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 Kentucky Energy and Environment Cabinet ("Cabinet") violated the Open Records Act in denying Mark Olalde's January 2, 2018, request for "information relating to bonds and other financial instruments for reclamation of coal mines in the state." Mr. Olalde advised that on October 17, 2017, he requested and received "information contained in the attached Excel spreadsheet, " including the "amount of money held in each bond, letter of credit, cash deposit, bond pool, and all other financial instruments for reclamation guarantees for coal mines." The information that Mr. Olalde received "was broken down per mining permit. However, several hundred permits are guaranteed by multiple bonds or other financial instruments." Accordingly, Mr. Olalde asked that the information he received "be further broken down by amount per individual bond." Mr. Olalde further indicated that "[i]f it is possible to simply add onto my initial request, I have attached the spreadsheet you initially sent with columns available in the third sheet for you to input the amounts of the individual bonds[.]" If the "bonding databases" are "living databases in which the data is constantly updated," Mr. Olalde observed, "and you need to entirely re-do my request, I ask that you send me a new database (similar to the one you already sent) with" ten different fields of data "per each bond or other financial guarantee for each permitted coal mine in the state, regardless of whether the site is active or inactive[.]"
Emily Perkins, Records Management Branch, denied Mr. Olalde's request, advising, "there is no document in existence containing the data you requested." Citing a line of prior decisions by the Office of the Attorney General ("OAG"), Ms. Perkins advised that a "a request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have." In addition, she asserted that a public agency is not required to conduct research or compile information to satisfy a request, again relying upon prior decisions by the OAG. Rather, the OAG has long recognized that a public agency is not required to compile a list if a responsive list does not already exist. By letter dated March 6, 2018, Mr. Olalde challenged this denial of his request. "Because the data I requested clearly resides in state databases, " Mr. Olalde asserted, the Cabinet should provide "the most recent data with the slight increase in detail that I specified in my records request."
Upon receiving notification of Mr. Olalde's appeal from this office, Staff Attorney Sarah Michael supplemented the Cabinet's denial as follows:
The information sought by Mr. Olalde can only be compiled into the kind of spreadsheet which is the subject of his request if an employee of the Cabinet creates that spreadsheet from the data in our database. The Cabinet has no obligation to analyze and compile that information. City of Fort Thomas v. [Cincinnati Enquirer], 406 S.W.3d 842, 856 (Ky. 2013), citing Jimenez v. Executive Office for United States Attorneys, 764 F.Supp.2d 174, 182 (D.D.C. 2011), states that a public agency "is not obligated to respond to questions, requests for research, or request[s] to authenticate or verify the contents of a particular document." While the Cabinet has no obligation to "carry out research or compile information to conform to a given request" (OAG 89-43, p. 3), it nonetheless chose to compile information for Mr. Olalde last October. Mr. Olalde has offered no authority to support an argument that choosing to go above and beyond last October obligates the Cabinet to provide further data analysis pursuant to more burdensome requests.
The Cabinet also reiterated its original arguments but acknowledged that a public agency "is required to 'make available for inspection' any 'records that might yield the information sought.' 97-ORD-6, p. 5." Ms. Michael stated that Mr. Olalde "could request bond and permit documents for the mine permits about which he wishes to know, and compile the information himself." This office affirms the Cabinet's disposition of Mr. Olalde's request pursuant to KRS 61.874(3) and prior decisions interpreting that provision.
"The 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; 17-ORD-015. 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; 11-ORD-026. Likewise, "a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4 (citation omitted). See OAG 81-333; 93-ORD-50; 11-ORD-026; 13-ORD-202. The Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4 (quoting 96-ORD-251); 13-ORD-134. 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). Public agencies are not required under the Act to gather and supply information independent of that which is set forth in public records. Id. See 11-ORD-026; 17-ORD-276.
This office has also consistently recognized that regardless of the format requested, the analysis does not end there. 13-ORD-134, pp. 3-4; 13-ORD-202. 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 provisions upon which these decisions are premised, including KRS 61.871, KRS 61.872(1), and KRS 61.872(2), validates our position. See OAG 90-100 (holding that a requester does not have a right to require that a list be made but if a list exists and is not otherwise confidential by law, he may inspect and obtain a copy of the list); OAG 92-99 (holding that agency did not err in advising requester that "the information she requested does not exist in list form, that it cannot make available that which it does not have, and that it is not required to create a document to satisfy a request"); 02-ORD-48; 11-ORD-026.
