May 23, 1994
IN RE: Susan Hambene/Cabinet for Human Resources - Office of
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Susan Hambene, Director of Marketing for American Nursing Care, to the Cabinet for Human Resources - Office of Inspector General. On December 9, 1993, Ms. Hambene requested mailing labels for all certified nurses aides in Boone, Kenton, and Campbell Counties of Kentucky. On behalf of the Cabinet for Human Resources, Mr. Timothy L. Veno, Director of the Division of Licensing and Regulation, denied Ms. Hambene's request. Mr. Veno advised:
Because the information which you requested is stored in database form, the provisions of KRS 61.960 - KRS 61.992 apply. The term "database" is defined at KRS 61.960(1) as including, ". . . any group of records, electronically stored, that can be retrieved by a computer." The statute further defines "commercial purpose" at KRS 61.960(3)(a)2 as, "The direct or indirect use of all or any part of a database, in any form, for sale, resale, solicitation, rent or lease."
KRS 61.970(4) provides that:
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.
Because your work title suggests that this data is requested for a commercial purpose, the information is exempt from public disclosure under the provision of KRS 61.872 and your request is hereby denied.
This appeal followed.
Although she never expressly states that her purpose in seeking access to these records is a commercial one, Ms. Hambene implies that the labels will be used to recruit nursing aides for employment with American Nursing Care, "a full service home care and staffing company." She asks that we review the Cabinet's denial of her request, and that we consider "the loss of jobs and revenue in the state of Kentucky" which is likely to result from a negative decision.
This question presented in this appeal is whether the Cabinet for Human Resources properly relied on KRS 61.970(4) in denying Ms. Hambene's request. For the reasons set forth below, we conclude that the Cabinet properly denied her request.
KRS 61.975(1) provides, in part:
Public records stored on a database or a geographic information system which are subject to KRS 61.870 to 61.884, but are not requested for a commercial purpose, shall be made available for inspection to the public upon request at the offices of the public agency.
The converse of this provision is found at KRS 61.970(4), which states:
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.
Thus, for purposes of determining the propriety of release of a database, the stated purpose is directly relevant. OAG 90-101; OAG 91-4. While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (k), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. Purpose is relevant, however, only for requests to copy databases and geographic information systems as defined by KRS 61.960(1) and (2). Our prior opinions, holding that the purpose for which a person seeks access to public records, as defined by KRS 61.870(2), is irrelevant, remain unchanged. See, e.g., OAG 79-275; OAG 82-234; OAG 82-394; OAG 89-86.
The Cabinet for Human Resources properly denied Ms. Hambene's request for copies of mailing labels for all certified nurses aides in Boone, Kenton, and Campbell Counties, stored in database form, because her purpose in seeking access to those records is a commercial one. As noted, 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 the courts, it encompasses the use to which Ms. Hambene intends to put the requested information. American Nursing Care solicits certified nurses aides by mail for employment in its home care service operation. Under the clear mandate of KRS 61.970(4), the Cabinet may refuse to release its database for this commercial purpose.
The 1994 General Assembly undertook a broad revision of the Kentucky Open Records Act. Among the changes wrought by the General Assembly was the elimination of the "commercial purpose" exception recognized by this Office since the enactment of the Public Access to Governmental Databases Act in 1990. The parties would be well advised to apprise themselves of these changes, which would directly affect the outcome of this appeal, and which will take effect on July 15, 1994. Until that time, the principles we have enunciated prevail.
Ms. Hambene may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any
action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Timothy L. Veno
Office of Inspector General
Human Resources Cabinet
275 East Main Street
Frankfort, KY 40621
Ms. Susan Hambene
Director of Marketing
American Nursing Care
8044 Montgomery Road
Cincinnati, OH 45236