Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Cabinet for Health Services (CHS); Cabinet for Families and Children (CFC); and Personnel Cabinet, violated the Open Records Act in their actions relative to the requests of B. C. Brummett for employment data, summarized in her letter of appeal, as "the number of appointments, promotions and reclassifications for a specific period of time and the number by age, race and gender occupying those positions at the end of June, 1999."
Each agency advised Ms. Brummett that the economic data she requested was not maintained in a standardized report and that a computer program must be written to produce the requested information. She was further advised the programming would be done by the Department of Information Services (now the Governor's Office of Technology) and that she would be notified when the cost of the programming was determined. A chronology of events is set out below.
In April 1999, Ms. Brummett submitted an open records request to CHS requesting, in relevant part:
[A] listing of the names of all appointments, reclassifications and promotions in the Cabinet's Frankfort offices from December 1995 through March, 1999. I understand this may require three reports due to two reorganizations. I would also like the aggregate totals of these people by race, gender, and age (i.e. how many men and women over the age of 40).
By letter dated April 30, 1999, Marcia R. Morgan, Executive Director, CHS, responded to Ms. Brummett's request, advising:
This is in response to your Open Records request referenced above and received in this Office on April 29, 1999.
Before we begin work on your Open Records Request, we wanted to advise you of the estimated cost of producing the listings of appointments, reclassifications and promotions from December 1995 through March 1999, and the totals by race, gender and age. Because a computer program must be written to produce your requested information, the charge will be from $ 50.00 to $ 150.00.
Please advise Ms. Jane Wilson at (502) 564-2157 of your decision of whether to proceed with that part of your request.
By letter of June 4, 1999, Ms. Brummett responded to Ms. Morgan's April 30, 1999 letter, informing her that she had contacted CHS staff concerning the necessity of programming and charges for same and that after she had received responses from staff, she would contact her about the request.
By letter of June 10, 1999, Ms. Morgan responded to Ms. Brummett's June 4, 1999 letter. In that letter, she stated, in pertinent part:
As far as the programming charge to produce a report of particular personnel actions with totals by race, gender and age from December 1995 through March 1999, we can only estimate a programmer's charge, which is normally $ 50.00 an hour. It may be possible to have reports done for both Cabinets by the same programmer at the same time. However, we can not guarantee how much time this will save and thus what the actual cost to you will be.
In letters to CHS (received on July 22, 1999) and CFC (received July 23, 1999), Ms. Brummett asked the agencies to "proceed with the generation of the requested material. " She further requested that if the cost exceeded $ 100.00, that she be given a copy of the programming for future use. She also listed the positions in which she was interested, described the information she was seeking and extended the relevant period of time for the requested employment data to June 30, 1999.
By letter to Ms. Brummett, dated July 27, 1999, Ms. Morgan acknowledged receipt of the request to proceed with the programming of the information requested. She also advised that a copy of the programming would be provided if the charges exceeded $ 100.00.
By letter to Ms. Brummett, dated August 27, 1999, Ms. Morgan advised that the programming charge to generate the requested material was $ 368.00 (six hours at $ 46 per hour). She further advised, since her request was split between CFC and CHS, that she should pay each agency half the amount ($ 184.00) by separate check payable to the "Kentucky State Treasury." Addressing Ms. Brummett's request for a copy of the programming, Ms. Morgan stated:
Of note, the program developed to respond to your request is in the possession and is the property of the Cabinet for Finance and Administration. A request for this program must be made to that Cabinet (address: Cabinet for Finance and Administration, Office of the Secretary, Room 383, Capital Annex, Frankfort, Kentucky 40601), for this office does not have the authority to release such program.
By letter dated September 25, 1999 to Mark Rosen, Director, Division of Personnel, CFC, Ms. Brummett, questioned the cost of the programming. She stated that she had been informed the cost would run between $ 50.00 and $ 150.00 and would be provided with a copy of the programming if the cost was over $ 100.00.
Addressing the issues raised in Ms. Brummett's September 25, 1999 letter to Mr. Rosen, L. Bert Hawkins, Executive Director, CHS, by letter dated October 20, 1999, advised Ms. Brummett that, upon reviewing the Cabinet's prior correspondence with her, he concluded that she had been clearly informed that the programmer's charge could only be estimated and the actual cost to her could not be guaranteed. Moreover, after reviewing the $ 368.00 programming fee, he noted that the fee actually represents eight hours at $ 46.00 per hour, rather than six hour at that rate. He reiterated that the $ 368.00 fee was to be split between CFC and CHS. He repeated Ms. Morgan's previous response, noted above, that the Cabinet for Finance and Administration created, possessed, and owned the program and a request for a copy of the program must be made to that agency.
On November 17, 1999, Ms. Brummett, in a letter to Mr. Hawkins, stated:
Apparently, there has been some misunderstanding. I did not request just aggregate totals but totals in eight (8) categories for each personnel classification I listed. I tried to make this clear in my latest description of my request. A copy of my letter is enclosed. The programming is already there to read for the appropriate data, except that subtotals of output for each classification would have to be provided, not just one grand total.
