Kentucky
Reporters
in Kentucky say that one of the biggest barriers to getting electronic data
is inconsistent costs. This happens especially when a government agency contracts
with a private vendor for data processing services. Reporters in Kentucky have
a useful appeals process when an agency denies records because attorney general
opinions there are binding. The state’s laws regarding electronic access
are unusual in that records that are produced using public equipment are public
record unless exempt. This came into play in October 2000 when the attorney
general opined that a list of a sheriff’s cell phone records were public
because they documented "the use of public equipment at public expense."
The law. The
Open Records Act defines a public record to include "cards, tapes, discs,
diskettes, recordings, software, or other documentation regardless of physical
form or characteristics." Ky. Rev. Stat. Ann. § 61.870(2).
Since 1994, the
ORA has treated all public records similarly, regardless of their format. A
requestor is entitled to obtain a hard copy of a public record or an electronic
file, if available. As with all public records in Kentucky, a requestor intending
to use the information for commercial purposes faces a higher fee.
Records created
on public equipment, whether for agency or personal purposes, must be disclosed
under the Act unless the agency can articulate a specific exception. Ky. Op.
Att’y Gen. 00-97. See also Ky. Op. Att’y Gen. 99-112 (school district
improperly withheld a copy of pornographic materials allegedly copied from an
Internet site by a school district employee. "Records which were obtained
on public time and on public equipment are, in our view, public records");
98-ORD-92 ("telephone records for calls originating from a telephone line
used in a legislative leadership office may be disclosed"); Ky. Op. Att’y
Gen 98-31 ("a tape recording documenting a personal conversation of some
duration between a Division of Fire and Emergency Service employee and another
employee on a telephone extension dedicated to public use for 911 emergency
calls may be disclosed"); and Ky. Op. Att’y Gen 96-238 ("records
reflecting the names and facsimile numbers of all facsimile transmissions made
for personal, and not agency purposes on agency equipment, may be disclosed").
If the requestor
desires an electronic format other than ASCII, the agency may comply with this
request and charge the requestor for its time and expenses: "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 a group, the public agency
may at its discretion provide the requested format and recover staff costs as
well as any actual costs incurred." § 61.874(2)(b).
Kentucky has recognized
the relationship between the ORA and electronic storage and retrieval of public
records, and has directed public agencies to make their computerized information
available under the ORA: The general assembly finds an essential relationship
between the intent of this chapter and that of Ky. Rev. Stat. Ann. § 171.410
to 171.740, dealing with the management of public records, and of § 61.940
to 61.957, dealing with the coordination of strategic planning for computerized
information systems in state government; and that to ensure the efficient administration
of government and to provide accountability of government activities, public
agencies are required to manage and maintain their records according to the
requirements of these statutes. § 61.8715.
Cases &
opinions. A requester is entitled to copies of computer tapes from the secretary
of state containing public information on corporations. Ky. Op. Att’y Gen.
77-480 (Aug. 8, 1977). Likewise, a requester has a right to copies of computer
tapes and disks listing registered voters. Ky. Op. Att’y Gen. 79-77 (Feb.
5, 1979). But where a record was not yet complete and a computer system that
could use the record was not yet fully installed, the agency justifiably denied
computer data to a requester since source documents were available for inspection.
Ky. Op. Att’y Gen. 87-59 (Sept. 8, 1987).
In noncomputer
cases, the attorney general told agencies the law did not require them to create
a new document or a list. Requesters must inspect the records and compile their
own lists. Ky. Op. Att’y Gen. 375 (July 6, 1976); Ky. Op. Att’y Gen.
78-231 (April 4, 1978); Ky. Op. Att’y Gen. 80-308 (May 14, 1980). A requester
is entitled only to an up-to-date computerized listing of names of appointees
when the list is in existence or part of a database. An agency is not required
to prepare the list to satisfy the open records request. Ky. Op. Att’y
Gen. 90-101 (Oct. 23, 1990).
