Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the August 25, 2011, request of Frank Boyett, Staff Writer for The Gleaner , for "copies of 26 tables out of 55 in the database described at KRS 237.110(10) and known as the CCDW_LEOSA database" 1 in the "standard electronic format described in KRS 61.874(2)(b), which mandates flat file ASCII data." 2 KSP initially advised Mr. Boyett that "[t]he CCDW database was intentionally designed to be incapable of producing reports or records other than the statistical annual report 3 due to the confidentiality of the information it contains" per KRS 237.110 as "KSP is not required by law to keep records in the manner" that he requested nor, KSP asserted, is a public agency required "to compile information to conform to the parameters of a given request." 4 When viewed in context, and in light of well-established principles of statutory construction, the mandatory language of KRS 237.110(10) is controlling, as KSP persuasively argues on appeal; thus, discussion of the initial bases for denial and the subsequent detailed arguments of the parties regarding if or how specific tables of data can be extracted, 5 which are not repeated here in the interest of brevity, is unnecessary.
In the absence of binding statutory or judicial authority to the contrary, this office agrees with KSP that KRS 237.110(10), by its literal and unambiguous language, demonstrates a legislative intent for KSP to maintain the confidentiality of not only "[i]nformation on applications for licenses, " and "names and addresses," but also "other identifying information relating to license holders" except as to law enforcement agencies, which includes the requested tables of data containing the "collective characteristics by which licensees are identified." Regardless of whether KSP is actually capable of extracting the data 6 or how narrowly The Gleaner framed its request in a good faith attempt to request "only anonymized data," the legislative intent, as expressed in the relevant statutory language, is dispositive. "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002).
Arguing that he did not request "copies of reports," nor is he asking "KSP to compile information" for the purpose of satisfying his request, Mr. Boyett initiated this appeal, further asserting that he "requested copies of existing tables of data from an existing database, " and has "described the requested data with considerable precision." Mr. Boyett also elaborated upon his position that KSP "has a legal obligation" under the Open Records Act "to maintain its databases in such a manner that they can be copied in the standard electronic format. " 7 It suffices to say that his points in that regard are well-taken and his related concerns may be valid; nevertheless, having given due consideration to all of the arguments raised in The Gleaner's letter of appeal and subsequent correspondence, as well as the responses by KSP, including the "CCDW LEOSA Table Descriptions" provided to it by Open Portal Solutions (attached to Mr. Holtgrave's affidavit confirming that the CCDW database "was not designed or constructed to print individual table[s] or fields"), 8 the Attorney General concludes that KRS 237.110(10) is dispositive of the question presented.
In relevant part, Mr. Boyett argued that minus a name or address, "a birth year is of little use in identifying someone. Half the population is of one sex or the other, so gender is not of much use for identification purposes, either." Considering the "number of people living in a particular zip code or born in [a] particular country," Mr. Boyett further contended, "that information is so dilute that it is relatively useless for identification purposes although in the aggregate it has a great deal of statistical value." Because the "overall emphasis" of KRS 237.110(10) is "on protecting the privacy individual permit holders, " Mr. Boyett concluded, the "request for data does not violate the legislative intent. "
Upon receiving notification of Mr. Boyett's appeal, Assistant General Counsel Roger G. Wright responded on behalf of KSP, correctly observing that the dispositive question presented here "is whether KRS 237.110(10) permits the release of [CCDW] licensee database information." Applying well-established principles of statutory construction, KSP argued that by its "clear, explicit terms" KRS 237.110 establishes that "application information and other identifying information related to license holders is confidential. As such, [Mr. Boyett] is not entitled to the information which he seeks regardless of his argument that disclosure of any identifying information could be limited ( i.e., such as by only disclosing a licensee's year of birth and county of residence) to limit the risk of identifying an individual licensee. " Citing 03-ORD-222 (holding that "any identifying information relating to [CCDW] license holders other than a list naming all CCDW license holders (in hard copy format only) is exempt from disclosure pursuant to KRS 237.110[(10)]") and 04-ORD-060 (holding that KRS 237.110(10), the "subsequent and specific statute," which then specified that KSP could provide the requested list of license holders but in "hard copy form only," prevailed over KRS 61.874(2)(a)), 9 KSP also correctly noted that the Attorney General "has recognized the necessity for strict construction of the confidentiality provisions concerning CCDW licensee information in past decisions."
