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 Hart County Jail subverted the intent of the Open Records Act, short of denial of inspection, 1 by imposing an excessive fee for producing records responsive to Kyle Prall's April 24, 2012, request for "[b]ooking photos/[m]ugshots on every individual booked into the Hart County Jail from March 2, 2012, to March 31, 2012, . . . and the jail/ booking log for the same period" including "basic [inmate] information." 2 Mr. Prall asked that the records be provided "in their original database electronic format" but indicated that he could "accept virtually any electronic format. " Following an exchange of correspondence with Mr. Prall and the jail's third party vendor, Digitech Public Safety Solutions, Inc., d.b.a. JailTracker, the Hart County Jail obtained certification of Mr. Prall's intended commercial use of the requested records and thereafter notified him that the jail would compile the records for a $ 2,000 fee based on an estimate of "30 minutes per record download time" for the 297 prisoners booked in March. Contesting the reasonableness of the fee, Mr. Prall initiated this appeal. We affirm the agency's position.
On appeal, Mr. Prall contends that the proposed fee "is far in excess of the statutorily approved cost calculation formula" found at KRS 61.874(4)(c)1. and 2. He asserts:
The information requested is available online through . . . JailTracker . . . . The local jails have contracted with and paid for JailTracker in large part to reduce the burden on their departments by providing instant online access to public records without any labor from the jail staff . . . . [A]s the Hart County Jail is responsible for these records, they must ensure that their private vendors such as [JailTracker] provide access to public records in accordance with the Open Records Act. In addition, their cost letter does not reflect the allowable cost under the Act as we are able to obtain the records at no cost from the website or through only a few minutes of work by JailTracker.
Mr. Prall urges the Attorney General to "provide a decision that both the Hart County Jail and JailTracker have violated the Open Records Act" and that they are obligated to "provide access to the data at a cost in accordance with the Act which . . . would be almost nothing since it only takes a couple [of] minutes to provide access or allow us to copy the data ourselves [from JailTracker] . . . without the threat of copyright violations." 3
In supplemental correspondence directed to this office, the Hart County Jail justified its $ 2,000 fee for production of the requested records for commercial use 4 as follows:
1. 297 prisoners were booked between March 1 - March 31, 2012;
2. It will require approximately 30 minutes per prisoner to download the data;
3. This will require approximately 8,910 minutes/ 148.5 work hours at $ 12.25 per hour (the hourly rate for the employee who will compile the records for a total of $ 1,819.13;
4. The difference is for supplies and other incidental expenses.
In response to our KRS 61.880(2)(c) inquiry, the jail advised the Attorney General that the requested data resides in its own electronic database "in several areas within its system" and that it is therefore "not required to electronically access the requested data through JailTracker." Elaborating on its itemized fee calculations, the jail explained:
A jail employee must go into the billing file for the requested month and physically print the report which averages 15-20 pages, to obtain the names of all prisoners in the jail for that month (average of 320 prisoners per month); the employee then goes into the JailTracker program for the month in question to locate each individual prisoner; then the employee goes into each individual prisoner's file for that month; then the employee goes into records for each prisoner and scrolls down to News Reports for each prisoner; then the employee downloads each prisoner's information to My Pictures; then the employee closes out of JailTracker; then the employee goes into email; then the employee downloads the attachment; and then the employee emails the attachments for each prisoner.
These steps, the jail indicated, require the employee's full attention for approximately thirty minutes per prisoner. In response to our question concerning the $ 181 difference in the processing cost and fees imposed, the agency advised that:
Supplies represent the cost of 15-20 pages of billing reports each month. Incidentals [are] an anticipated pay raise for the employee who will be responsible for downloading and emailing the information.
In response, Mr. Prall characterizes the manual retrieval process described by the jail as "asinine," suggesting that "the requested information is already stored in a readily available system through JailTracker," and that "it is simply unnecessary for Hart County to create its own report when it can obtain it from JailTracker at essentially no cost." Mr. Prall did not, however, request the data from JailTracker. His request was directed to the Hart County Jail, a public agency which maintains the requested records in its own database, and the jail has fulfilled its statutory obligations by agreeing to produce the records for a reasonable fee for a commercial user as contemplated by KRS 61.874(4)(c)1. and 2.