An agency is only required to make the material available in the format that
it was collected. A local police department that does not store arrest records
and reports of domestic violence and abuse in a database does not have to create
one. Ky. Op. Att’y Gen. 91-12 (Jan. 22, 1991). Records of gubernatorial
appointments to various boards and commissions are open records and may be obtained
in either paper form or electronic format. Ky. Op. Att’y Gen. 91-18 (Jan.
24, 1991). An agency is not required to create a list from public records where
such a list does not already exist. Ky. Op. Att’y Gen. 92-99 (June 15,
1992).
Because the geographic
information system statute requires commercial requesters to declare the commercial
purpose for which the data will be used, an agency could charge a requester
who failed to indicate whether the system would be used for a commercial purpose.
Ky. Op. Att’y Gen. 93-14 (Feb. 2, 1993); Ky. Op. Att’y Gen. 93-70
(June 7, 1993); Ky. Op. Att’y Gen. 93-73 (June 14, 1993). The state department
of personnel must provide a requester a printout of its existing database of
all paralegals and legal secretaries employed by the state, the agency in which
they are employed, their classification and salaries with redactions of non-public
information such as Social Security numbers. Ky. Op. Att’y Gen. 93-118
(Oct. 15, 1993). A public agency must allow access to electronically stored
records, as opposed to hard copy records, under state disclosure provisions.
Ky. Op. Atty. Gen. 95-43 (March 21, 1995).
If the database
exists, a requestor is entitled to have a search for nonexempt material in that
database. However, "a public agency is not required to create a list or
a database to satisfy a particular request." Ky. Op. Att’y Gen. 93-118
(Oct. 15, 1993).
In addition, the
agency does not have to provide unfettered access to its computers so that the
requestor can attempt to prove that he didn’t receive the records he requested.
Ky. Op. Att’y Gen. 00-8 (Jan. 20, 2000); 99-96 (June 4, 1999).
A computer crash
was no excuse for the Elsmere Police Department’s decision to deny records.
"Inability of a requestor to obtain information reflects poor records management.
Electronic record-keeping is to enhance access, not to impede access."
Ky. Op. Att’y Gen. 02-149 (Aug. 21, 2002).
In response to a directive from the Kentucky attorney general, the Cabinet for
Health Services turned over to a newspaper its records of Medicaid payments
to Lt. Gov. Steve Henry, which the agency believed may be subpoenaed by a federal
grand jury looking into possible Medicare fraud. A newspaper sought the documents
under state open records law because prosecutors have made Henry, who also is
a physician, the subject of a federal grand jury investigation of possible health
care fraud. The attorney general wrote that the records were clearly not protected
from disclosure under the exemption for law enforcement records because the
agency is not a "law enforcement agency," the records were not "compiled
in the process of detecting and investigation statutory or regulatory violations,"
and the agency did not "provide a sufficient description of the harm"
it would suffer if the records were disclosed. Ky. Op. Att’y Gen. 01-67
(April 19, 2001).
The Kentucky Supreme Court ruled that a compilation of school disciplinary records that does not identify individual students is not exempt from the state’s open records act. (Hardin County Schools v. Foster, 40 S.W.3d 865 (Ky. 2001).
The attorney general
affirmed the education department’s denial of a request to access the department’s
computers to search for records that it had denied existed. " The Open
Records Act does not permit a person to search through an agency’s files
to determine the truth of an agency’s response that it does not have the
requested records or that they do not exist. . . . The Open Records Act is not
a search warrant statute. It is a records statute." Ky. Op. Att’y
Gen. 99-96 (June 4, 1999).
Fees.
An agency "may prescribe a reasonable fee for making copies of public records
which shall not exceed the actual cost of reproduction, including the costs
of the media and any mechanical processing cost incurred by the public agency,
but not including the cost of staff required." Ky. Rev. Stat. Ann. §
61.874(3). An agency may charge the cost to prepare, program and reproduce a
list that did not exist when the request was made. Ky. Op. Att’y Gen. 88-19
(March 14, 1988). An agency that allows online access to electronic records
may charge fees limited to the cost of physical connection and reasonable cost
of computer time. Ky. Rev. Stat. Ann. § 61.874(6).