I envisioned a page for promotions, listing the data for eight (8) categories (combinations of age, race and gender) for Commissioner, then eight (8) categories for Deputy, then Director, on down the list. Then a similar page for the reclassifications, and a similar page for promotions. Finally, a second report so structured for the members in each category of people holding the listed personnel actions.
By letter dated December 22, 1999, Ms. Morgan responded to Ms. Brummett's November 17, 1999 letter that requested a further breakdown of data. She advised that the Finance and Administration Cabinet had indicated that the program it had created in response to Ms. Brummett's original request does not allow them to break down the data into subtotals for each classification over a four year period. Ms. Morgan further advised that, since the Finance and Administration Cabinet owned the programming program and had compiled the information she had requested, Ms. Brummett should contact that Cabinet directly for further requests relating to the programming.
Following the above open record requests with CHC and CHS, Ms. Brummett initiated open records requests with the Personnel Cabinet for the similar employment information. After several exchanges of correspondence, Ms. Brummett, by letter dated May 10, 2000, clarified an earlier open records request to the Personnel Cabinet, and renewed her request to that Cabinet for the employment data which is the subject matter of this appeal.
By letter dated May 15, 2000, Daniel F. Egbers, General Counsel, responded to Ms. Brummett's request on behalf of the Personnel Cabinet. In his response, Mr. Egbers stated:
This will acknowledge the May 15, 2000 receipt of your letter which was referred to me as the designated Custodian of Records by Secretary Palmore. Because your letter references a series of other documents but does not, as I had hoped, clarify your previous request, I am writing to make sure that I clearly understand what it is that you want. My understanding is that you would like "the number" of employees "appointed, promoted to or reclassified to certain specified classes for a four (4) year period ending June 30, 1999.["] You also requested the number of employees in each classification by race, gender and age (over and under 40 years). You noted that you had paid "over $ 300" to another agency for production of similar data but have not received the information you desired.
Your reference to 29 CFR § 1607 relates to EEOC Guidelines with respect to selection methods and testing. Testing data is inapplicable to the unclassified service, reclassifications and promotions for the classifications you listed [footnote omitted]. Since you did not send me the report number that we discussed, I have no way of advising the programmers (who would be tasked with attempting to generate the data you requested) where they should begin. Please understand that the Personnel Cabinet does not perform its own programming but rather is charged a $ 50.00 hourly rate by the Governor's Office of Technology to perform this task. While I regret that you did not receive what you wanted from the Cabinet for Families and Children, I should point out that the Open Records Act does not require a Custodian of Records to manipulate the database to suit the requester. Therefore, if the Personnel Cabinet should decide to request the custom programming you requested, we would have to charge you, in advance, for any programming costs associated with your request.
Another element that is not clear to me is whether you are looking for yearly totals, broken down by race, gender and age (over and under 40) on a year by year basis or a grand four year cumulative total. Please understand that if we decide to generate this data, we would not be able to provide you with a list of employees containing identifying information due to the personal privacy exemption in K.R.S. 61.878(1)(a).
With the understanding that we would not be able to provide any data with respect to items 1, 3, 4, 6 and 7 in the footnote (due to the absence of a class code with which to program for the information), if you will clarify your request with respect to whether you would like the data reported on a end-of-year or cumulative basis, I will ask the programmers to provide us with a time estimate and make a decision as to whether the Personnel Cabinet would be willing to generate the data you requested.
After further clarification from Ms. Brummett, Mr. Egbers by letter dated June 23, 2000, advised that the information she requested could be generated at a minimum cost of $ 340 and the request could not be processed until payment had been received. Addressing other concerns raised by Ms. Brummett, he further advised:
The payment that you had previously made to the Cabinet for Families and Children can not be used for this project because the Governor's Office of Technology will bill the Personnel Cabinet for this order. The programmer has indicated that he may have some questions once he begins the process of producing the data you requested. In order to avoid producing data that you may not want or need, it would be helpful if you gave us a telephone number where we can reach you in case the programmer has additional questions.
We are asked to determine whether the actions of CFC, CHS, and the Personnel Cabinet, relative to Ms. Brummett's request for the requested employment data in a nonstandardized format violated the Open Records Act. For the reasons that follow, we conclude that actions of the agencies did not constitute a violation of the Act.
KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
(Emphasis added.)
The Attorney General has recognized that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. 99-ORD-68.
All three agencies agreed to provide the requested information in a nonstandard format that required programming. Moreover, they provided an estimate of the cost of the programming, which was to be done by the Governor's Office of Technology (Department of Information Services). Although Ms. Brummett questions this in her letter of appeal, we find that the agencies, after initial discussions, clearly advised her that the cost for producing the records was only an estimate of the time it would take for the Office of Technology to do the programming necessary to satisfy her request. We conclude no violation of the Open Records Act occurred as to this issue.
