TO BE PUBLISHED
January 25, 1995
In re: Lee A. Jackson/Department of Personnel
OPEN RECORDS DECISION
This appeal originated in a request for a copy of public records submitted by Mr. Lee A. Jackson, President of the Kentucky Association of State Employees (KASE), to the Department of Personnel. Pursuant to KRS 61.960, et seq., the Public Access to Governmental Databases Act, Mr. Jackson requested a copy of that portion of the Department's database containing the name, position control number, cabinet, department or subdivision name and number, county of work, job classification by title and code, date of employment, date of current classification, salary, pay grade, status (permanent, temporary, seasonal), and status (full or part-time) of all executive branch employees. Mr. Jackson requested that the records be made available in electronic format on an IBM compatible computer disk. He certified that the records would not be used for a commercial purpose, but would instead be used "for other purposes including communication with employees about various matters of concern such as retirement issues, health and safety issues, wage and benefit issues, etc."
On behalf of the Department of Personnel, Mr. Daniel F. Egbers, Managing Attorney, responded to Mr. Jackson's request. Mr. Egbers advised:
In its request, KASE certified that its request was not for a commercial purpose and that it desired to enter into a contract with the Department under which we would provide eleven itemized items of information in an electronic format.
Two items of information, viz: date of employment and date of current classification, are not available in our current listings and would require a considerable amount of programming to retrieve. The major problem, however, is that because the Kentucky Association of State Employees is an unincorporated association, it lacks the standing to sue or be sued in its own name. As Judge Crittenden recently ruled, KASE therefore lacks standing to enter into enforceable contracts in its own name.
It was therefore Mr. Egbers's view that KASE "lacks standing" to make requests such as the one it submitted. 
In his letter of appeal to this office, Mr. Jackson challenges the Department's denial of his request. He notes that the Department has honored similar requests from other organizations in the past, including the American Federation of State, County and Municipal Employees. It is his position that the Department's denial of his request "is an example of the arbitrary manner in which the Department of Personnel honors request [sic] for database information."
The question presented in this appeal is whether the Department of Personnel violated the Open Records Act in denying KASE's request on the grounds that it is an unincorporated association and therefore lacks standing to sue or be sued in its own name, and to enter into enforceable contracts. For the reasons set forth below, we conclude that the Department improperly denied the request.
We begin by noting that Mr. Jackson is only entitled to that information about executive branch employees which is currently maintained in the Department's database. As we noted at page 5 of OAG 91-12, "[W]hat the public gets is what [the agency has] and in the format in which [the agency has] it." The Department is not obligated to retrieve the date of employment or date of current classification of these employees, since this information is apparently not stored in its existing database.
The Department is, however, required to adopt a uniform policy relative to requests for the same information. This office has long recognized that:
[A]gencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect.
OAG 89-86, p. 5, citing OAG 82-394. We believe that this principle still holds true. If, in fact, the Department of Personnel has adopted a practice of releasing records to some individuals or entities and withholding the same records from others, it should reevaluate the policy and implement a new, uniform policy.
The facts which give rise to this appeal occurred prior to the 1994 amendments to the Open Records Act took effect.  The result we reach is not altered by these amendments. Prior to amendment, KRS 61.970(2) provided, in part:
[A person who requests a copy of all or any part of a database or a geographic information system in any form for a commercial purpose] shall enter into a contract with the owner of the database or the geographic information system. The contract shall permit use of the database or the geographic information system for the stated commercial purpose for a specified fee.
(Emphasis added.) KRS 61.975(4) provided:
If a party wishes to access by electronic means the database or the geographic information system software programming source codes, object codes, and geocoded digital database or systems, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for such agreements, which fees shall not exceed the cost of physical connection to the system and the reasonable cost of computer time access charges.
(Emphasis added.) These provisions were incorporated into the Open Records Act in the 1994 legislative session, and the Public Access to Governmental Databases Act, in which they appeared, was repealed.  KRS 61.874(4)(b), the apparent analogue of KRS 61.970(2), now provides:
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requester stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
KRS 61.874(6), which appears to correspond to KRS 61.975(4), provides:
Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements.
Having scrutinized the language of both the original law and the law as amended, we find no other references to a requestor's obligation to enter into a contract.
