Opinion
Opinion By: Andy BeshearAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether Covington Independent Public Schools ("CIPS") violated the Open Records Act in denying the October 4, 2018, request of Donna House, Executive Director of the Kentucky Association of Professional Educators ("KAPE") for "the global email contact list in which I may contact employees of [CIPS]." 1 By letter dated October 29, 2018, Bryce C. Rhoades, counsel for CIPS, responded on its behalf to Ms. House's request. Mr. Rhoades first stated, "The document you have requested does not currently exist[.]" Citing a line of prior decisions by the Office of the Attorney General, Mr. Rhoades asserted that a public agency such as CIPS is not obligated to compile a list or create a record in order to satisfy a request. "To the extent such a document could be created," Mr. Rhoades further stated, "email addresses are generally considered to be exempt from public disclosure" pursuant to KRS 61.878(1)(a). Citing Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825, 829 (Ky. App. 1994), he argued that "general information, such as email addresses, 'would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny.'" Even if the request can be read as being for work e-mail addresses, Mr. Rhoades indicated that CIPS would have to deny it pursuant to Policy Nos. 3.1323 and 03.2323, which "specifically prohibit [CIPS] from releasing to members of the public business e-mail addresses of employees for political, commercial, or other types of solicitations. "
In her November 13, 2018, appeal, Ms. House emphasized that she is not requesting any private information of any public employees, "but rather the public email address of school employees so that I may disseminate information to them, and communicate to them information that is pertaining to their employment interests." Ms. House further stated that such a list "does exist electronically within all school districts in Kentucky for administrators to address large groups of their employees. The IT Director within the district should be able to quickly print this electronic file that administrators use."
Upon receiving notification of Ms. House's appeal, Mr. Rhoades supplemented his response on behalf of CIPS. Mr. Rhoades first reiterated his client's position that no such list currently exists and Ms. House's request is therefore a request for information. According to Mr. Rhoades, "converting an electronic database into a printed global email list involves creating a record that does not currently exist ." In the view of CIPS, Ms. House is requesting that it "compile specific information to conform to the parameters of her request. Generating a global email address list would constitute compiling information to create a new record." 2 Accordingly, CIPS maintained that it does not possess a document responsive to her request and is not obligated to create and produce it.
CIPS reiterated, "Disclosure of the information requested by Ms. House is specifically prohibited by CIPS Policy 03.1323 . . . and CIPS Policy 03.2323 . . . which prohibit the release of teachers' names and classified names, respectively, for the purpose of solicitation. " 3 Mr. Rhoades emphasized that Ms. House requested information in her capacity as Executive Director of KAPE. 4 Citing excerpts from KAPE's website, he stated that KAPE is a professional organization, which, by its own admission, is not a union. KAPE seeks to provide information to CIPS employees and solicit employees to become members of its organization. 5 Such a solicitation, he argued, is a direct violation of CIPS policy. Finally, Mr. Rhoades indicated, "although the records Ms. House requested do not exist, she can nevertheless compile the information she requested through the staff directory on CIPS' website. CIPS is not required to perform this research task for her." This position is accurate, but not dispositive.
Recently, this office flatly rejected the position that "the global email contact list" of a public school district is protected from public disclosure under KRS 61.878(1)(a). 18-ORD-223 (In re: Donna House/McCracken County Public Schools, Nov. 27, 2018)(copy enclosed). Here, as in that appeal, the school district's position, that agency-issued e-mail addresses are indistinguishable from private ones "in that they consist of information that does 'little to further the citizens' right to know what their government is doing' . . ., places the cart before the horse, inasmuch as it concerns the comparative weighing of the public interest in disclosure against a recognized personal privacy interest." 18-ORD-223, p. 3. Accordingly, this office again finds "no information of a 'personal nature' in a list of agency-issued e-mail addresses." Id. , p. 4. The availability of the requested information on its public website further undermines the argument by CIPS. Because "no personal privacy interest exists to be weighed against the public interest in disclosure, [CIPS] violated the Open Records Act by denying access to its list of public e-mail addresses" on the basis of KRS 61.878(1)(a). Compare 16-ORD-139 (Kentucky State Board for Professional Engineers and Land Surveyors properly invoked KRS 61.878(1)(a) in denying request for private e-mail addresses of its licensees).
Equally unpersuasive is CIPS' argument that its policies are controlling over provisions of the Open Records Act. "To the extent those policies and procedures do not mirror the statutory requirements found at KRS 61.870 through 61.884, they are invalid and have no force and effect." 07-ORD-257, p. 7. Thus, in 94-ORD-143 this office recognized "that a public agency cannot, by ordinance or any other legislative device, regulate access to public records in a manner which conflicts with the Open Records Act. " See OAG 82-435; OAG 82-518; 92-ORD-1136. In OAG 82-435, the Attorney General observed:
In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
94-ORD-143, p. 2. See OAG 82-518, p. 1 ("the Mayor does not have the authority to countermand the requirements of the Open Records Law" ); 09-ORD-170 (reaffirming line of authority recognizing that General Assembly preempted "the field of the inspection of public records" by enacting the Open Records Act, in holding that KRS Chapter 11A did not apply to local joint board of ethics, "nor does the cited ordinance which, in relevant part, mirrors it, prevail" over the Act); 99-ORD-219; 17-ORD-045; 18-ORD-137.