Ms. Brummett also argues that although she paid the programming costs to CFC and CHS for generating the requested employment data, she did not receive the information she requested and challenges the costs she had to pay for those records.
The evidence presented in this case supports more a misunderstanding between the parties than an attempt to subvert the intent of the Open Records Act and indicates a good faith effort by the agencies to provide the information. After discussions were had between the parties, and at the direction of the CFC and CHS, programming was done by the Finance and Administration Cabinet, Department of Information Systems, to produce the records in a nonstandard format containing the employment data Ms. Brummett requested.
Responding to this issue, Mark Rosen, CFC, by letter dated December 22, 1999, advised Ms. Brummett that her letter of November 17, 1999, which requested a further breakdown of the employment data, had been forwarded to the Finance and Administration Cabinet. In his response, Mr. Rosen advised:
The Finance and Administration Cabinet has indicated that the program created for the open records request submitted jointly by the Cabinet for Families and Children and the Cabinet for Health Services (CFC#99-24 and CHS#99-36) does not allow them to break down the data into subtotals for each classification over the four year period. Since the Finance and Administration Cabinet owns the program and compiled the information provided to you, please contact the Finance and Administration Cabinet, Department of Information Systems, 1025 Capitol Center Dr., Frankfort, KY 40601 for any further information.
By letter dated December 22, 1999, Ms. Morgan, on behalf of CHS, advised Ms. Brummett to the same effect and also advised that, since the Finance and Administration Cabinet owned the program and had compiled the information she had requested, she should contact that Cabinet directly for further requests relating to the programming.
In his letter of June 23, 2000, Mr. Egbers, Personnel Cabinet, advised Ms. Brummett:
The programmer has indicated that he may have some questions once he begins the process of producing the data you requested. In order to avoid producing data that you may not want or need, it would be helpful if you gave us a telephone number where we can reach you in case the programmer has additional questions.
In another letter, dated August 10, 2000, Mr. Egbers indicated:
Ms. Brummett, the exchange of letters that we have had suggests that we are not communicating very well. I believe that we might have better success in communicating with one another if we could discuss your request, either in person or by telephone. If you have any further questions concerning this matter, I urge you to call me.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Thus, it is not the role of this office to resolve a disagreement or misunderstanding, if any, between the parties as to the records requested and the records provided. OAG 89-81. Because Ms. Brummett requested information in a specially tailored format, the agencies properly exercised its discretion under KRS 61.874(3) to require payment of its actual costs, as well as its costs for the programming, if she elected to proceed under the Open Records Act. 99-ORD-165. It is the opinion of this office that the agencies did not violate the provisions of KRS 61.870 through KRS 61.884 in its handling of this matter. The parties should continue to work together to resolve any differences or misunderstandings related to records sought and the programming charges incurred.
Finally, Ms. Brummett challenges the actions of the agencies in response to her request for a copy of the program developed to generate the information she requested. The CFC and CHS advised that the program was developed, owned, and in the possession of the Finance and Administration Cabinet, Department of Information Systems/Governor's Office of Technology. 1 Ms. Brummett was further advised that she should submit an open records request for a copy of the programming to the Finance and Administration Cabinet/ Governor's Office of Technology and provided her with the address of that agency.
In his letter of August 27, 1999, Mark Rosen, Director, Division of Personnel, CFC, advised Ms. Brummett:
The Office of Program Support has received the computerized reports from the Department of Information Systems (DIS). Concerning your request for a copy of the DIS programming, the Cabinet for Families and Children (CFC) does not have the jurisdiction over DIS documents; therefore, please submit an Open Records Request for a copy of the DIS programming to the Finance and Administration Cabinet, Room 383 Capitol Annex, Frankfort, KY 40601
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
In the instant case, CFC and CHS notified Ms. Brummett that they did not have custody and control of the programming and informed her that the request for a copy of such should be made to the Finance and Administration Cabinet, Department of Information Systems/Governor's Office of Technology. We conclude that the agencies' responses were consistent with KRS 61.872(4). 96-ORD-276. Accordingly, Ms. Brummett should submit her request for a copy of the programming to the Governor's Office of Technology, 702 Capitol Avenue, Suite 493, Capitol Annex, Frankfort, Kentucky 40601 for its response.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
Footnotes
Footnotes
1 CFC and CHS advised Ms. Brummett that her request for the programming should be made to the Cabinet for Finance and Administration, Department of Information Systems. The Personnel Cabinet advised her that programming questions should be addressed to the Governor's Office for Technology. The Personnel Cabinet, in its response to the letter of appeal, indicated that no programming has yet been run relative to Ms. Brummett's request to the Personnel Cabinet. Since the time Ms. Brummett submitted her open records requests in April, 1999, the Department of Information Systems was abolished and the Governor's Office for Technology, attached to the Governor's office, was created in its place. Accordingly, if she has not already done so, Ms. Brummett should submit her request for the programming of the CFC and CHS database to the Governor's Office for Technology. From the information provided, it appears no such request was made. Accordingly, this issue is not yet ripe for decision and will not be addressed here.