TO BE PUBLISHED 

93-ORD-14

February 2, 1993

IN RE: Charles B. Wells/Department of Personnel

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Department of Personnel's denial of Mr. Charles B. Wells' November 6, 1992, request to inspect a public record in the Department's custody. That record is identified as "[a] list of names, home counties, grades, salaries, classifica- tions, number of years worked for state government, assigned cabinet, department agency and the worksite address for all classified and non-classified state employees." Mr. Wells requested that the record be made available on 3 1/2 inch IBM computer disk. He expressed the belief that the information is available through payroll records.

On behalf of the Department of Personnel, Mr. Daniel F. Egbers, Legal Counsel, denied Mr. Wells' request on November 11, 1992. He explained that "[t]he applicable data base is not available in the format requested (i.e. worksite address is not included[)]." In addition, he indicated that the request did not comply with KRS 61.970.

We are asked to determine if the Department of Personnel violated the Open Records Act in denying Mr. Wells' request on the grounds asserted. For the reasons set forth below, we conclude that Mr. Egbers properly denied the request.

Although he did not cite the relevant statute, Mr. Wells' request implicates KRS 61.960, et seq., the Public Access to Governmental Databases Act, insofar as the requested records are stored in a database. Accordingly, his request should have conformed to KRS 61.970(1). That statute provides:

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KRS 61.960(3)(a)2. defines a "commercial purpose" as:

The term does not include the publication, broadcast, or other related use of a database by a newspaper or periodical, or its use by a radio or television station in its news or other informational programs. KRS 61.960(3)(b)1. and 2. As a precondition to the release of a public agency's database, a requester must state the purpose for which it will be used. Because he failed to do so, Mr. Wells' request was procedurally deficient, a fact properly noted by Mr. Egbers.

Although the statute does not, by its express terms, require a requester to disclose his purpose if it is a noncommercial one, we believe that such a requirement is implicit. It cannot be assumed that the omission of a statement of purpose necessarily imports a noncommercial purpose. As this Office has previously recognized, in determining the propriety of release of a database, the stated purpose is directly relevant. OAG 90-101; OAG 91-4; OAG 91-116. While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) - (k), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. In addition, a requester's purpose has a direct bearing on the fee that can be imposed for copies of the database. KRS 61.970(2); KRS 61.975(3). In the absence of a stated purpose, it is impossible for the custodian, this Office, and the courts to determine the appropriate response to a request. Unlike the Open Records Act, in which the requesting party's purpose is irrelevant, the Public Access to Governmental Databases Act makes the purpose for which the data is to be used a critical factor in determining permissible access to the records.

While we do not believe that a requester, whose purpose in seeking access to a governmental database is noncommercial, is required to submit a certified statement of purpose, pursuant to KRS 61.970(1), he must, in our view, provide a general statement of the intended use of the database. For example, he might state, "This data will be used in conducting statistical analysis for information purposes."

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We do not view this as a particular hardship to the requester, and it is necessary to the agency's determination whether to honor the request, as well as this Office's determination in the event of an appeal.

Moreover, Mr. Egbers indicated that the applicable database is not available in the format requested. He explained that the worksite address is not included in its database. This Office has previously recognized that a requester "is only entitled to such a computerized listing when such a list is actually in existence or when it is part of a database." OAG 90-101, at p. 4. As is the case with the Open Records Act, the Public Access to Governmental Databases Act does not require a public agency to prepare a list, or create a database, to satisfy a request for records when there is no such list or database in existence when the request is made.¹ In other words, "What the public gets is what you have and in the format in which you have it." OAG 91-12, at p. 5.

Mr. Wells may wish to resubmit his request to the Department of Personnel. We urge him to review the Public Access to Governmental Database Act, a copy of which is enclosed, to insure that his request conforms to the law.

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

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

lil/1736

Enclosure