Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Summary : Fayette County Clerk violated the Open Records Act in denying a request for "electronic copies of the recorded document images for Fayette County" from a specified timeframe, in the format in which those records currently exist, simply because the requester had a commercial purpose within the meaning of KRS 61.870(4). The Clerk's reliance on KRS 64.019 was also misplaced.
Open Records Decision
The question presented in this appeal is whether the Fayette County Clerk violated the Open Records Act in denying the September 19, 2017, request of Source Acquisition Coordinator Brandi Galindo-Cherry, Zillow Group ("Zillow"), 1 for "copies of public land record document images for Fayette County for the recording date range of 08/01/2017 thru 08/31/2017." By letter also dated September 19, 2017, Fayette County Clerk Don Blevins advised Ms. Cherry that it was unclear from the request whether she made it for a commercial purpose. 2 Paraphrasing the definition of "commercial purpose" found at KRS 61.870(4)(a), the Clerk asked Ms. Cherry for a certified statement regarding the purpose of her September 19 request on behalf of Zillow in accordance with KRS 61.874(4)(b). 3 The Clerk further explained that if the request was for a commercial purpose, his office "may charge for costs associated with the production of the public record [s]." In the Clerk's view, "the release or sale of document images is prohibited in Kentucky by KRS 64.019." 4
By letter dated January 24, 2018, Zillow provided the certified statement requested. Pursuant to KRS 61.872(1), Source Acquisition Manager Susan Noto asked for "electronic copies of the recorded document images for Fayette County, starting with those from December 1- 29, 2017, in the form in which the records are maintained ." (Emphasis added.) Zillow agreed "not to reproduce the records in the same format as received from Fayette County, and that the records as provided will not be released, shared, resold, or copied." With regard to associated costs, Zillow agreed to pay "reasonable cost-based fees for obtaining copies of the recorded document images, as described under KRS 61.874(4)(b)" and to enter into a contract with Fayette County "formalizing the permitted use of the recorded document images for the stated purpose." Following subsequent communications between the parties, by letter directed to Ms. Noto on March 2, 2018, the Clerk advised that, "[a]t this time, we are not releasing image data for commercial purposes. KRS 61.874 is permissive in nature for the purposes of commercial requests. Further, the release or sale of document images is prohibited in Kentucky by KRS 64.019."
Darren W. Ford, counsel for Zillow, subsequently initiated this appeal by letter dated May 16, 2018, disputing the Clerk's interpretation of KRS 61.874 and 64.019. 5 Mr. Ford argued that nothing in the Act supports the Clerk's position that KRS 61.874 is permissive when applied to commercial requests "absent a specific enactment of the General Assembly." See KRS 61.874(4)(a). Likewise, Mr. Ford observed, "KRS 64.019 merely allows a public agency [county clerk] to determine what personal devices a requester may use to make copies of records if the requesting party wishes to use its own device." Mr. Ford emphasized that KRS 64.019 has no application here given that Zillow asked the Clerk to make the copies. If KRS 64.019 permitted a county clerk to bar a requester, commercial or non-commercial, from obtaining public records, Mr. Ford reasoned, "then KRS 61.872(3)(b) and KRS 61.874(1) . . . would be superfluous when applied to county clerks. " 6
Upon receiving notification of Zillow's appeal from this office, Donald R. Todd, counsel for the Clerk, responded on his behalf. Mr. Todd first explained that "[w]hen a document such as a deed or mortgage is recorded in the office of the [Clerk] , the document is converted into a Tagged Image File Format ("TIFF") format [.]" TIFF utilizes "lossless compression to store high-quality graphics so they can be archived efficiently while still retaining visual quality." Once a document has been recorded and uploaded to the server it is freely available and readily [accessible] to anyone who wishes to obtain copies." In accordance with KRS 61.874 and KRS 64.019, the Clerk's Office "has provided two means of obtaining copies of these records. First, anyone may enter the Clerk's Office, access the records, and make hard copies. In addition, the records are made available in an online database that requesters are free to inspect and may select documents to print." 7
Mr. Todd confirmed the Clerk's denial of the request "for commercial access to image records in the format requested" was based "upon the excessive time and resources that must be expended in order to satisfy Zillow's request in its current form." According to Mr. Todd, the Clerk "properly acted within his discretion" to deny Zillow's request "because nothing in the [Act] requires the Clerk to produce the records in the manner requested by Zillow." 8 Mr. Todd noted that KRS 61.874(2)(b) identifies the standard electronic format as the American Standard Code for Information Interchanges ("ASCII"). However, the Clerk's Office cannot provide ASCII files of the documents requested as "the files are stored as TIFF images and cannot be converted into ASCII -- a format used to represent and display text data." Because the standard ASCII format is not compatible "with the electronic image documents requested, " Mr. Todd stated, "the only other way to produce this information would be in TIFF format. " 9 Mr. Todd emphasized "the volume of Zillow's requests poses unique and challenging burdens" for the Clerk, outlining the four steps necessary to provide the records in TIFF, i.e. , the format in which the records are currently maintained. 10 Mr. Todd also stated that an estimated 23,878 documents were implicated, which "cannot be downloaded in their entirety due to technological restraints," the nature of which Mr. Todd summarized.
