TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

94-ORD-80

 

June 28, 1994

 

 

 

 

 

 

IN RE: Roseann R. Hogan/Cabinet for Human Resources - Office

of Vital Statistics

 

 

OPEN RECORDS DECISION

 

 

Ms. Roseann R. Hogan challenges the actions of the Cabinet for Human Resources - Office of Vital Statistics in responding to her February 16, 1994, open records request. Ms. Hogan requested "an electronic copy of the cumulative index to births in Kentucky beginning with the year 1911 with the same information as is included in the old bound volumes . . . ."  

 

On March 7, 1994, Ms. Barbara F. White, State Registrar of Vital Statistics, denied Ms. Hogan's request. She explained:

 

Kentucky Law requires the state registrar to provide an annual alphabetical list of all persons registered as born in the preceding year for inspection. In addition, the law requires all identifying information be removed from vital records when the information is to be used statistically.

 

Ms. White noted that persons wishing to inspect the old bound volumes containing the index of births must do so at the Department for Libraries and Archives. Persons conducting research in the Office of Vital Statistics, on the other hand, must use microfiche "which has been updated to delete sensitive content regarding adoptions." The Office of Vital Statistics cannot, Ms. White maintained, authorize the release of unedited birth indexes.

 

In her letter of appeal to this Office, Ms. Hogan challenges these assertions. She argues that the information she seeks is available in several formats, including the bound volumes located in local health departments. Continuing, she observes:

 

Ms. White's letter notes that Kentucky law requires the registrar [to] provide an annual alphabetical list of all persons registered as born in the preceding year for inspection but that identifying information be removed when used for statistical purposes. I disagree since this index information is available to the public already. I merely ask that this list be provided in electronic format. Making up a special tape, etc. would obviously mean the department would need to charge me a great deal of money. The Department of Health Statistics, with the approval of the Registrar[,] has kindly provided me with the death index in electronic form already. The charge for a simple copy of the tape to my tape was $360. I would like to have an identical listing of the births.

 

Ms. Hogan acknowledges that there is a dispute about the availability of the statistical tape before the late 1970's, but expresses an interest in all available years, including the early years, "for trend analysis purposes."

 

We are asked to determine if the Cabinet for Human Resources - Office of Vital Statistics properly denied Ms. Hogan's request for an electronic copy of the cumulative index of births in Kentucky. For the reasons set forth below, we conclude that the Office of Vital Statistics improperly denied her request.

 

We begin by noting that KRS 61.880(1) sets forth procedural guidelines for agency response to a request for records under both the Open Records Act, KRS 61.870 to 61.884, and the Public Access to Governmental Databases Act, KRS 61.960 to 61.975. That statute provides, in part:

 

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days,

excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

 

Ms. White's response to Ms. Hogan's request was procedurally deficient insofar as she failed to respond within three business days. In addition, she failed to cite the specific exception to the Open Records Law upon which she relied, and briefly explain how the exception applies to the records withheld. We urge the Office of Vital Statistics to review the cited provision to insure that future responses conform to the Open Records Law.

 

Although not specifically identified as such, Ms. Hogan's letter to the Registrar of Vital Statistics may be properly characterized as a request under the Public Access to Governmental Databases Act. KRS 61.975(1) provides in part:

 

Public records stored on a database or a geographic information system which are subject to KRS 61.870 to 61.884, but are not requested for a commercial purpose, shall be made available for inspection to the public upon request at the offices of the public agency.

 

The converse of this provision is found at KRS 61.970(4), which states:

 

Notwithstanding any other provision of law, a database or a geographic information system shall be exempt from public disclosure under the provision of KRS 61.872, if such request is for a commercial purpose.

 

Thus, in determining the propriety of release of a database, the stated purpose is directly relevant. OAG 90-101; OAG 91-4. While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (k), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. Purpose is relevant, however, only for requests to copy databases and geographic information systems as defined by KRS 61.960(1) and (2). Our prior opinions, holding that the purpose for which a person seeks access to public records, as defined by KRS 61.870(2), is irrelevant, remain unchanged. See, e.g., OAG 79-275; OAG 82-234; OAG 82-394; OAG 89-86.

