Request By:
Hon. Drexell R. Davis
Secretary of State
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. Edward J. Winterberg, attorney for George Atkins and George Atkins for Governor Committee, has appealed to the Attorney General the denial of inspection and a request for a copy of certain public records. The request and description of the records is stated as follows:
"Inspection and copying of any and all public records pertaining to the listing of duly registered voters in each and every county and precinct within the Commonwealth of Kentucky. Specifically this request is intended to obtain access to a copy of the computer discs and/or tapes containing the requested information and to obtain access and copying of all programming data necessary to the complete and efficient use and conversion of the electronically stored data into a printed format. "
You denied the request for a copy of the computer disc and/or tapes in a letter dated January 26, 1979 and signed on your behalf by you general counsel, H. Howell Brady, Jr. The reason given for denying the request for a copy was "KRS 61.878(1)(j) which excludes from the Open Records Act 'public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by the enactment of the General Assembly.'" Reference is made to KRS 117.025 (2)(i) which reads as follows: ". . . furnish at a reasonable price any and all precinct lists to duly qualified condidates, political party committess or officials thereof, or any committee that advocates or opposes an amendment or public question. The State Board of Elections may also furnish the precinct list to other persons at the Board's discretion, at a reasonable cost provided, however, the Board shall not furnish precinct lists to persons who intend to use such lists for commercial use."
This was the only reason given for denying a copy of the discs or tapes and therefore it is the only question we will discuss in this opinion.
In ruling on an appeal of the denial of a public record the Attorney General must consider the question in the light of the Open Records Statute, KRS 61.870-61.884, which makes all public records open to any person unless they are exempted by law. The fact that the requester on this appeal is a candidate for political office will have no bearing on our opinion. The question we face is whether any member of the public is entitled to obtain a copy of a computer tape or disc which is not exempt because of its contents or because of a specific statutory provision.
First, we cannot accept the view expressed by your office that KRS 17.025(2)(i) preempts the Open Records Law in regard to computer data on registered voters. Said statute merely mandates that the State Board of Elections shall put into precinct list form all of the registered voters of the state and make chose lists available to candidates and other persons. There are no restrictive words in the statute except to the effect that the precinct list shall not be used for commercial purposes. That is not a question in the appeal at hand. We conclude, therefore, that there is no expressed statutory exemption for the subject records.
The next question is whether the request describes with sufficient specificity public records within the definition of the Open Records Law. The statutory definition is contained in KRS 61.870(2) as follows:
"'Public Records' means all books, papers, maps, photographs, cards, tapes, discs, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public Records' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority."
The requested records on this appeal are described: "Specifically this request is intended to obtain access to a copy of the computer discs and/or tapes containing the requested information and to obtain access in copying of all programming data necessary to the complete and efficient use and conversion of the electronically stored data into a printed format. " The requested information is described as all public records pertaining to the listing of duly registered voters in each and every county and precinct within the Commonwealth of Kentucky.
We believe that the request is specific and that the tapes and discs requested are public records.
At our request Mr. Brady has furnished us specimen copies of two lists of voters. One specimen is of the precinct list distributed to candidates under KRS 117.025(2)(i). The other specimen is a print-out of the alphabetic roster of registered voters according to counties. Both of these lists contain practically the same data except that the county alphabetic roster contains the social security number and date of birth of each voter. Both lists contain the name, address, precinct, party affiliation, sex, race, age data and voting record. Although these lists contain an abundance of information about registered voters, they apparently do not satisfy the request. The request is for the original tapes and/or discs which work in a computer and can be used to extract various profile information according to query. Under the plain wording of the Open Records Law a requester is entitled to a copy of such public records. KRS 61.870 provides as follows:
"(1) Upon inspection the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee. If the applicant desires copies of public records other than written records, the custodian of such records shall permit the applicant to duplicate such records, however, the custodian may insure that duplication will not damage or alter the records.
"(2) The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost thereof not including the cost of staff required." (Emphasis added.)
We take note that the State Board of Elections has adopted a policy against selling copies of the computer tapes and/or discs and believes that it is only required to furnish the precinct list described in KRS 117.025(2)(i). A state agency cannot preempt the Open Records Law by regulation. We believe that there is no statute authorizing the State Board of Elections to persist in its policy against selling the computer discs and tapes.
It is therefore the opinion of the Attorney General that the request for a copy of the data on registered voters as described herein should be granted upon the advance payment of the prescribed fee, and we are so notifying you as provided by KRS 61.880. Said statute provides:
"(5) If the Attorney General upholds, in whole or in part, the request for inspection, the public agency involved may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public record is maintained."
A copy of this opinion is being sent to the requester.