TO BE PUBLISHED
May 24, 1995
In re: The Courier-Journal and Louisville Times Company/ City of Louisville, Division of Police
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Gardiner Harris, a reporter for the Courier-Journal, to the Louisville Division of Police. On September 15, 1994, Mr. Harris requested "an electronic copy of all the Police Department's arrests made from September 1992 through August 1994." Mr. Harris specified that the records be reproduced in the standard ASCII or EBCDIC format, and provided the Division of Police with two magnetic, 9-track tapes for this purpose. He asked that the Division of Police notify him in advance what he would be charged for these records.
On October 15, 1994, Mr. Gardiner received a memorandum from Paul Edwards, Manager of the Louisville Division of Police Computer Crime Center, notifying him that the Center had "completed the necessary programming to accommodate [his] needs," and advising him that the charge for reproducing these records would be $272.97. Mr. Edwards indicated that of this charge, $240 represented "programming time," $18.75 represented "CPU time," and $14.22 represented "pages printed." In a followup letter to the Courier's Metro Editor, Hunt Helm, Paul V. Guagliardo, Senior Attorney for the City of Louisville, attempted to justify the $240 charge for "programming time." Mr. Guagliardo explained:
In order to comply with Mr. Harris' request, it was necessary for the LDP Computer Crime Center to separate juvenile "arrest" information as required by KRS 610.320(3) and KRS 61.878(1)(l).
To produce a copy of the information consistent with Mr. Harris' request and state law, it took Mr. Edwards' staff eight hours of programming time. In our opinion, when the Police Department must create programs to separate material deemed confidential by state law, it is allowed to recover staff costs under KRS 61.874(3).
The Courier-Journal challenges the imposition of the $240 charge for "programming time."
We are asked to determine if the City of Louisville Division of Police violated the Open Records Act in imposing a $240 charge "to create programs to separate material deemed confidential by state law . . . ." For the reasons set forth below, and upon the authorities cited, we conclude that the Division of Police is required by KRS 61.878(4) to separate excepted material from nonexcepted material, and make the nonexcepted material available for inspection, and that it must bear the cost of redaction.
KRS 61.874(3) provides:
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. 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.
For purposes of the Open Records Act, standard electronic format is defined as a flat file electronic American Standard Code for Information Interchange (ASCII) format. KRS 61.874(2)(b). It is the position of the Division of Police that the deletion of exempt information from an existing database is synonymous with the production of a record in a nonstandardized or specially tailored format, and that it is therefore entitled to recover the cost of staff, or programming time, as well as its actual costs, consisting of C.P.U. time and pages printed. We do not agree.
Mr. Harris requested a copy, in standard ASCII format, of a database currently maintained by the Louisville Division of Police in which it stores information relating to arrests. That database apparently contains both adult and juvenile arrest records. Had Mr. Harris requested the same records in a hard copy format, and those records existed in that format, the Division of Police would be obligated, pursuant to KRS 61.878(4), to separate the juvenile arrest records from the adult arrest records, and would not be entitled to charge him for staff time expended in doing so.  It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, we believe that the Division of Police must discharge its duty under KRS 61.878(4), and must bear the costs attendant to this duty.
It is, of course, well settled that a public agency is not required to create a document that does not already exist in order to satisfy a request. See, e.g., OAGs 91-220, 91-101, 90-69, 90-26, 86-38. The agency may, of course, elect to do so, and under the Open Records Act as amended in 1994, recover its staff costs. KRS 61.874(3). We do not concur with the Division of Police in its view that the mere deletion of exempt information from an existing database results in the creation of an entirely new record. Requiring an agency to generate a previously nonexistent record upon request is not, in our view, equivalent to requiring it to redact exempt information from an existing record.
This position finds support in the language of the Act, as recently amended, and in a survey of other jurisdictions which have addressed this issue. The underlying rationale for these amendments is found at KRS 61.8715, which provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 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. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
The General Assembly has also recognized, at KRS 61.940(7), one of the provisions which has been deemed "essentially related" to the Open Records Act:
It is the policy of the Commonwealth of Kentucky to coordinate and direct the use of information resources and technologies to provide the most cost-effective and useful development, management, exchange, and retrieval of information by its elected and appointed officials and citizens.
These provisions, operating in tandem, suggest the need for state and local government agencies to manage and maintain their records in such a way that exempt and nonexempt information contained therein is easily separable, thus facilitating efficient and cost-effective retrieval of public records. Moreover, and as noted, KRS 61.878(4) mandates redaction of excepted material when it is commingled with nonexcepted material. The reasonable fee provision found at KRS 61.874(3) specifically excludes the cost of staff required. Clearly then, the General Assembly intended that public agencies bear the cost of redaction.