In reply, Mr. Boyett conceded that a strict construction of the relevant statutory language "could very well result in the denial of portions" of his request, "at least those tables or portions of tables containing information that appears on license applications." However, in The Gleaner's view, the "only 'identifying information' specified in KRS 237.110(10) [is] names and addresses, neither of which" Mr. Boyett requested. To the contrary, Mr. Boyett went "so far as to also avoid asking for full dates of birth to avoid getting any personal information that any reasonable person would consider useful in identifying a particular person." The Gleaner maintained that interpreting KRS 237.110(10) to encompass "any information pertaining to a licensee, such as gender or country of birth . . . flies in the face of strict construction. " Most of the data tables requested, Mr. Boyett asserted, "do not contain any 'identifying information' and are therefore releasable" according to his perception of the legislative intent.
Shortly thereafter, KSP elaborated upon the reasons it disagreed with The Gleaner's position "that rules of statutory construction as well as the underlying intent of the Open Records Act mandate public access to any information contained in [its CCDW] licensee database that does not explicitly identify an individual license holder. " The flaw in this position, KSP argued, "is that the statutory scheme set forth in KRS 237.110(10) clearly evidences the intent of the General Assembly to extend blanket confidentiality to all CCDW database information except for use by law enforcement purposes." The only information deemed accessible by the public "is the annual statistics report required under KRS 237.110(21)."
Again emphasizing the "dispositive language" of KRS 237.110(10), KSP then persuasively argued:
The statutory language "information on applications for licenses, " in the abstract, could be viewed as referencing information on the physical CCDW license application (copy attached as exhibit to affidavit of Robert Holtgrave). However, the language "names and addresses" which immediately follows in the statute reflects that the "information" terminology was used within a broader context.
It is a rule of statutory construction that a statute should be construed so that no part of it is meaningless or ineffectual. Ledford v. Faulkner, 661 S.W.2d 475, 476 ([Ky.] 1983). Since the name and address of an applicant are on the physical license application (see attached), use of the words 'names and addresses' would be mere surplusage unless the term "information on applications for licenses" is construed, consistent with established rules of statutory construction, to have a broader meaning. Further, the phrase "other identifying information" is clearly intended to encompass any other information pertaining to licensees. Identify means: "To establish the identity of." Identity in turn is defined as: "The collective aspect of the characteristics by which a thing is distinctly recognizable or known." [Citation omitted.] The requested data fields are the collective characteristics by which licensees are identified. While no one field alone may conclusively identify a licensee, a combination of fields may be clues to the identity or identifying characteristics of licensees, either individually or as part of a geographical area or group.
In sum, the position of KSP is that KRS 237.110(10) "prohibits the release of any database information pertaining to licensees -- regardless of whether information that links a particular field to an [identified] applicant or licensee is disclosed or not." Simply put, "whether read as a whole or piecemeal," KRS 237.110(10) "plainly evinces the intent of the General Assembly to extend confidentiality to the CCDW database except for law enforcement purposes." If Mr. Boyett is not satisfied with "the annual statistical report information" deemed public under KRS 237.110(21), KSP concluded, "his remedy is found with his elected representative" by seeking a change in the law. 10 For all of the reasons outlined in the excerpt quoted above, this office agrees.
