TO BE PUBLISHED
May 18, 1993
IN RE: Lee A. Jackson/Department of Personnel
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department of Personnel's denial of Mr. Lee A. Jackson's February 8, 1993, request to inspect certain records in the Department's custody. Mr. Jackson asked that he be provided with the following information as it pertains to all current employees of the Commonwealth of Kentucky, Executive Branch:
1. Cabinet, Department, Division, Local Office Branch,
2. Position Number;
4. Class Title;
5. Salary Grade;
6. Work County;
7. Employee Name;
10. Increment Date; and
Mr. Jackson, who is President of the Kentucky Association of State Employees, made his request under KRS 61.960, et seq., the Public Access to Governmental Databases Act. He certified that his request was made "for the purpose of allowing the Kentucky Association of State Employees to do demographic studies AND to solicit membership in the Kentucky Association of State Employees."
In response to this request, Mr. Daniel F. Egbers, Managing Attorney for the Department of Personnel, advised Mr. Jackson that the Department is not obligated to honor any request made for a commercial purpose. Mr. Egbers explained:
Your most recent request certifies a dual purpose, i.e., both solicitation of membership in KASE and 'demographic studies.' KRS 61.970(3)(c) provides:
It shall be unlawful for a person to obtain a copy of all or any part of a database or a geographic information system for a:
(c) Noncommercial purpose, and to use or to knowingly allow the use of the database or the geographic information system for a commercial purpose.
It is Mr. Egbers' position that this provision prohibits the dual purpose certified by Mr. Jackson in his February 8, 1993, letter.
Mr. Egbers also argues that the Department of Personnel does not maintain the data sought by Mr. Jackson in the format requested. Relying on KRS 61.878(1)(a), he indicates that the sex and race of individual employees have been deemed matters of personal privacy the disclosure of which would constitute a clearly unwarranted invasion of privacy. The information is provided at the applicant's option, and is used by the agency in developing Affirmative Action Plans and reporting to appropriate state and federal agencies. The Department has adopted a policy of declining requests for gender and race data unless the requester's "need to know" is based on a statute or regulation.
We are asked to determine if the Department of Personnel properly denied Mr. Jackson's request under KRS 61.960, et seq., the Public Access to Governmental Databases Act. For the reasons set forth below, and upon the authorities cited, we conclude that the Department's actions were consistent with the Open Records Law.
This appeal presents an issue of first impression for this Office: Whether a public agency may deny a request for a copy of all or any part of a database when the requester certifies a dual purpose, one commercial and one
noncommercial. This Office has previously recognized that although an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (k), if those records are requested for a noncommercial purpose, it may, in its discretion, withhold the same records if they are requested for a commercial purpose. OAG 91-4; OAG 91-116; OAG 92-99; 93-ORD-14. KRS 61.970(4) provides:
Notwithstanding any other provision of law, a database or a geographic information system shall be exempt from public disclosure under the provision of KRS 61.872, if such request is for a commercial purpose.
We have stated that KRS 61.970(4) constitutes an exception from public inspection in addition to those set forth at KRS 61.872(5) and 61.878(1)(a) through (k), but that the exception can only be invoked when the requester seeks access to a database or geographic information system and certifies that the request is made for a commercial purpose. OAG 91-4, at p. 2.
KRS 61.960(3)(a) defines a "commercial purpose" as:
The direct or indirect use of all or any part of a database, for sale, resale, solicitation, rent, or lease.
While this definition has not been interpreted by this Office or the courts, it clearly encompasses one of the uses to which Mr. Jackson intends to put the requested information. The Kentucky Association of State Employees requests the information contained on the Department's database "to solicit membership . . . ." Under the clear mandate of KRS 61.970(4), the Department may refuse to release its database for this commercial purpose.
It would serve no purpose to affirm the Department of Personnel's denial of Mr. Jackson's request relative to the commercial purpose asserted if we then found that the Department must release the same data for the noncommercial purpose asserted. We therefore conclude that a public agency may properly deny a request for a copy of all or any part of a database when the requester certifies a dual purpose, one of which is commercial, or when the requester certifies a
noncommercial purpose but his or her request contains information suggesting that the database may be put to a commercial use in contravention of KRS 61.970(3)(c). In our view, this is the only conclusion which can be reached. The statute cannot logically be read to mandate release of a database when the requester certifies that it will be used for a noncommercial purpose, and at the same time prohibit release of that database when the requester also certifies, or his request discloses, that it will be used for a commercial purpose. Because we believe that the exemption contained in KRS 61.970(4) disposes of this appeal, we need not decide whether the Department correctly relied on KRS 61.878(1)(a) in denying Mr. Jackson's access to information relating to race and gender. The Department correctly applied the Public Access to Governmental Databases Act in refusing to release its database.
Mr. Jackson may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Daniel F. Egbers
Department of Personnel
Frankfort, KY 40601
Mr. Lee A. Jackson
Kentucky Association of State Employees
115 East 2nd Street, #2
Frankfort, KY 40601