Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Governor violated the Open Records Act in denying the September 18, 2017, request of William E. Sharp, Legal Director, American Civil Liberties Union of Kentucky ("ACLU"), for copies of "all keywords used by the Governor's Office to filter comments from appearing on Governor Matt Bevin's official Facebook account (GovMattBevin)." Mr. Sharp advised that receipt of the copies in either hard copy format or electronic format was acceptable. See KRS 61.872(3) and 61.874. In a timely response, Deputy General Counsel Matthew F. Kuhn denied Mr. Sharp's request on behalf of the Governor's Office. Mr. Kuhn first asserted that Mr. Sharp had not requested a "public record" within the meaning of KRS 61.870(2). Instead, Mr. Kuhn observed, "you have requested information -- the keyword filters used for the Governor's Facebook account. It is well-established that '[r]equests 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.' 14-ORD-124." The Governor's Office further maintained that a public agency is not required to compile a list or create a record in order to satisfy a request, citing 14-ORD-109. Existing legal authority validates both assertions though neither is dispositive on the facts presented. Mr. Kuhn advised Mr. Sharp, "The only way for you to review the keyword filters would be perusing the Governor's Facebook account or for us to print screenshots. The Open Records Act does not require either of these steps." The Governor's Office cited 14-ORD-124 in support of its position. 1 Based upon the following, this office finds the agency's position unpersuasive.
On appeal, Mr. Sharp noted that the Governor, through counsel, had admitted "that his office employs keywords that have been selected and entered into Facebook's filtering feature by one or more members of his own staff. " 2 (Original emphasis.) "[U]nlike mere information for which no existing public record exists," Mr. Sharp argued, "the Governor's Office has, in fact, created a public record by entering these keywords into Facebook's keyword filtering feature." See KRS 61.870(2)(defining "public record" to include " all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency" )(emphasis added). Mr. Sharp maintained that 14-ORD-124 does not compel a different conclusion; he further noted "electronically stored data, such as is the case here, may constitute a public record subject to disclosure under the Act[.]" (Citations omitted.)
Early on, this office clarified that "[t]he 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. For this reason, the Attorney General has consistently held that requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. In addressing this question, the Attorney General has long recognized that "obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying." 04-ORD-080, p. 13 (citation omitted). "The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information." Id. See 16-ORD-139. 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. A review of the statutory language upon which these decisions are premised, validates this position. See KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added). In other words, the Governor's Office is not statutorily required to honor a request which is properly characterized as a request for information. See 17-ORD-015. Whether the analysis ends there depends on the facts presented; it does not in this context.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5; 14-ORD-073. (original emphasis). In short, "public agencies are normally required, in lieu of honoring requests for information, to make any non-exempt public records that may contain the information being sought available[.]" 14-ORD-073, pp. 5-6 (emphasis added); 16-ORD-010 (following OAG 89-81, OAG 90-19, and 97-ORD-6 in holding that agency's position was "partially correct, insofar as the law does not require the creation of records/lists that are not already in existence, but falls short in failing to recognize the duty to afford [the requester] access to records" containing the requested information) ; compare 14-ORD-124 (agency was not required to grant requester access to its computers for the purpose of complying with KRS 61.872(1),(2), and (3)(a)). Mr. Sharp indicated that providing any existing record containing the information requested in hard copy format would suffice, and our independent research confirmed that a copy of the web page containing the requested keywords can easily be printed, regardless of whether Facebook has a separate mechanism for printing the keywords. Therefore, additional discussion of whether onsite inspection would otherwise be required is unnecessary.
