June 7, 1993





IN RE: Michael L. Maple/Transportation Cabinet




This matter comes to the Attorney General on appeal from the actions of the Transportation Cabinet in responding to Mr. Michael L. Maple's April 20, 1993, request to inspect a print-out of the Cabinet's Rail-Highway Grade Crossing Database for the public at-grade crossings at Fields Lane and Scott Station Road in Shelby County. In a letter dated April 21, Mr. Joseph K. Heady, Principal Assistant to the Cabinet's Custodian of Records, advised Mr. Maples "that the appropriate office is researching their files and anything not protected by law will be made available . . . ." On May 17, he denied Mr. Maple's request, relying on 23 U.S.C. 409, incorporated into the Open Records Act by operation of KRS 61.878(1)(j).


In his letter of appeal to this Office, Mr. Maple notes that "the data requested presently resides in a computer database . . . in standard reporting format." It is his position that "output and delivery of the requested information embodies a standard system procedure which requires only a few minutes of time, and no manual records search."


We are asked to determine if the Transportation Cabinet properly denied Mr. Maple's request. Based on the rule announced in 93-ORD-14, a copy of which is attached, we conclude that the Cabinet did not violate the Open Records Act in denying the request, although its response was procedurally deficient. Our decision is premised on the fact that Mr. Maple's request for records stored on a database did not conform to the Public Access to Governmental Databases Act codified at KRS 61.960, et seq.


KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:


Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.


Unless the requested record is in active use, in storage, or not otherwise available, the custodian of records is required to notify the requester in writing whether the agency intends to honor the request within three days of its receipt. KRS 61.872(5). If the record is not immediately available, the custodian must so notify the requester, designating the earliest date for inspection, and provide a detailed explanation of the reasons for further delay. KRS 61.872(5).


Although his initial response was tendered on April 21, Mr. Heady did not indicate that the requested records were unavailable for inspection, explain the reasons for delay, or designate the earliest date the records would be available for inspection. In his followup letter, dated May 17, he denied Mr. Maple's request. This delay of nearly one month suggests a disregard for the underlying purpose of the Open Records Law, to wit, providing timely access to public records. We urge the Cabinet to review the cited provisions to insure that future responses are issued in a timely fashion and conform to the Open Records Act.


Nevertheless, based on this Office's decision in 93-ORD-14, we conclude that the Cabinet did not violate the Act in denying Mr. Maple's request. In that decision, we held that a request for records stored on a database must conform to KRS 61.970(1), a provision of the Public Access to Governmental

Databases Act. KRS 61.960, et seq. We concluded that a person seeking access to a governmental database must submit a statement of purpose, and, if that purpose is a commercial one, the statement must be certified. Because we believe that the cited decision is dispositive of the present appeal, we do not address the propriety of Mr. Heady's invocation of KRS 61.878(1)(j) and 23 U.S.C. 409.


Mr. Maple may wish to resubmit his request to the Transportation Cabinet. We urge him to review the Public Access to Governmental Databases Act, a copy of which is enclosed, to insure that his request conforms to the law.


Mr. Maple and the Transportation Cabinet may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Hon. Michael L. Maple

Suite 100, 440 S. Seventh St.

Louisville, KY 40203-1902


Mr. Joseph K. Heady

Dept. of Administrative Services

Transportation Cabinet

Frankfort, KY 40622