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Confidentiality provisions found in the Kentucky Revised Statutes, including KRS 237.110(10), are unquestionably incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Resolution of this appeal turns on KRS 237.110(10), pursuant to which:
The Department of Kentucky State Police shall maintain an automated listing of license holders and pertinent information, and this information shall be available on-line, upon request, at all times to all Kentucky, federal, and other states' law enforcement agencies. A request for the entire list of licensees, or for al licensees in a geographic area, shall be denied. Only requests related to a named licensee shall be honored or available on-line. Information on applications for licenses, names and addresses, or other identifying information relating to license holders shall be confidential and shall not be made available except to law enforcement agencies. No request for lists of local or statewide permit holders shall be made to any state or local law enforcement agency, peace officer, or other agency of government other than [KSP], and no state or local law enforcement agency, peace officer, or agency of government, other than [KSP], shall provide any information not entitled to it by law.
(Emphasis added.)
As with any decision involving statutory application, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In so doing, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In the absence of a specific statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. , above. When viewed in light of these fundamental principles, the italicized language quoted above, and specifically the phrase "other identifying information, " as correctly interpreted by KSP in our view, is dispositive of the question presented.
This office has consistently deferred to agencies' reasonable interpretations of confidentiality provisions binding upon them absent binding legal authority to the contrary. 97-ORD-33 (deferring to Department of Corrections regarding interpretation of KRS 197.025(1)); 98-ORD-78 (deferring to then Revenue Cabinet regarding interpretation of KRS 131.190); 04-ORD-252 (deferring to Department of Workers' Claims regarding interpretation of KRS 342.229); 08-ORD-177 (deferring to Department of Financial Institutions regarding application of applicable federal regulations incorporated into Act by KRS 61.878(1)(k)); 09-ORD-058 (deferring to Education and Workforce Development Cabinet regarding interpretation of KRS 341.190(3) "absent express legal authority that is contrary"); 10-ORD-080 (deferring to Cabinet for Health and Family Services regarding interpretation of KRS 209.140 absent contrary legal authority). See also 08-ORD-118. Accordingly, the interpretation by KSP, though not necessarily dispositive, is more than reasonable and thus entitled, at a minimum, to deference in the absence of statutory or judicial authority to the contrary, none of which has been cited or independently located here.
Even if no deference was required or appropriate under this line of authority, however, the overall position, and in particular the interpretation of the critical phrase "other identifying information" set forth by the agency in this case is entirely persuasive and effectively reflects our independent assessment. Mr. Boyett does not dispute that information contained on licenses (including name, address, date of birth, social security number, gender, place of birth, U.S. citizenship, and photograph) must be withheld or that names and addresses must also be withheld under KRS 237.110(10). This dispute ultimately centers on the meaning of the phrase "other identifying information. " Because this office finds the reasoning of KSP in this regard correct on all counts, the following excerpt from its final response is hereby adopted:
The statutory language "information on applications for licenses, " in the abstract, could be viewed as referencing information on the physical CCDW license application. . . However, the language "names and addresses" which immediately follows in the statute reflects that the "information" terminology was used within a broader context.
. . . Since the name and address of an applicant are on the physical license application . . . use of the words 'names and addresses' would be mere surplusage unless the term "information on applications for licenses" is construed, consistent with established rules of statutory construction, to have a broader meaning. Further, the phrase "other identifying information" is clearly intended to encompass any other information pertaining to licensees. Identify means: "To establish the identity of." Identity in turn is defined as: "The collective aspect of the characteristics by which a thing is distinctly recognizable or known." [Citation omitted.] The requested data fields are the collective characteristics by which licensees are identified.