When viewed in light of the foregoing principles and the broad statutory definition of "public record" found at KRS 61.870(2), as well as the legislative declaration of policy codified at KRS 61.871, the primary argument made by the Governor's Office must fail on the facts presented. Facebook is a social media website (https://www.facebook.com/)) on which a "user," i.e. , "member," such as the Governor's Office, creates a "profile," and maintains a "profile page." See https://www.britannica.com/topic/Facebook. Inasmuch as Facebook is awebsite, or "a collection of pages," it follows that a single page on that website, including the settings page, "is an individual HTML document." 3 See https://techterms.com/definition/webpage. It is common knowledge that anyweb page displayed in a web browser can be printed from the browser. Accordingly, complying with Mr. Sharp's request would only require the Governor's Office to print a copy of the settings page on which the "Page Moderation" dialog box containing the requested keywords is located "in the format in which the agency has it." Printing a hard copy of an existing public record, such as e-mail or, in this case, a page on a social media site, cannot be properly equated to creating a record. 4 See 12-ORD-028 (if agency maintained "a query, filter, or sort capable of extracting" the requested information from its existing database, it was required to provide the report "at a reasonable fee not to exceed its actual reproduction costs, not including staff time and programming costs," even if such a report did not currently exist or was not routinely generated); 14-ORD-124 (agency discharged its duty in providing the requester with the "report able to be printed" from the GPS tracking software and the "travel detail" as that report is captioned, for the specified period).
The Governor's Office argued, in the alternative, that "keywords" are not "software" within the meaning of KRS 61.870(3). Whether the page on which the requested keywords appear falls within the definition of "software" codified at KRS 61.870(3)(excludes any "mechanism for controlling the security or restricting access to public records in the public agency's computer system") is not determinative given that "software" is only a single format among those listed at KRS 61.870(2), pursuant to which "public record" is also defined to include all "books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics , which are prepared, owned, used, in the possession of or retained by a public agency ." Because a record containing the requested keywords not only exists "in the possession of" the Governor's Office, but is also "used" by that agency in the regular course of business, the Governor's Office must provide Mr. Sharp with a copy upon receipt of payment, in accordance with KRS 61.874, regardless of whether it otherwise falls within the parameters of KRS 61.870(2). Compare 14-ORD-124 (see note 1). This office makes no finding relative to KRS 61.870(3) . Inasmuch as the remainder of the information contained on the settings page is not responsive to Mr. Sharp's request, however, the Governor's Office may redact that information from the record per KRS 61.878(4).
The third and final argument by the Governor's Office was that complying with Mr. Sharp's request would "place an 'unreasonable burden' on the Governor's [O]ffice in violation of KRS 61.872(6), and in light of your repeated requests for keyword filters -- first in litigation, now here -- we reasonably believe that you are trying 'to disrupt other essential functions' of the Governor's [O]ffice, also in violation of KRS 61.872(6)." The Governor's Office maintained that the Act "does not require the Governor to educate commenters on how to bypass his Facebook filter. " 5 Finally, the Governor's Office asserted that disclosure of the keywords would require the agency to "review each Facebook comment individually. That would be a massive undertaking." None of these reasons, individually or collectively, constitute clear and convincing evidence to justify the denial." 6
On appeal, Mr. Kuhn asserted that the keyword filter "serves a crucial function: it automatically screens profane, obscene, or clearly off-topic comments, thereby saving the Governor's Office significant time -- literally multiple hours each day." Mr. Kuhn advised that if the keyword filter is no longer effective, "as would be true if the keywords were publicly disclosed, the Governor's Facebook page would need to be constantly monitored at all times of the day and night, lest it be overrun with profane, obscene, or clearly off-topic comments." The Governor's Office reiterated that in requesting the keywords "multiple times -- first in litigation, now here" Mr. Sharp has implicated the prohibition against "disrupt [ing] other essential functions of the public agency. " In support of its position, the Governor's Office provided the October 2, 2017, affidavit of Communications Director Amanda Stamper, which restated the claims above. In addition, Ms. Stamper advised that without effective keyword filters, constant monitoring of the Governor's Facebook account would be necessary "to avoid being overrun with profane, obscene, or clearly off-topic comments" and that would necessitate hiring "additional full-time staff" or diverting "meaningful attention from other essential functions." 7 In sum, the Governor's Office relied on the "volume of activity on the Governor's Facebook page" to establish that disclosure would be unreasonably burdensome. 8
