February 2, 1995

IN RE: Robert G. Clark/Kentucky Board of Medical Licensure


This appeal originated in a request for public records submitted by Ms. Florence S. Huffman, Vice President of Clark Publishing, Inc., to the Kentucky Board of Medical Licensure on September 2, 1994, and again on September 20, 1994. Ms. Huffman originally requested a copy of "an updated version of the Kentucky Medical Directory in an electronic format similar to the electronic format sent to the printer of the Kentucky Medical Directory." Ms. Huffman attached a certified statement of intended commercial purpose, pursuant to KRS 61.874(4)(b), acknowledging that the Board could impose a "reasonable fee" for this record based on the factors set forth at KRS 61.874(4)(a) and (c). This request was returned to Ms. Huffman with a handwritten notation advising her that "[p]ublication is not available in any electronic format." (Emphasis in original.)

Ms. Huffman resubmitted her request on September 20, 1994, asking that the Board reconsider its position. In a letter to Ms. Brenda Knopp, Office Manager for the Kentucky Board of Medical Licensure, she argued:

[T]he fact that the information is stored in and outputed [sic] from your PC shows that it does exist in electronic format and can be easily transferred to diskette. These criterion essentially describe materials in an electronic format.

(Emphasis in original.)

In a letter dated September 24, 1994, Mr. Wes Faulkner, General Counsel for the Board, responded to this argument, advising Ms. Huffman:

Your letter indicates that Ms. Brenda Knopp, the Board's office manager, informed you on September 2, 1994 that this agency does not possess this information in the electronic format you request. Please be advised that this agency can only provide the hard copy format of the Directory, as indicated on the enclosed order form.

Under the Open records law [sic], statis- tical data which has not been compiled, need not be provided by an agency. OAG 81-33 [sic].

For these reasons, Mr. Faulkner denied Ms. Huffman's request for reconsideration.

On behalf of Clark Publishing, Inc., Mr. Robert G. Clark, President, initiated this appeal with the Attorney General challenging the Board's denial of Ms. Huffman's request. Mr. Clark maintains that the "basis for [the Board's] denial is simply incorrect." He reasons:

According to agency personnel, the information is stored in a PC. It logically follows that if the information is stored in a PC, then it already exists in an electronic format. It is our position that printing to a diskette is as simple and legitimate as printing the information to a paper printer.

He questions Mr. Faulkner's reliance on OAG 81-333, noting that the requested data has already been compiled by the Board. Clark Publishing, Inc., Mr. Clark argues, wants nothing more than what the Board of Medical Licensure already has and in the format in which the Board has it.

In response to this office's request for additional documentation from the Board of Medical Licensure, pursuant to KRS 61.880(2)(c), Mr. Faulkner submitted an affidavit in which he averred, inter alia,

2. The records requested are available on paper and bound in a hardbook [sic] format.

3. Appellant [Clark Publishing, Inc.] is not satisfied with the handbook format and demands said material be produced on a computer "electronic format" which does not exist.

. . . .

6. Appellant obviously is not interested in the information requested (in the spirit of KRS Chapter 61) but, rather, the ability to profit from said information.

7. The information does not exist in the requested format and need not be provided to Appellant. OAG 81-333 and OAG 76-284.

(Emphasis in original.)

Mr. Faulkner also provided this office with an affidavit signed by Brenda Knopp. Ms. Knopp stated that she had explained to Ms. Huffman that the directory is created in Pagemaker, a desktop publishing program, on her personal computer, but is not maintained on the computer once it is sent to the Department of Printing for publication. The Department receives the directory in hardcopy, as opposed to electronic, format. After making a second hardcopy for herself, Ms. Knopp indicated that she deletes the electronic files from her computer. Thus, she asserted, "the directory no longer exists in any electronic format." (Emphasis in original.)