The phrase "[i]nformation on applications for licenses, " standing alone, refers, quite literally, to information appearing on the actual CCDW application only; however, this language cannot be viewed in isolation. As in past decisions, the Attorney General "attache[s] significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 07-ORD-241, p. 7, note 4 (construing KRS 61.870(2))(citation omitted); see 99-OMD-77, p. 4 (construing KRS 61.810(1))(citation omitted). 11 Accordingly, KSP is correct in arguing that "names and addresses" would be "mere surplusage," contrary to accepted principles of statutory construction, if this office does not construe "information on applications for licenses" more broadly than The Gleaner has proposed. The phrase "names and addresses" follows "information on applications for licenses" but does not limit or modify that category. A more reasonable interpretation of the sentence, particularly when viewed in the context of the overall statutory scheme, is that "other identifying information, " the final of three separate categories listed "is clearly intended to encompass any other information pertaining to licensees" not previously identified. For all of these reasons, the denial by KSP of Mr. Boyett's request is affirmed. This office is not "empowered to rewrite statutes to suit [its] notion of sound public policy when the General Assembly has clearly and unambiguously established a different notion." Leadingham v. Smith, 56 S.W.3d 420, 429 (Ky. App. 2001); 05-ORD-186.
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:
Frank BoyettRoger G. WrightShiann N. Sharpe
Footnotes
Footnotes
1 Mr. Boyett later conceded that tables 27, 31, 32, and 33 contain identifying information; likewise, Mr. Boyett ultimately withdrew his appeal relative to tables 12 and 23. Thus, only the remaining 20 tables requested are still in dispute.
2 Mr. Boyett emphasized that he was "in no way asking [KSP] or its contractor Open Portal Solutions to reveal the identity of individual holders of permits allowing the carrying of concealed deadly weapons." Rather, according to Mr. Boyett, he "carefully drafted his request to avoid asking for data that could include 'identifying information' as defined in KRS 237.110(10)." With regard to dates contained in some of the requested tables, which "could be used for helping identify license holders, " Mr. Boyett had "no objection" if KSP wished "to redact the month and day from the date," but specifically asked "that the year in the date be left intact, much as the Administrative Office of the Courts does for date of birth on its public access terminals."
3 KRS 237.110(21) mandates creation of such a report.
4 KSP further argued that Mr. Boyett's request "appears in part to encompass records and information obtained from centralized intelligence databases and criminal history reports which are exempt from public disclosure pursuant to KRS 17.150(4)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). In light of the determination that KRS 237.110(10) is controlling here, consideration of this alternative (if partial) basis for denial, which KSP did not reference on appeal, is unnecessary.
5 This office has recognized that a public agency is "not obligated to compile information in a format which [does] not exist or direct the creation of a program to extract [requested] information from the existing database, but that it must, in the alternative, provide the requester with a copy of its entire database after those fields of information for which statutory protection exist[s have been] properly masked." 11-ORD-085, p. 3, citing 03-ORD-004. These decisions were "premised on the assumption that the subject agencies had no pre-existing query, filter, or sort capable of extracting the specific information the requesters sought." Although KSP apparently does not have a pre-existing query, filter, or sort in this case, further discussion is unnecessary given the legislative intent expressed in KRS 237.110(10).
6 In addressing Mr. Boyett's supplemental correspondence, KSP ultimately provided the affidavit of Robert Holtgrave, Vice-President of Open Portal Solutions, the contract vendor that "developed and maintains the KSP [CCDW] database software," who confirmed that the "CCDW database was not designed or constructed to print individual table[s] or fields of information" and the "estimated cost to be able to print reports containing information by specified tables or fields would be $ 25,000.00." Although Mr. Boyett clarified that he did not request a "report, printed or otherwise," and thus characterized the preemptive mention of estimated programming costs as "a trifle disingenuous," presumably this information was provided largely to validate the assertion by KSP that it does not maintain the data in the manner described nor was the database designed with a mechanism by which KSP can extract individual tables containing data it deems confidential by statute. KSP later confirmed as much in reiterating that "the CCDW database was not designed to treat independent data fields as discreet printable or electronic records within the context of the overall operating software program." (Emphasis added.) As KSP correctly asserted, determination of the "actual costs and mechanics" associated with complying is unnecessary "to the resolution of this appeal on confidentiality grounds."