The general rule is that "[o]ur analysis does not turn on the purposes for which the request for information is made or the identity of" the requester. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). See 06-ORD-084 (KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records) ; 10-ORD-062. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink at 828. The only exception to this rule is found at KRS 61.874(4)(b).
Shortly after the General Assembly amended the Open Records Act by enacting KRS 61.874(4)( see note 3), this office had occasion to address the intended scope and effect of this provision. "In the most far-reaching amendment to the Act, the General Assembly determined that a public agency must permit inspection and provide copies of nonexempt public records requested for a commercial purpose. " 95-ORD-12, p. 3; 07-ORD-153. Having quoted KRS 61.874(4)(a), in addition to citing the limited exclusions identified at KRS 61.874(4)(b), this office reasoned as follows:
. . . The Public Access to Governmental Databases Act was incorporated into the Open Records Act by the General Assembly in the 1994 legislative session, and the "commercial purpose" exception eliminated. A request for nonexempt public records which are maintained in a hard copy format, or electronically stored, must therefore be honored regardless of whether the requester's purpose is a commercial or noncommercial one. To the extent that our earlier decisions are inconsistent with these amendments, they can no longer be relied upon .
. . . While it is certainly true that the "public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions [and that i]n general, inspection of records may reveal whether the public servants are indeed serving the public . . .," it is the opinion of this office that in amending the Act the legislature intentionally enlarged the scope of the law by recognizing commercial use as a permissible use. [Citation omitted.] In light of the amendment of the law, we reject the notion that commercial use of public records is inconsistent with the spirit of the Act .
95-ORD-12, p. 3 (emphasis added).
Noting that provisions now codified as KRS 61.874(2)(a) and (b) apply with equal force "to nonexempt public records requested for commercial purposes," the Attorney General clarified:
What distinguishes a request made for a commercial purpose is the requirement, which the agency may enforce at its election, that the requester submit a certified statement of purpose and/or enter into a contract permitting use of the records for the stated commercial purpose. Additionally, the agency may impose a reasonable fee for reproduction of the record based on the criteria set forth at KRS 61.874(4)(c)1. and 2., rather than the criteria set forth at KRS 61.874(3) and applicable to the reproduction of records requested for [a] noncommercial purpose. The General Assembly has thus expressly authorized public agencies which furnish copies of public records requested for a commercial purpose to recover both their actual cost, including staff time required to produce the copy, and the cost of the "creation, purchase, or other acquisition of the public record. " KRS 61.874(4)(c)2.
Id. , p. 4. " What the public agency can no longer do is flatly deny a request for electronically stored records on the grounds that the intended use of the records is a commercial one, or otherwise treat electronically stored records any differently than it treats records in a hard copy format ." Id. (Emphasis added.) If the nonexempt records exist in both electronic and hard copy format, as in this case, "and the requester complies with the requirements of KRS 61.874(4), the agency must permit inspection and copying of the records in the format designated by the requester. " Id. 07-ORD-153 (following 95-ORD-12 in rejecting the argument of the Kentucky State Police that use of "may" rather than "shall" in KRS 61.874(4)(b) indicates discretion on the part of a public agency from which records are sought for a commercial purpose) ; 05-ORD-152 (a public agency is not authorized to deny access to records merely because they are requested for a commercial purpose) ; 06-ORD-084. Consistent with the foregoing, this office finds the Clerk violated the Act in denying Zillow's request based on the premise that "KRS 61.874 is permissive in nature for the purposes of commercial requests."
