Opinion
Opinion By: Andy Beshear,Attorney General,James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Warren County Clerk violated the Open Records Act in denying Becca Schimmel's November 9, 2018, request on behalf of WKU Public Radio for a "[b]lank form for documenting changes made to any social security numbers" and "[d]ocumentation of any changes made to social security numbers from calendar year 2016 to present." For the reasons stated below, we find that the clerk's office did not substantively violate the Open Records Act, but that it did not fully discharge its procedural obligations under the statute.
The clerk's November 9, 2018, response to the request consisted of the following: "The only changes and/or corrections of SSN # that our office does are done in our Motor Vehicle Dept. Motor vehicle transactions are not subject to open records request." After Ms. Schimmel requested clarification of the legal basis for the denial, the clerk replied on November 10, 2018: "Pursuant to KRS 61.878(1)(k) the Clerk's office is exempted from disclosing any public record or information that [ sic ] the disclosure of which is prohibited by federal law or regulation. The Federal Driver Privacy Protection Act prohibits the release of certain personal information from state motor vehicle records. That information would included [ sic ] the information you request regarding social security numbers."
Ms. Schimmel initiated this appeal on January 17, 2019, asserting two arguments. First, she stated that a "blank form" contains no personal information. Second, as to the remaining records, she argued that the clerk "must mask the protected information and release the unprotected information to me."
In response to the appeal, the clerk asserted that the process of changing a Social Security number "is originated within the AVIS computer program, and there is no blank form in existence for Ms. Schimmel to inspect. " 1 (Emphasis omitted.) We find no substantive violation of the Open Records Act in the clerk's failure to provide a nonexistent form. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
In this case, however, the clerk's initial responses did not affirmatively state that a blank form did not exist. Since it was incumbent on the clerk to assert the nonexistence of any responsive record, the clerk's responses on November 9, and 10, 2018, did not fully discharge the clerk's duty under the Act. See 02-ORD-144 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to [state their nonexistence] in clear and direct terms. . .. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient"). We therefore find a procedural violation of the Act.
On appeal, the clerk further explained the process for changes to Social Security numbers: "Every change is completed within the AVIS computer program. We have a notebook containing why the social security number was changed, but the information includes driver's license numbers, social security numbers, addresses, and photo identification." The clerk indicated that she had attempted to contact Ms. Schimmel to clarify the meaning of her request, but Ms. Schimmel had not responded. Thus, the clerk stated: "If the Attorney General's finding is that Ms. Schimmel is asking why the record was changed rather than asking for the record of change, I will gladly redact all the protected information, which will leave little information on the document." The clerk estimates approximately 400 pages of redacted documents would be at issue, which would result in a $ 40 charge for copies at 10 cents per page.
The federal Drivers' Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721 et seq. , is incorporated into the Kentucky Open Records Act by operation of KRS 61.878(1)(k), which creates an exception for "public records or information the disclosure of which is prohibited by federal law or regulation. " 18 U.S.C. § 2721(a) provides, in part:
A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or
(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9). . ..
"Personal information" consists of "information that identifies an individual, including an individual's photograph, social security number, driver identification number , name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." 18 U.S.C. § 2725(3) (emphasis added). Therefore, that category includes all the items of information listed by the clerk, with the exception of five-digit ZIP codes. "Highly restricted personal information" includes "an individual's photograph or image, social security number , [and] medical or disability information." 18 U.S.C. § 2725(4) (emphasis added).
A county clerk holds personal information as an authorized recipient under 18 U.S.C. § 2721(b)(1), which permits disclosure of such information "[f]or use by any government agency, including any court or law enforcement agency, in carrying out its functions." 2 18 U.S.C. § 2721(c) provides that "[a]n authorized recipient of personal information [under subsection (b)(1)] may resell or redisclose the information only for a use permitted under subsection (b) (but not for uses under subsection (b)(11) or (12))." 3
It is not necessary here to enumerate all the uses of personal information for which disclosure is permitted by 18 U.S.C. § 2721(b), since Ms. Schimmel does not claim to be seeking the information for any of those authorized purposes. Rather, she argues that the clerk must redact the personal information and provide whatever documentation remains. On this subject, KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
We find no error in the clerk's withholding protected categories of personal information pursuant to DPPA. Nor was it inappropriate for the clerk to seek a clarification from Ms. Schimmel as to the exact scope of her request. 13-ORD-104. On appeal, however, Ms. Schimmel has made it clear that she wants the personal information to be redacted and the remainder of the documentation provided. Therefore, the clerk must perform the redaction.
In her request, Ms. Schimmel specified that if the records could not be provided in electronic form, the clerk should "contact [her] for approval" if any copying fees exceeded $ 20. A public agency is to honor a condition of this nature, particularly when there is any ambiguity as to whether the request is for on-site inspection or for copies of records. 17-ORD-244. Therefore, it is the clerk's duty to ascertain whether Ms. Schimmel is willing to pay the estimated $ 40 for copies, or merely wishes to inspect the records on the premises, and proceed accordingly.
We reject the clerk's assertion that "[t]o come and inspect the documents would be almost impossible, as we will have to copy the documents and redact them prior to inspection. " The need to prepare redacted copies does not remove the option of on-site inspection. When a public agency makes copies of public records as a necessary step in the process of redaction, it may not charge a copying fee when the requester merely inspects the redacted records. 08-ORD-216; 09-ORD-021; 17-ORD-244. Rather, the agency "must discharge its duty [to redact] under KRS 61.878(4), and must bear the costs attendant to this duty." 95-ORD-82. Therefore, Ms. Schimmel may inspect redacted copies of the records at the clerk's office without being charged for copies. If she chooses to retain the copies, the standard charges will apply.
In conclusion, we find that the Warren County Clerk committed a procedural violation of the Open Records Act by initially failing to explain that no blank form existed as identified in the request. The clerk properly denied access to personal information protected by federal law, but must redact that information and provide the remainder of the requested records. Those records are subject to inspection or the providing of copies, at Ms. Schimmel's option, and the clerk may charge no fees for mere inspection of redacted copies.
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 A"'AVIS' means the automated vehicle information system established and maintained by the Transportation Cabinet to collect titling and registration information on vehicles and boats and information on holders of motor vehicle operator's licenses and personal identification cards." KRS 446.010(55). Pursuant to KRS 186A.287(1), county clerks and the Transportation Cabinet have access to AVIS to carry out these functions.
2 KRS 186A.010(1) describes the purpose of AVIS as "to enable Kentucky's county clerks to produce motor vehicle and trailer certificates of registration in their offices, and certificates of title in Frankfort, by automated means. . .."
3 18 U.S.C. § 2721(b)(11) and (12) refer, respectively, to requests for individual motor vehicle records and to use of information for bulk distribution lists, both dependent on the consent of the person to whom the personal information pertains.