7 Attached to Mr. Boyett's appeal is a copy of the "data dictionary" for the subject database. This office recently upheld the denial by KSP of a previous request by Mr. Boyett for a copy of the "list of all reports that can be generated by" the CCDW database as no such record existed. 11-ORD-086. Mr. Boyett had originally requested "the most recent report from the [KSP] database that shows the current number of valid [CCDW] permits in each Kentucky county," as well as "digital copies of annual reports" identifying how many CCDW permit requests were "made from each county and how many [were] approved" for 2006-2010. Then, as now, in relevant part, KSP maintained that it "does not have the ability to filter or search the CCDW database" in that manner and the report consequently did not exist. Mr. Boyett subsequently revised his request. Because KSP did not offer any specific proof to establish that the "data dictionary" or "field list" ultimately requested was "'confidentially disclosed to' KSP or 'required to be disclosed to it,' nor was any evidence presented to establish that such a record is 'generally recognized as confidential or proprietary,'" this office concluded that KSP "failed to adduce sufficient evidence to justify its reliance on KRS 61.878(1)(c)1. as the basis for denying the request for the 'data dictionary' or 'field list' for that database. " Id. In so holding, this office did "not imply that KSP [could] not build a case under KRS 61.878(1)(c)1. for withholding portions of the data dictionary/ field list, only that it [had] not done so [there]." Id., p. 9.
8 Mr. Holtgrave identified "Common fields," that are "necessary in most tables so that each row in the table can be tied back to an application/license or an applicant/licenseholder," namely, "LicenseUniqSeqNmb -- A unique number assigned by the CCDW QC application to all CCDW applications and licenses . . . [which] is not the actual license number on the application and printed licenses, " and "LicenseHolderSeqNmb -- A unique number assigned by the CCDW QC application to all licenseholders and applicants."
9 KRS 237.110(10), then subsection (8), read as follows prior to being amended (effective July 12, 2006):
The Department of State Police shall maintain an automated listing of license holders and pertinent information, and this information shall be available on-line, upon request, at all times to all Kentucky law enforcement agencies. Except as provided in this subsection, information on applications for licenses, names, addresses, or other identifying information relating to license holders shall be confidential and shall not be made available except to law enforcement agencies. Requests for information to be provided to any requester other than a bona fide law enforcement agency which has direct access to the Law Enforcement Information Network of Kentucky shall be made, in writing, directly to the commissioner of the Department of State Police, together with the fee required for the providing of this information. The Department of State Police shall, upon proper application and payment of the required fee, provide to the requester in hard copy form only, a list of names of all holders in the Commonwealth of a license to carry a concealed deadly weapon. No identifying information other than the name shall be provided, and information for geographic areas or other subdivisions of any type from the list shall not be provided and shall be confidential. The fee to be charged shall be the same as for other public records provided by the Department of State Police. No request for lists of local or statewide permit holders shall be made to any state or local law enforcement agency, peace officer, or other agency of government other than the Department of State Police, and no state or local law enforcement agency, peace officer, or agency of government, other than the Department of State Police, shall provide any information not entitled to it by law. The names of all persons, other than law enforcement agencies and peace officers, requesting information under this section shall be a public record.
(Emphasis added.) Notably, the current version omits the language authorizing KSP to produce a list of license holders "in hard copy form only," instead providing that "[a] request for the entire list of licensees or for all licensees in a geographic area shall be denied. Only requests relating to a named licensee shall be honored or available on-line. " The restriction on releasing "identifying information" remains intact.
10 Although Mr. Boyett replied that Mr. Holtgrave's affidavit "makes no mention whatsoever of the ability of Open Portal Solutions to export ASCII copies of tables in the CCDW database, which is a crucial point of contention," as previously indicated, resolution of this appeal turns on the mandatory language of KRS 237.110(10) rather than database accessibility issues.
11 "When the term 'or' is utilized in a statute, it is ordinarily interpreted in the disjunctive as meaning 'an alternative.'" City of Lebanon v. Goodin S.W.3d, 2011 WL 2731853 (Ky. App.)(citation omitted).