This office also finds the Clerk's reliance on KRS 64.019 was misplaced. In 11-ORD-166, the Attorney General stated that KRS 61.874(1) "does not expressly invest an open records applicant with the right to make his or her own copies using personal imaging equipment," the Attorney General stated, "[n]or, however, does it expressly prohibit this practice." 11-ORD-166, p. 3. "Absent proof that the condition of the records [the requester] wished to reproduce was so poor that the [Whitley County Clerk] risked damage or alteration to the records if she permitted Mr. Bailey to use his handheld scanner or non-flash camera," the Attorney General held "that she subverted the intent of the Act in refusing his request to make his own copies." Id. , p. 1. If such proof existed, necessitating agency reproduction of the records to prevent damage or alteration, the clerk's response "nevertheless constituted a subversion of the intent of the Act based on the imposition of excessive copying fees that were not correlated to the cost factors codified at KRS 61.874(3)." Id. , pp. 1-2.
"The general conditions at the date of the enactment, and the mischief intended by the Legislature to be remedied by it, the reasons for it, its object and purpose are competent to be considered in arriving at the legislative intention of the enactment." Grieb v. Nat'l Bank of Kentucky's Receiver, 68 S.W.2d 21, 23 (1934). During its 2012 Regular Session, the Kentucky General Assembly enacted KRS 64.019, subsection (1) of which expressly authorizes county clerks to restrict "the use of devices including but not limited to scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk. " 11 Subsection (2) of KRS 64.019 authorizes county clerks to "collect a per-page fee, not to exceed fifty cents ($ 0.50) per page, for providing legal size or smaller paper copies of records or documents maintained by the clerk. " Here, the Clerk has not cited any legal authority construing KRS 64.019 in the broad manner it proposed, nor has our independent research located any such authority. Noticeably absent from the plain language of KRS 64.019 is any indication "the release or sale of document images is prohibited in Kentucky by KRS 64.019." 12 Further, Zillow did not ask to make its own copies. Given the "prior and contemporaneous facts and circumstances that throw intelligent light on the intention of the Legislature," the Clerk's expansive interpretation of KRS 64.019 is not legally supportable. Grieb, S.W.2d at 23.
A party aggrieved by this decision may appeal it 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 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 Darren W. Ford, counsel for Zillow, explained on appeal that Zillow "is an online real estate and rental marketplace that provides free access to online property listings, among other services."
2 Pursuant to KRS 61.870(4)(a):
(a) "Commercial purpose" means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
Limited exclusions are identified at KRS 61.870(4)(b), none of which apply here.
3 In relevant part, KRS 61.874(4) provides:
(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes , if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with that agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
(Emphasis added.)
4 KRS 64.019 provides:
5 Mr. Ford clarified that Zillow is not requesting "online access," i.e. , a physical connection to Mr. Blevins' computer system. Accordingly, KRS 61.874(6), pursuant to which, "[o]nline access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency," does not apply here.
6 Pursuant to KRS 61.874(1):
If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
7 With regard to accessing information contained in existing databases of a public agency, see, e.g. , 13-ORD-134 and 18-ORD-078.
8 Counsel advised the Clerk's Office could print hard copies of the 2017 Deeds and Mortgages for the documents requested at a cost of $.50 per page. See KRS 64.019(2)(a). Because Zillow specifically requested "electronic copies of the recorded document images," further discussion of this option is unnecessary.
9 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." KRS 61.874(2)(b). See 09-ORD-197 (record on appeal confirmed existence of a query, filter, or sort capable of extracting the specific information being sought and the agency was therefore required to treat request "as a standard request under KRS 61.874(3)[,]" and fulfill the request in either the minimum standard format, or its native format per KRS 61.874(2)(b)); 95-ORD-12.
10 Mr. Todd described the steps, including the need to "[d]esign, write, and test a computer program that could search for and retrieve the digitized images from the Clerk's system by document type and data range." Inasmuch as the Clerk has already been able to identify the number of responsive images, the remaining steps would consist of downloading the images and copying them to a USB drive. Absent more detailed information regarding why a new program is necessary to provide the images requested in their existing format, it remains unclear why this additional step would be required to honor the request. Because the Clerk did not deny the request for this reason, and Zillow has agreed to pay a reasonable fee based on the statutorily permissible factors, additional discussion of this point is unnecessary. Zillow has not challenged the reasonableness of the fee. See 04-ORD-054, 15-ORD-060, and 17-ORD-157 regarding application of KRS 61.874(c).
11 Created 2012 Ky. Acts ch. 161, sec. 12, effective April 23, 2012.
12 [I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002)(citation omitted).