Recognizing as a threshold issue that a "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)," the Attorney General has addressed the issue of public access to governmental databases a number of times over the years. See 02-ORD-148 (Kentucky Fair and Exposition Center employee database) ; 05-ORD-129; 10-ORD-061; 11-ORD-176; 12-ORD-028; 13-ORD-134. The majority of these decisions involved requests for specific fields of information maintained in the subject database, such as Mr. Olalde's request, as opposed to requests for the entire database, and the public agency's discretion per KRS 61.874(3) to decline such a request in the absence of a pre-existing query, filter, or sort capable of extracting the specific information sought. See 06-ORD-148; 12-ORD-028. In 03-ORD-214, the Attorney General was asked to determine whether the Kentucky Tobacco Settlement Trust Corporation had properly denied a request for the database containing the Phase II payments from 2002, identifying the quantities used in calculating the payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of that data. Although the Corporation erred in denying the request entirely, this office concluded that the Corporation satisfied its duty under the Open Records Act by providing the records in standard format as defined at KRS 61.874(2)(b). The Corporation was not obligated to tailor the format to conform to the parameters of the subject request. Relying upon 03-ORD-004 (disclosure of existing database, with appropriate redactions to protect identifying information relating to individual recipients of Medicaid, was not unreasonably burdensome under KRS 61.872(6)), this office held that the Corporation discharged its duty under the Act by making the entire database available in the format in which it was regularly maintained. 03-ORD-214, p. 9 (citations omitted); 13-ORD-134; compare 11-ORD-085.
KRS 61.874(3) speaks directly to this issue. In relevant part, KRS 61.874(3) provides that "[i]f 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 group , the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred." (Emphasis added.) In construing this provision, the Attorney General has consistently observed that "[a]lthough 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 and in so doing, incur 'actual costs' in addition to media and mechanical processing costs . . . that could properly be passed along to the requester. " 01-ORD-158, p. 4 (emphasis added)(agency was not required to comply with request for compilation of statistical data not already maintained); compare 05-ORD-116 (given its "duty to make government more accessible by providing access to public records at a nonprohibitive charge, and its admission that a query currently exists that is capable of extracting [the requested] information from its database . . . the Personnel Cabinet subverted the intent of the [Act] by attempting to impose [a programming charge]"). This position mirrors the holdings in a line of decisions dating back to 95-ORD-82, recognizing that is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request (and to recoup both staff and actual costs in the event that it affirmatively exercises that discretion). 99-ORD-68; 02-ORD-148; 05-ORD-129; 06-ORD-148; 07-ORD-162; 09-ORD-197; 11-ORD-085.
Because the language of KRS 61.874(3) is discretionary, the Cabinet did not violate the Act in refusing "to tailor the format to meet the request of an individual," Mr. Olalde, and satisfy the parameters of his request as framed, i.e. , create another query to "further [break] down by amount per individual bond" the information that was already provided or create another query to provide ten additional items of information or fields of data. However, as noted, the analysis does not end there. "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. See 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) ; 17-ORD-268; compare 14-ORD-124. The Cabinet has acknowledged this obligation.
Similarly, in 02-ORD-089 the Attorney General reaffirmed the principle that a public agency can properly decline to tailor its database for the purpose of satisfying a request for information in a specially tailored format by virtue of KRS 61.874(3). However, this office also recognized that "[t]he agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." 02-ORD-089, p. 12, n. 5. See 05-ORD-129 (database maintained by the agency contained information responsive to request and redacting information contained in a database is not the equivalent of producing a record in a nonstandardized/ specially tailored format) ; 12-ORD-168 (in lieu of creating a query to extract requested information the agency could release the entire database in a format "that preserves relational context and content"); 11-ORD-176. Despite having no statutory obligation to perform such a function, the Cabinet affirmatively exercised its discretion and created a query that enabled an employee to locate tables of information responsive to Mr. Olalde's October 2017 request and compiled that information to provide a spreadsheet for him. Mr. Olalde has not cited any legal authority that would require the Cabinet to exceed the statutory requirements again for the sole purpose of satisfying his January 2018 request nor does any provision of the Open Records Act require that. Alternatively, the Cabinet may either provide Mr. Olalde with access to its existing database (no statutory basis for withholding it has been cited) 1 in the format in which it is regularly maintained, or provide him with an opportunity to inspect any existing records that contain the additional information being sought, i.e. , "bond and permit documents for the mine permits," and compile the information for himself. See 16-ORD-139.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 Compare 11-ORD-176.