In summary, "[A]n administrative agency cannot by its own rules and regulations, amend, alter, enlarge, or limit the terms of legislative enactment. " Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). See 12-ORD-164 (agency's policy mandating redaction of specified information was "at odds with the open records statute" and therefore legally unsupportable); 18-ORD-001. Because "[a]ny local policy or procedure that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act[,]" insofar as the CPIS policies are contrary to KRS 61.878(1)(a), and relevant case law applying it, CIPS improperly relied upon these policies in denying Ms. House's request. 17-ORD-045, p. 3; 15-ORD-159.
As to whether complying with Ms. House's request would require CIPS to "create a record," this office has recognized that "[p]rinting a hard copy of an existing public record, such as e-mail or, . . . a page on a social media site, [or, in this case, a global e-mail address list,] cannot be properly equated to creating a record." 6 17-ORD-268, p. 4. 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. See 02-ORD-148; 05-ORD-129; 10-ORD-061; 11-ORD-176; 12-ORD-028. The majority of these decisions involved requests for specific fields of information maintained in the subject database, 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 03-ORD-214; 06-ORD-148; 12-ORD-028; 16-ORD-139.
Further, KRS 61.874(3) speaks directly to this issue. In relevant part, KRS 61.874(3) provides that, " 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 group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred." (Emphasis added.) "If, however, the agency maintains a pre-existing query, filter, or sort capable of extracting the information sought, the agency must produce the records, as requested, and can recover only its actual reproduction costs, excluding staff time and programming costs." 12-ORD-028, p. 4 (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); 05-ORD-116; 09-ORD-197; 14-ORD-124. This position mirrors the holdings in a line of decisions dating back to 95-ORD-82. See 99-ORD-68; 02-ORD-148; 05-ORD-129; 06-ORD-148; 07-ORD-162; 11-ORD-085; 13-ORD-134; 17-ORD-268.
This office has independently confirmed that CIPS maintains the requested "global email contact list," i.e., the database, on a "Microsoft Office 365 server." Accordingly, the CIPS Administrator can export its global e-mail address list to a comma-separated values file ("CSV"), which CIPS can provide to Ms. House in either hard copy or electronic format. A CSV file can be opened with Excel and printed or saved to a CD, thumb drive, etc . In other words, CIPS will not have to create a record in order to satisfy Ms. House's request. Ms. House "did not ask [CIPS] to reformat its existing database nor did [she] ask the agency "to tailor the format to satisfy [her] particular needs, but instead ask[ed] for a copy of [an existing set of data within the] database in its entirety[.] It is therefore not within the discretion of [CIPS] to deny [her] request per KRS 61.874(3)." 06-ORD-148, p. 7; 18-ORD-078. The list of e-mail addresses of CIPS employees, an existing "public record" within the meaning of KRS 61.870(2), is not protected from disclosure per KRS 61.878(1)(a) or any other statutory exception; consequently, "it is incumbent on [CIPS] to provide [Ms. House] with a copy upon request [and payment of a reasonable copying fee if appropriate]." 06-ORD-148, pp. 6-7; 18-ORD-078.
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 On appeal, Ms. House asserted that CIPS failed to issue any response to her October 4 request. However, in his October 29 response on behalf of CIPS, Bryce C. Rhoades, counsel for CIPS, indicated that he was responding to Ms. House's October 24, 2018, request and stated that he was uncertain as to whether CIPS received her October 4 request or misplaced it.
2 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; 05-ORD-230; 16-ORD-236. 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 (emphasis added). A review of the statutory language upon which these decisions are premised validates our longstanding position. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2).
3 In the event that any individual requests and receives the global e-mail address list and uses the list in a manner that CIPS believes to be illegal, it may pursue relief in a judicial forum. However, such issues are beyond our scope of review under KRS 61.880(2) and no evidence of such misuse is present here. See KRS 61.871 (recognizing that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others").
4 Ms. House's identity and purpose in requesting access have no bearing on the relevant legal analysis. See Zink, 902 S.W.2d at 828 (recognizing the "Legislature clearly intended to grant any member of the public as much right to access the information as the next."); 96-ORD-209 ("all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof"); 07-ORD-056. Pursuant to KRS 61.874(4)(b), if Ms. House requested the list for a commercial purpose, which she adamantly denied in her December 12, 2018, reply letter, CIPS may require a certified statement of "the commercial purpose for which [it] shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee." 18-ORD-223, p. 4.
5 KRS 61.874(4) also 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 [based on the factors identified at (c)].
KRS 61.874(5) provides: It shall be unlawful for a person to obtain a copy of any part of a public record for a:
(a) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
(b) Commercial purpose, if the person knowingly uses or knowingly allows the use of the public record for a different commercial purpose; or
(c) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose.
6 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." KRS 61.874(2)(a). Ms. House did not specify a format in her original request. However, on appeal she indicated that she is requesting the "electronic record to which every administrator in a district has access when they wish to communicate a mass email to staff and faculty."