If the records
obtained online are being used for commercial purposes, the agency may charge
additional fees based on the cost to the agency to create, purchase, maintain
and produce a copy of the records. Ky. Rev. Stat. Ann. § 61.874(6)(b).
It is reasonable for an agency to charge $350 for the creation of a custom-made
database. The fee included reasonable cost of computer and personnel time and
printing cost. Ky. Op. Att’y Gen. 91-19 (Jan. 24, 1991). An agency properly
denied a request for a copy of its computer database when the requester’s
purpose was clearly commercial. Purpose is relevant when determining the propriety
of release of a database. Ky. Op. Att’y Gen. 91-116 (July 22, 1991).
Fees differ for commercial and noncommercial requestors. Noncommercial requestors seeking ASCII formatted files may be charged only the actual cost of reproduction, excluding staff time: "The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." Ky. Rev. Stat. Ann. § 61.874(3).
Commercial requestors
may be charged a "reasonable" fee. § 61.874(4)(a). As with any
other public record requested for commercial use, the public agency may consider
either or both of the following factors in determining a "reasonable"
fee: (1) Cost to the public agency of media, mechanical processing, and staff
required to produce a copy of the public records or records; (2) Cost to the
public agency of the creation, purchase, or other acquisition of the public
records. § 61.874(4)(c).
Software.
Software is defined as the "program code" but not "specific
addresses of files, passwords, access codes, user identifications, or any other
mechanism for controlling the security or restricting access to public records."
Ky. Rev. Stat. Ann. § 61.870(3)(a). Nonexempt electronic public records
used for noncommercial purposes are available in either electronic or hard copy
format. § 61.874(2).
However, an agency
is not required to make electronic copies of records available only in hard
copy. §61.874(2). News media use is not considered commercial. § 61.870(4)(b).
The law also allows online access to electronic public records at the discretion
of the agency. § 61.874(6). "If the applicant desires copies of public
records other than written records, the records custodian shall permit the applicant
to duplicate the records, but may ensure that duplication will not damage or
alter the records." § 61.874(1). Each agency is required to adopt
regulations relating to records access. § 61.876.
The term "software"
is included in the definition of "public record." § 61.870(2).
However, "software" is defined so as to exclude passwords and materials
prohibited from disclosure by licensing agreements: (3)(a) "Software"
means the program code which makes a computer system function, but does not
include that portion of the program code which contains public records exempted
from inspection as provided by § 61.878 or specific addresses of files,
passwords, access codes, user identifications, or any other mechanism for controlling
the security or restricting access to public records in the public agency’s
computer system. (b) "Software" consists of the operating system,
application programs, procedures, routines, and subroutines such as translators
and utility programs, but does not include that material which is prohibited
from disclosure or copying by a license agreement between a public agency and
an outside entity which supplied the material to the agency." § 61.870.
GIS. The geographic information system statute, Ky. Rev. Stat. § 61.970(4), provides that a database or geographic information system is exempt from disclosure notwithstanding another provision. Ky. Op. Att’y Gen. 91-4 (Jan. 15, 1991). A separate fee section that addresses the use of geographic information systems states that "commercial purpose" does not include "publication, broadcast, or other related use . . . by a newspaper or periodical; or . . . use . . . by a radio or television station in its news or other informational programs." §61.960(3)(b)(1), (2).
Commercial users
of geographic information systems must contract for use of the database with
the owner and must pay fees. § 61.970(2). The media "shall not be
held to have used or knowingly allowed the use of the database or geographic
information system for a commercial purpose as a result of its publication or
broadcast." §61.970(3)(c).
Resources. Search Attorney General Opinions; Kentucky Press Association