A cursory examination of cases and opinions from other jurisdictions lends further support to this position. In Long v. U.S. Internal Revenue Service, 556 F.2d 362 (9th Cir. 1979), cert denied 446 U.S. 917 (1980), the Ninth Circuit Court of Appeals held that the deletion of exempt information from a public record could not be equated with the creation of a new record, and that the agency must bear the cost of editing. At page 366 of that opinion, the court reasoned:
We do not believe, however, that the mere deletion of names, addresses, and social security numbers results in the agency's creating a whole new record. The facts here are very different from the Sears  case. There, the issue was whether agencies were required to explain the meaning of the phrase "in the circumstances of this case" and to provide all the documents on which they relied as showing the circumstances of the case. The Supreme Court held that the [Freedom of Information Act] does not require agencies to create records that did not previously exist. Requiring an agency to write an opinion upon request is far different, however, from requiring it to excise a name or social security number from an existing record.
Similarly, in Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982), the District of Columbia Circuit Court of Appeals observed:
It is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request. NLRB v. Sears, Roebuck & Co. [citation omitted]. A requester is entitled only to records that an agency has in fact chosen to create and retain. Thus, although an agency is entitled to possess a record, it need not obtain or regain possession of a record in order to satisfy a FOIA request. Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980).
The argument that a document with some information deleted is a "new document," and therefore not subject to disclosure, has been flatly rejected. Long, 596 F.2d at 366. This is true even if all but one or two items of information have been deleted. Disabled Officers' Association v. Rumsfeld, 428 F.Supp. 454, 457 (D.D.C. 1977). Agencies are not, however, required to commit to paper information that does not exist in some form as an agency "record." Thus, they need not write an opinion or add explanatory material to a document. Sears, Roebuck & Co., 421 U.S. at 161-62, 95 S.Ct. at 1521-22.
The court in Yeager thus concluded that "[a]lthough accessing information from computers may involve a somewhat different process than locating and retrieving manually-stored records, these differences may not be used to circumvent the full disclosure policies of the [Freedom of Information Act]." Yeager, at 321.
At least one state has also addressed this issue in a reported decision. In Bowie v. Evanston Community Consolidated School District No. 65, 538 N.E.2d 557 (Ill. 1989), the Illinois Supreme Court adopted the position articulated in Yeager, supra. Responding to the agency's argument that masking or "scrambling" portions of a record was tantamount to creating a new record, the court held:
The district is not being required to prepare a "new" record. Deleting information from a record does not create a "new" record, even if all but one or two items of information have been deleted. [Citations omitted.] Similarly, scrambling a record does not lead to the creation of a "new" record. [Citations omitted.] The district is only being required to delete the exempt matter, protecting the students' privacy, and disclose the nonexempt portion of the record. Ill.Rev.Stat.1985, ch. 116, par. 208.
See also, Op. Atty. Gen. Ga. 89-32, p. 5 (stating that it is "consistent with the spirit of the Open Records Act to provide access to public information when information can be obtained by a minimal computer search. In many instances, performing a limited number of operations on a computer and obtaining a printout may be the equivalent of physically locating and retrieving a particular file from a file room. However, the law does not require the creation or preparation of a new record or information.").
In a similar vein, the Governor of North Carolina, James B. Hunt, Jr., issued an executive order in 1994, in which he declared:
No request to inspect, examine, or obtain copies of public information shall be denied on the grounds that confidential information is commingled with the requested non-confidential information. If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the state agency shall bear the cost of such separation.
Computer hardware or software purchased by the agency after the effective date of this Executive Order should be capable of easily separating confidential information maintained on the same data base.
Executive Order 37 (1/28/94) Section 3(b), (c). And in Vermont, a Task Force on Information and Technology has issued a report in which it recommends changes in government information access law. The report is premised on the notion that records stored in an electronic format are open to all citizens, and should be available in that format. "Using New Information Technology to Enhance Democracy," Vt. Comm'n on Democracy, Report of the Task Force on Information and Technology (Jan. 1994). It, too, contains a recommendation that state and local government records which are electronically stored be managed in such a way that confidential and nonconfidential information is clearly divided.
Reference to these authorities suggests a growing trend in the law which is consistent with the position which we adopt here, and which we believe is warranted by the express language of the Open Records Act. It is therefore the opinion of this office that the Louisville Division of Police improperly assessed a $240 charge for programming time "to separate materials deemed confidential by state law . . . ." While we concur with the Division of Police in its view that it is obligated to delete juvenile law enforcement records, per KRS 610.320(3) and KRS 61.878(1)(l), from its existing database of arrest records, we do not agree that the deletion of this information is equivalent to the production of a record in a specially tailored or nonstandardized format within the meaning of KRS 61.874(3). Rather, we believe that the Division of Police is required to discharge this duty under KRS 61.878(4), and that it must bear the cost of redaction.
The Louisville Division of Police 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 action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Jon L. Fleischaker
Wyatt, Tarrant & Combs
Louisville, KY 40202
Hon. Paul V. Guagliardo
City of Louisville
Department of Law
Room 200, City Hall
Louisville, KY 40202-2771
We are spared debate on the issue of whether electronic records are public records. Kentucky, along with at least 43 other states, has recognized that electronic records are subject to open records laws. See, KRS 61.870(2); KRS 61.8715. "Access to Electronic Records," Reporters Committee for Freedom of the Press (Fall, 1994) p. 3.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).