Elaborating on the process by which the directory is created, Ms. Knopp explained:

12. To create the directory, we have a program on the Micro-VAX system that builds the files that are used to create the directory. This program uses the informa- tion stored in the physician data files on the Micro-VAX where they are maintained on a daily basis. Once the directory files are created, they are imported into the "Pagemaker Desktop Publishing" program on the PC and put into the directory format. . . .

13. During the year, hundreds of changes/ updates are made to our database on the Micro-VAX. Even if I had the time, the August printing of the directory could not be recreated, since I am sure many changes/updates have been made to this database.

(Emphasis in original.) Like Mr. Faulkner, Ms. Knopp expressed concern that Ms. Huffman "was not concerned with obtaining information, but needed the information on [sic] electronic format in order to sell the information for profit." (Emphasis in original.)

In rebuttal, Ms. Huffman again asserts that the information she originally sought currently exists in electronic format. Having reviewed Ms. Knopp's affidavit, she observes:

[3.]b. Maybe it's a matter of semantics, but Ms. Knopp confirms that [the information exists in electronic format] when she says, ". . . we have the program on the Micro-VAX system that builds the files that are used to create the directory . . . . Once the directory files are created, they are imported into the 'PageMaker (sic) Desktop Publishing' program on the PC and put into the directory format." [Citation omitted.]

c. In paragraph 9, Ms. Knopp explains how she deletes the files on her PC. She mistakenly believes that by doing this she has deleted the files in their electronic format. Her belief is simply not correct. Ms. Knopp may very well believe that deleting the files from her PC deletes them in their electronic format. But, the files still exist on the Micro-VAX, and that is in an electronic format.

4. We believe that our Open Records request would be satisfied if the information [as it exists today] was provided to us in a file similar to the file used to import into PageMaker files. In other words, the agency could export the data in the Micro-VAX format with the program described in the affidavit. We understand that since the original was erased it cannot be reconstructed. However, the data as it exists in the Micro-VAX is satisfactory.

(Emphasis in original.) It is Ms. Huffman's belief that if the Board will release the data which exists in the Micro-VAX system, there will be "no further need to pursue this appeal."

We are asked to determine if the Kentucky Board of Medical Licensure properly denied Ms. Huffman's request. For the reasons set forth below, we conclude that the Board violated the Open Records Act in denying her request.

The Kentucky Open Records Act was substantially amended in the 1994 legislative session. Resolution of this appeal turns on the proper construction of these amendments. In the most far-reaching amendment to the Act, the General Assembly determined that a public agency must permit inspection and provide copies of nonexempt public records requested for a commercial purpose. That term is defined at KRS 61.870(4)(a) as "the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee." It does not include publication or related use of a public record by a newspaper, periodical, radio, or television station, or use of a public record in the preparation for prosecution or defense of litigation or claims settlement by the parties or their attorneys. KRS 61.870(4)(b).

In construing KRS 61.960 et seq., the Public Access to Governmental Databases Act, this office has previously ruled that a public agency could properly deny a request for records stored in a database if those records were requested for a commercial purpose. See, e.g., OAG 91-116. The Public Access to Governmental Databases Act was incorporated into the Open Records Act by the General Assembly in the 1994 legislative session, and the "commercial purpose" exception eliminated. A request for nonexempt public records which are maintained in a hard copy format, or electronically stored, must therefore be honored regardless of whether the requester's purpose is a commercial or noncommercial one. To the extent that our earlier decisions are inconsistent with these amendments, they can no longer be relied upon.

We therefore do not believe that Clark Publishing, Inc.'s interest in profiting from the information contained in the Board's database is inconsistent with the spirit of KRS Chapter 61. While it is certainly true that the "public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions [and that i]n general, inspection of records may reveal whether the public servants are indeed serving the public . . . ," it is the opinion of this office that in amending the Act the legislature intentionally enlarged the scope of the law by recognizing commercial use as a permissible use. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992). In light of the amendment of the law, we reject the notion that commercial use of public records is inconsistent with the spirit of the Act.

