Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Music Hall of Fame violated the Open Records Act in the disposition of Michael Sheliga's February 19, 2009, request for a copy of:
all electronic budgetary and financial record(s) of [the] organization for the last year . . . in either standard "flat file electronic American Standard Code for Information Interchange (ASCII) format" pursuant to KRS 61.874(2)(b), or in MS Word (.doc, .txt., or .rtf) or MS Excel (.xls) should this be easier . . .and no more expensive to supply.
Mr. Sheliga offered to provide the agency "with a flash (jump) drive . . . to copy the indicated electronic data . . . [or] a writeable CD should this be preferable . . . ." For the reasons that follow, we find that the Hall of Fame violated the Act in refusing to provide Mr. Sheliga with copies of the requested records in the requested electronic format, and offering, in the alternative, to provide Mr. Sheliga with hard copies of the records at a cost of $ 1.00 per page.
In its initial response to Mr. Sheliga, the Hall of Fame disputed its status as a public agency for open records purposes. On appeal, the Hall of Fame modified its position, acknowledging that it derives in excess of 25% of the funds it expends in the Commonwealth of Kentucky from state or local authority, and is, to the extent of the state or local funding, subject to the requirements of the Act. The Hall of Fame agreed to provide Mr. Sheliga with hard copies of the financial and budgetary records for 2008 "at a cost of $ 1.00 per page," but refused his request for an electronic copy "as [the Hall of Fame did] not wish to allow access to [its] computer information systems for fear of a compromise of the same." Pursuant to KRS 61.874(2)(a), the Hall of Fame is required to provide Mr. Sheliga with an electronic copy at a reasonable fee not to exceed its actual costs excluding the cost of staff required.
KRS 61.874(2)(a) expressly provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis added.) In construing this provision, the Attorney General has repeatedly determined that "if nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6; 99-ORD-38; 02-ORD-65; 06-ORD-147; 07-ORD-038; compare 03-ORD-222 (recognizing that KRS 237.110(8), which permits release to the public of information stored in state police electronic database of conceal-carry license holders in hard copy format only, overrides KRS 61.874(2)(a) notwithstanding requester's wishes). We have also recognized, as a corollary of this provision, that if the nonexempt records exist in hard copy format only, agencies must permit inspection of, and copying in, that format. KRS 61.874(2) firmly establishes that "agencies are not required to convert hard copy format records to electronic format. " Unless the requested records exist only in hard copy format, discretion rests with the requester, and not the agency, to determine whether copies are to be provided in electronic or hard copy format.
In the appeal before us, Mr. Sheliga does not request that the Hall of Fame convert hard copy format records to electronic format. The Hall of Fame acknowledges that it maintains the requested financial information electronically. It asserts, as the sole basis for denying his request for the records in an electronic format, that it does not "allow access to . . . computer information systems for fear of a compromise of the same." We find that the Hall of Fame's concerns are unfounded. Providing him with an electronic copy of the information in a removable medium, such as a CD, does not afford Mr. Sheliga a physical connection to the system from which the information is extracted or enable him to compromise that system. 1 Nor does the Hall of Fame's position represent a legally recognized basis for refusing to honor his request. Because he is statutorily invested with discretion to obtain electronic copies or hard copies of the records identified in his request, and because he has exercised his discretion in favor of obtaining copies in an electronic format, the Hall of Fame is obligated to produce a copy of its financial records for him in its native electronic, or alternatively, ASCII, format upon prepayment of reproduction charges not to exceed its actual costs.
Assuming, arguendo, that the Hall of Fame only maintained the requested records in a hard copy format, it would not, per KRS 61.874(2)(a), be required to convert those records to an electronic format to satisfy Mr. Sheliga's request. It would, however, be required to provide him with hard copies of those records for "a reasonable fee . . . not [to] exceed the actual cost of reproduction, including the costs of the media and mechanical processing costs incurred by the public agency, but not including the cost of staff required." KRS 61.874(3). The courts and this office have long recognized that unless an agency can substantiate greater copying costs in terms of the requirements of KRS 61.874(3), the agency may only charge ten cents per page for a standard 81/2 inches x 11 inches copy. We find that 02-ORD-218, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. Any attempt by the Kentucky Hall of Fame to impose a $ 1.00 per page reproduction fee clearly constitutes a subversion of the intent of the Open Records Act within the meaning of KRS 61.880(4).
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. Distributed to:
Michael SheligaMark A. Shepherd
Footnotes
Footnotes
1 This assumes that the Hall of Fame has removed any account log-in, access code, or password from the information released.