 

KRS 61.960(3)(a) defines "commercial purpose" as "[t]he direct or indirect use of all or any part of a database, for sale, resale, solicitation, rent or lease." Ms. Hogan advised Ms. White that the information she sought would be used in statistical research on the historical demography of Kentucky for publication in an academic treatise. While the term "commercial purpose" has not been interpreted by the courts, we do not believe that it encompasses the use to which Ms. Hogan intends to put the requested information. Although Ms. Hogan may receive a nominal fee for her efforts, we are not persuaded that her primary goal is the "sale, resale, solicitation, rent or lease" of the database. Any remuneration she may receive is incidental to her chief objective, i.e.,

contributing to this field of research and scholarship. Because Ms. Hogan's purpose is not a commercial one, the Office of Vital Statistics cannot properly deny her request on these grounds.

 

Rather, its denial must be premised on one or more of the eleven exceptions codified at KRS 61.878(1). Ms. White argues that Kentucky law requires the state registrar of vital statistics to remove all identifying information from vital records when the information is to be used statistically. She does not cite the separate enactment upon which she relies in arriving at this conclusion, nor does she cite the exception to the Open Records Law which incorporates that enactment. For purposes of this appeal, we will assume that Ms. White relied on KRS 213.131, the provisions of which are engrafted upon the Open Records Law by operation of KRS 61.878(1)(k).

 

KRS 213.131 provides:

 

(1) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.

 

(2) The state registrar shall prepare annually an alphabetical list of all persons registered as born in the preceding year. The list shall show the person's name, the

mother's maiden name, and the date and county of birth. This list shall be an open record subject to inspection by the public upon request.

 

(3) The state registrar shall prepare annually an alphabetical list of all persons registered who die in the Commonwealth. This list shall show the name of the deceased and the date and county of death and shall be an open record subject to inspection by the public upon request.

 

(4) The Cabinet for Human Resources may authorize by regulation the disclosure of information contained in vital records for research and official administrative purposes, if:

 

(a) All information identifying persons named on the certificate is withheld or removed;

 

(b) The information is requested by a federal, state, county, or municipal agency of government which needs the data or information in the conduct of official duties; or

 

(c) The cabinet has prepared, in writing, a statement of the conditions under which the data or records will be used and received an agreement signed by a responsible agent of the research organization agreeing to meet with and conform to the conditions.

 

(5) If one hundred (100) years have elapsed after the date of birth, or fifty (50) years have elapsed after the date of death, the records of these events in the custody of the state registrar shall become public records and information shall be made available in accordance with regulations which shall provide for continued safekeeping of the records.

 

It is the opinion of this Office that this provision does not mandate redaction of the index of births, which the registrar must prepare pursuant to KRS 213.131(2) and which is expressly declared to be "an open record subject to inspection by the public upon request" without exception or caveat. The index is described as an alphabetical list, prepared annually, of all persons registered as born in the preceding year showing the person's name, the mother's maiden name, and the date and county of birth. This is in contrast to "vital records," which are defined as "certificates or reports of birth, death, fetal death, marriage, dissolution of marriage, or annulment, and data related thereto[.]" KRS 213.011(14). Although KRS 213.131(4)(a) requires the Cabinet to withhold or remove all information identifying persons named on "the certificate" if it wishes to release "vital records" for research and official administration purposes, that statute does not require redaction of the annual index. Nor do the administrative regulations enacted pursuant to KRS 213.131(4), and found at 901 KAR 5:010, et seq. Accordingly, we conclude that Ms. White's reliance on KRS 213.131 was misplaced, and that she must release the requested records in the designated electronic format, if they exist in this format, subject to the fee provisions codified at KRS 61.975(2) and (3). OAG 92-99.

 

There appears to be some question as to the existence of an index in electronic format prior to the late 1970's. Ms. Hogan indicates that she is most interested in the "early years," but will accept "all years available for trend analysis purposes." As we observed in 93-ORD-14, 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, 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. In other words, "what the public gets is what you have and in the format in which you have it." OAG 91-12, p. 5. Thus, the Office of Vital Statistics is not obligated to create records in electronic format which are not already in existence.

 

Ms. Hogan and the Cabinet for Human Resources, Office of Vital Statistics may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

 

 

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Distributed to:

 

Ms. Roseann R. Hogan, Ph.D.

University of Kentucky

206 Gillis Building

Lexington, KY 40506-0033

 

Ms. Barbara F. White

State Registrar

Vital Statistics

Cabinet for Human Resources

275 East Main

Frankfort, KY 40601

 

Mr. George Robertson

Director, Health Services Data

Cabinet for Human Resources

275 East Main

Frankfort, KY 40601