On behalf of KASE, Mr. Jackson requested a copy of the Department's database in an electronic format, specifically on an IBM compatible computer disk. He did not ask that he be permitted to access the information by electronic means, or otherwise request "online access." He did not certify a commercial purpose, but instead indicated that the information would be used to communicate with employees "about various matters of concern. . . ." For these reasons, the Department of Personnel was not statutorily authorized to require, as a precondition to inspection and copying, that KASE enter into a contract for a stated purpose and a specified fee. The fee which the Department may charge for a copy of the database which is requested for a noncommercial purpose must be based on the actual cost of copying, not including staff time. KRS 61.975(2), now codified as KRS 61.874(3). The ongoing dispute relative to KASE's capacity to contract notwithstanding, the Department's basis for denial in the instant appeal lacks merit.
Both the old law and the new contain severe penalties for persons who misrepresent the purpose for which the records they request will be used. Prior to its repeal, KRS 61.970 provided:
(3) It shall be unlawful for a person to obtain a copy of all or any part of a database . . . for a:
(a) Commercial purpose without stating the commercial purpose;
(b) Specified commercial purpose, and to use or to knowingly allow the use of the database or the geographic information system for a different commercial purpose; or
(c) Noncommercial purpose, and to use or knowingly allow the use of the database or the geographic information system for a commercial purpose.
Similar language now appears at KRS 61.874(5)(a), (b), and (c).
Penalties for violation of these provisions were set forth at KRS 61.992, which was recodified in virtually identical language at KRS 61.8745. That section provided:
A person who violates [these provisions] shall be liable to the public agency from which the database . . . was obtained for damages in the amount of:
(1) Three (3) times the amount that would have been charged for the database . . . if the actual commercial purpose for which it was obtained or used had been stated;
(2) Costs and reasonable attorneys' fees; and
(3) Any other penalty established by law.
In the event that the information requested by KASE is used, secondarily, for a commercial purpose, the Department may seek imposition of these penalties. The Department may not, however, read an additional requirement into the law by attempting to compel the Association to enter into a contract permitting use of the database for a stated noncommercial purpose, and thus frustrate access to the records on the grounds that the Association lacks the capacity to contract.
We hasten to note that nothing in the Open Records Act appears to preclude KASE, or any other unincorporated association, from "mak[ing] requests such as the one submitted."
Prior to amendment, KRS 61.872 provided:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.
(2) Any person shall have the right to inspect public records.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. 
On at least one occasion, this office has defined the term "person" in the context of an open records appeal. In OAG 90-13, p. 3, we observed:
[T]his office has consistently held that the word "person" shall include all of the definitions provided by KRS 446.010(26) which includes "bodies politic and corporate, societies, communities, the public generally, individuals,partnerships and joint stock companies[.]" 
We have thus recognized that because there is no specific provision defining the term "person" in Chapter 61, we must look to the definition of that term found in Chapter 446 "unless the context otherwise requires[.]" KRS 446.010.
In adopting this definition, we have attempted to facilitate the broadest possible access to public records by refusing to narrowly construe the term "person," or to impose hypertechnical requirements on persons or entities who wish to enforce their rights under the Act. We believe that this position is consistent with the clear intent of the law, which is articulated at KRS 61.871. For purposes of submitting an open records request, or appealing to the Attorney General, "person" may extend to an unincorporated association like KASE. We leave for another day the issues of whether the Association may enter into a contract for public records requested for a commercial purpose, or which it wishes to access "online," since neither of these issues is presented in the instant appeal.
The Department of Personnel 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. Dan Egbers, Managing Attorney
Department of Personnel
Frankfort, KY 40601
Mr. Lee A. Jackson, President
Kentucky Association of State Employees
115 East 2nd Street, #2
Frankfort, KY 40601
Hon. David Emerson
301 East Main Street
Lexington, KY 40507
Both Mr. Jackson and Mr. Charles Wells, Assistant Project Director for KASE, declined Mr. Egbers's invitation to submit this request in their personal capacities, asking instead that Mr. Egbers proceed to issue a denial of the Association's request.
Those amendments took effect on July 15, 1994. Mr. Jackson's request was submitted in January, 1994.
Although not relevant to this appeal, the Open Records Act underwent substantial amendment in this session. In the most far-reaching amendment to the Act, the General Assembly recognized 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, or 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 or if the requestor certified a dual purpose, one of which was commercial. See, e.g., OAG 91-116, 93-ORD-62. As noted, 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 now be honored regardless of whether the requestor'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.
The language of subsection (3)(b) was slightly modified in the 1994 legislative session. This amendment has no bearing on the instant appeal.
The term "person" has since been redefined, and now includes registered limited liability partnerships and limited liability companies. KRS 446.010(2).