TO BE PUBLISHED 

93-ORD-118

October 15, 1993

IN RE: Becky J. Hartell/Department of Personnel

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Ms. Becky J. Hartell to the Department of Personnel on March 30, 1993. Ms. Hartell, a paralegal attached to the Post-Conviction Services Branch of the Department of Public Advocacy, requested "a computerized run of the salaries for all paralegals and legal secretaries within the employment of state agencies." She asked that this run include "the agency with which they are employed, their classification, and their salaries."

On April 1, 1993, Mr. Daniel F. Egbers, Managing Attorney for the Department of Personnel, denied Ms. Hartell's request. Mr. Egbers treated Ms. Hartell's letter as "a request pursuant to the Kentucky Access to Database Act [sic]." In support of his decision, he explained:

Mr. Egbers indicated that as a matter of policy, the Department of Personnel would not modify a database in order to fill a request for access to a database.

In her letter of appeal to this Office, Ms. Hartell states that in an effort to obtain records containing the salaries, classifications, and agency affiliation of all paralegals and legal secretaries employed by the state, she first contacted Ms. Susan Jeffers, Manager of the Compensation Branch of the Department of Personnel. Ms. Jeffers advised Ms. Hartell to direct her request to Mr. Egbers, explaining that she could receive a "computerized run of the salaries for all paralegals and legal secretaries . . ." along with their places of employment and classifications. She further advised Ms. Hartell that she would not be permitted to inspect the employees' names or social security numbers.

Ms. Hartell objects to Mr. Egbers' characterization of her request as a request under the Public Access to Govern-

mental Databases Act inasmuch as her original request was made under the Open Records Act. It is Ms. Hartell's position that the Department is not required to create a new database, but need only provide her with a printout of its existing database and redact any information of a nonpublic nature. She observes:

In closing, Ms. Hartell states that she would be willing to accept the requested records in any format.

The question presented in this open records appeal is whether the Department of Personnel properly denied Ms. Hartell's request for a computer printout of the salaries of

all paralegals and legal secretaries employed by state agen-

cies, their places of employment, and their classifications. For the reasons set forth below, we conclude that if, as Ms. Jeffers indicated, the Department maintains a database con-

taining the information sought by Ms. Hartell, it must release that information to her in electronic or hard copy format, but may redact any nonpublic information also contained in the database such as social security numbers and home addresses.

This Office has recognized, since the inception of the Open Records Act, that the public is entitled to know the name, position, work station, and salary of a state employee. OAG 76-717; OAG 77-726; OAG 78-231; OAG 78-728; OAG 78-837; OAG 79-469; OAG 82-233; OAG 82-234; OAG 87-76; OAG 87-84; OAG 90-19; OAG 91-48; OAG 91-81. This rule of law is premised on the notion that these are matters in which the public has a demonstrable interest "since state employees are carrying on the public's business at public expense." OAG 76-717, at p. 1. The Attorney General has also recognized that a state employee is entitled to privacy in matters relating to his personal life such as social security number, home address, and marital status. This information is protected from disclosure by KRS 61.878(1)(a) which authorizes the nonrelease of "[p]ub-

lic records containing information of a personal nature where the public disclosure thereof would constitute a clearly un-

warranted invasion of personal privacy." Simply stated, "the policy of disclosure is purposed to subserve the public in-

terest, not to satisfy the public's curiosity . . . ." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 328 (1992).

In 1990, the General Assembly enacted the Public Access to Governmental Databases Act, codified at KRS 61.960 through KRS 61.975. That Act applies to groups of records, electronically stored, that can be retrieved by a computer. Such records are, in general, subject to the same rules which govern access to records in hard copy format. An agency's denial of a request for electronically stored records is subject to the same dispute resolution mechanism as an agency's denial of a request for records in hard copy format. KRS 61.880; KRS 61.882. However, under the Public Access to Governmental Database Act, the purpose for which a person seeks to inspect or copy records is directly relevant. OAG 90-101; OAG 91-4; OAG 91-116; 93-ORD-14. If a request is made for a commercial purpose, as defined in KRS 61.960(3)(a)(2), an agency may, in its discretion, withhold the records. If a

request is made for a noncommercial purpose, an agency can withhold the records only if they fall within one of the exceptions codified at KRS 61.878(1)(a)-(k). 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).

Contrary to the position taken by the Department of Personnel, we do not believe that in enacting the Public Access to Governmental Databases Act the General Assembly intended to obstruct access to otherwise nonexempt records simply because they are stored on a database, unless the purpose for which they are sought is a commercial one. Mr. Egbers cites OAG 91-12 and 93-ORD-14 in support of his position that a public agency is not required to create a list or a database to satis-

fy a particular request. We acknowledge that this was the holding in the cited opinions, but believe that they are dis-

tinguishable from the facts presented in this appeal.

In both opinions, the requester asked that the agency generate a program containing specific information in a non-standardized format. For example, in 93-ORD-14, the requester asked for "[a] list of names, home counties, grades, salaries, classifications, number of years worked for state government, assigned cabinet, department, agency, and the work site address for all classified and non-classified state employees[]" on 3 1/2 inch IBM computer disk. Mr. Egbers responded that the work site address is not included in its database, and that therefore a database is not available in the format requested. Citing OAG 91-12, at page 5, this Office held that "what the public gets is what you have and in the format in which you have it." In other words, "[a]s is the case with the Open Records Act, the Public Access to Govern-

mental 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." 93-ORD-14, at p. 3.

Based on the statements made by Ms. Jeffers, and Mr. Egbers' own assertions in his April 1 response to Ms. Hartell's request, it is apparent that the Department of Personnel maintains a database containing the information to which she seeks access. Her request was couched in terms of a "computer run" only because she was directed to ask for the records in this format by Ms. Jeffers. The Department's objections are premised on the necessity of excising nonpublic data. In our

view, this argument does not provide an adequate basis for denial of a request for public records.

The Department of Personnel is not required to create a database to satisfy Ms. Hartell's request. The Department need only print out its existing database and excise or redact any nonpublic information, such as social security numbers and home addresses, as required by KRS 61.878(4). Taken to its logical conclusion, the Department's argument would mean that any records which are electronically stored, and which contain both exempt and nonexempt information, are forever exempt from public inspection. Given the growing movement toward automated record keeping, we do not believe that the General Assembly could have intended such an absurd result. The Department is therefore directed to release the records requested by Ms. Hartell in electronic or hard copy format.

The Department of Personnel may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions brought in the circuit court pursuant to KRS 61.880(3), but shall not be named as a party in this or any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/564

Distributed to:

Hon. Daniel Egbers

Managing Attorney

Department of Personnel

Capitol Annex

Frankfort, KY 40601

Ms. Becky J. Hartell, Paralegal

Department of Public Advocacy

Kentucky State Reformatory

LaGrange, KY 40032