In light of Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), this office is first compelled to clarify that Mr. Sharp's request "should be evaluated independently of whether or not [he] is a party or potential party to litigation." See 12-ORD-152. Parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests; however, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Act in a line of decisions dating back to 1982. Although litigation exists in the background of a request, a "requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2; OAG 89-53; OAG 89-65. As the Court in Stewart observed, KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, [emphasis added] but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." Id. at 863. See Dep't of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart ); 11-ORD-108. Based on this well-established authority, Mr. Sharp's request must be evaluated independently from the ongoing litigation as he "stands in relationship to" the Governor's Office under the Act "as any other person." The separate but related judicial proceeding (First Amendment claim) does not constitute evidence of an intent to disrupt the essential functions of the Governor's Office and certainly does not rise to the level of clear and convincing evidence. See OAG 89-79 (agency resisted complying due to a concern that the records might be used in a subsequent legal action, contending that the number, detail, and nature of the requests suggested an intent to disrupt its essential functions and the Attorney General expressly rejected that part of the argument that was postulated on the use for which the records were requested).
To prevent agencies from exploiting KRS 61.872(6) as a means of circumventing the requirements of the Act, however, a refusal made on that basis must be sustained by clear and convincing evidence, prompting this office to observe that every request "causes some inconvenience to the staff of the public agency. . . . [Nevertheless, we] believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. " 00-ORD-72, p. 3 (citation omitted). However, public employees "are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." Id., p. 3, citing OAG 76-375, p. 4. This office "must weigh two competing interests: that of the public in securing access to agency records, and that of the agency in effectively executing its public function." Id., citing 96-ORD-155, pp. 3-4; 11-ORD-173. The Attorney General has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 05-ORD-152, p. 5; 10-ORD-003.
The Kentucky Supreme Court validated the longstanding position of this office in Commonwealth v. Chestnut, 250 S.W.3d 655, 664-665(Ky. 2008), recognizing that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6) since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Further, the "obvious fact that complying with an open records request will consume both time and manpower," the Court observed, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Nor does the "winnowing process" required of the agency "to separate excepted materials and make nonexcepted materials available" per KRS 61.878(4) "rise to the level of an unreasonable burden under KRS 61.872(6) because that is an existing statutory obligation. Id. at 664; 11-ORD-173.
The Governor's Office has not cited, nor is the Attorney General aware of, any legal authority requiring a public agency to maintain a social media account. Even assuming, for the sake of argument, that creating and maintaining a Facebook page has become so commonplace as to be deemed a practical necessity for a public agency, the voluntary use of a keyword filter, in addition to Facebook's existing "Profanity filter, " while helpful, is entirely a matter of discretion. Likewise, the content and frequency of the posts made by the agency is optional as compared to statutorily required functions of the agency. This appeal differs in that critical respect from those in which a public agency's denial based on KRS 61.872(6) was affirmed because the agency would have been required to completely overhaul an existing security system or policies that enabled the agency to effectively or safely perform its fundamental duties under the law. 99-ORD-51 (holding that Revenue Cabinet's reliance on KRS 61.872(6) to deny access to Kentucky Revenue Protest and Appeals Guidelines was misplaced); 99-ORD-131 (holding that police department improperly relied on KRS 61.872(6) in denying access to detective's work schedule); compare 95-ORD-121 (affirming jail's denial of inmate request for policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); 97-ORD-129 (affirming drug task force's denial of request for that portion of its manual dealing with the use of confidential informants); 99-ORD-83 (affirming police department's denial of request for its Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city). For all of the foregoing reasons, the Governor's Office violated the Open Records Act in denying Mr. Sharp's request.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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