in Hines , and 02-ORD-48, and under the facts in this appeal, we find no violation of the Open Records Act in Treasury's denials of Mr. Snyder's requests for information.
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.
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