Whether the records requested by Clark Publishing, Inc., exist in an electronic format is a closer question. Ms. Huffman originally requested "an updated version of the Kentucky Medical Directory in an electronic format similar to the electronic format sent to the printer of the Kentucky Medical Directory." The Board acknowledges that information stored in the physician database on its Micro-VAX system is used to create the directory. This database is continually updated. The directory files are then imported into a publishing program on Ms. Knopp's personal computer. Once she has formatted those files, she prints two copies, one for the printer and one for her records, and deletes the files from her computer. It is her position that "the August printing of the directory could not be recreated . . . ."

In our view, what we have here is, if not a failure to communicate, certainly a breakdown in communication. Ms. Huffman did not request the directory files contained in Ms. Knopp's personal computer which were sent to the printer in August. Instead, she requested an updated version of the information contained in the Kentucky Medical Directory in an electronic format "similar to" the electronic format sent to the printer. Whether through prescience or good fortune, Ms. Huffman couched her request in sufficiently broad terms that it encompasses "updated version[s]" of electronic files "similar to" those used to create the directory. By the Board's own admission, the information Ms. Huffman seeks is stored in an electronic format on its Micro-VAX system. Because the data Ms. Huffman seeks has, in fact, been compiled and is in existence, we also reject the Board's argument that OAG 81-333 authorizes it to deny her request.

Perhaps the physician data files on the system contain more information than that which ultimately appears in the directory, and some of the information is protected by an exception to public inspection. We do not believe that this would preclude access to the files. Pursuant to KRS 61.878(4), if a public record contains both excepted and nonexcepted material, a public agency is obligated to separate the excepted and make the nonexcepted material available for examination. This fact, standing alone, does not excuse the Board from discharging its statutory obligation.

KRS 61.874(2)(c) provides:

Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format as designated by the party requesting the records, where the agency currently maintains the records in electronic format.

"Standard electronic format" is defined as "a flat file electronic American Standard Code for Information Interchange (ASCII) format." KRS 61.874(2)(b). However, "[i]f the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requester's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency." KRS 61.874(2)(b).

These provisions apply with equal force to nonexempt public records requested for commercial purposes. What distinguishes a request made for a commercial purpose is the requirement, which the agency may enforce at its election, that the requester submit a certified statement of purpose and/or enter into a contract permitting use of the records for the stated commercial purpose. Additionally, the agency may impose a reasonable fee for reproduction of the record based on the criteria set forth at KRS 61.874(4)(c)1. and 2., rather than the criteria set forth at KRS 61.874(3) and applicable to the reproduction of records requested for noncommercial purpose. The General Assembly has thus expressly authorized public agencies which furnish copies of public records requested for a commercial purpose to recover both their actual cost, including staff time required to produce the copy, and the cost of the "creation, purchase, or other acquisition of the public record." KRS 61.874(4)(c)2.

What the public agency can no longer do is flatly deny a request for electronically stored records on the grounds that the intended use of the records is a commercial one, or otherwise treat electronically stored records any differently than it treats records in a hard copy format. If the nonexempt records exist in both standard electronic and standard hard copy format, and the requester complies with the requirements of KRS 61.874(4), the agency must permit inspection and copying of the records in the format designated by the requester.

We find that the Kentucky Board of Medical Licensure improperly denied Ms. Huffman's request, insofar as the records she seeks are electronically stored on its Micro-VAX system, and that it should proceed to negotiate a contract and reasonable fee based on the principles articulated in the Open Records Act, as amended.

The Kentucky Board of Medical Licensure may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any actions filed against the agency in circuit court, but shall not be named as a party in that action or in any subsequent action.






Distributed to:

Hon. Wes Faulkner

Kentucky Board of Medical Licensure

310 Whittington Parkway, Suite 1B

Louisville, KY 40202

Mr. Robert G. Clark

Clark Publishing, Inc.

P.O. Box 24766

Lexington, KY 40524