Mr. Prall acknowledges that his intended use of the requested records will result in "a profit either through commission, salary, or fee." KRS 61.870(4)(a). He does not object to the imposition of a reasonable fee for producing copies based on the factors found at KRS 61.874(4)(c)1. and 2., but objects to the laborious reproduction process the Hart County Jail proposes to use and the resulting costs that he must absorb, suggesting that the records can be more economically and efficiently obtained through JailTracker. KRS 61.874(4)(c)1. and 2. provides that a public agency may impose a reasonable fee on persons who intend to use nonexempt public records for commercial purposes "based on one or both of the following":
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
The jail focuses on the staff cost associated with reproducing the requested records in arriving at its proposed fee and documents how it arrived at that fee. The actual cost per record breaks down to just under $ 7.00 for approximately thirty minutes of staff time. Absent proof that the amount of staff time required to produce the records from "several areas" within "its own electronic database" is artificially inflated, we are not prepared to conclude that the proposed fee is unreasonable. (Emphasis added.) Bearing in mind that Mr. Prall requested records from the Hart County Jail, that he acknowledges that the records will be used for a commercial purpose, and that the jail has agreed to produce the records for a reasonable fee, we affirm the jail's position and find that it did not subvert the Open Records Act, short of denial of inspection, by imposing excessive fees.
To minimize its own burden, and reduce the cost to the requester, the Hart County Jail has a second option, per KRS 61.874(3), to develop a query to extract the data Mr. Prall requests, incurring a one time cost that it may pass along to the requester, and thereafter utilize the query to tailor the format to meet any future requests. KRS 61.874(3) thus provides:
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 group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
In interpreting this provision the Attorney General has, since 1995, 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." See, e.g., 95-ORD-82; 96-ORD-133; 98-ORD-151; 99-ORD-68; 02-ORD-148; 03-ORD-214; 05-ORD-129; 06-ORD-148; 07-ORD-162; 09-ORD-197; 11-ORD-085. In general, these decisions were premised on the assumption that the agencies had no pre-existing query, filter, or sort capable of extracting the specific information the requesters sought. In such cases:
Extra programming may be necessary to create the records to fulfill the open records request. In these cases where the data requested is not contained in a pre-existing query, filter, or sort, the request would be considered non-standard. If the agency chooses to fill the request, the agency can charge a fee to recover staff time and programming costs the first time the request is made. Subsequent requests for the same data would be considered a standard request since the query, filter, or sort then exists and no additional programming would be necessary to satisfy the request.
"Guidelines for Responding to Open Records Requests for Public Records in a Database, " p. 4. 5
As a third option, the jail may decline to tailor the records to satisfy Mr. Prall's request for selected data from its own database whether by manual retrieval or development of a query capable of extracting the data. As noted, KRS 61.874(3) does not require the jail to honor a request for records in a specially tailored format. Under these circumstances, however, the jail must be prepared to afford him access to its entire database in a format that preserves relational context and content. The referenced "Database Guidelines" recognize "the potential problems that may occur if the data received is simply raw data without the necessary components of the entire database. " "Guidelines" at 4. The guidelines offer suggestions for producing a database in its entirety, and a copy is attached. If the Hart County Jail elects to deny future requests for similar records in a specially tailored format, it is obligated to produce its own database, in its entirety, after appropriate redactions are made for statutorily protected information such as Social Security Numbers. See, e.g., 11-ORD-085 and authorities cited therein. Because the requested records largely consist of nonprotected information, the jail does not have the option to deny the request but must choose one of these three options. See, e.g., 12-ORD-137 (enclosed) and authorities cited therein.
We are aware of no legal requirement that the Hart County Jail minimize the cost to Mr. Prall of obtaining the records identified in his request by "obtain[ing a report] from JailTracker" rather than "creat[ing] its own report." In past open records decisions, this office has rejected agency attempts to abandon open records duties by outsourcing records maintenance and retrieval functions to private vendors. 11-ORD-025, p. 2. Thus, in 09-ORD-020 we declared that "a public agency cannot, by means of a contract with a private company, deprive records of their public character" or otherwise evade its statutory duties. See also 10-ORD-037 and 10-ORD-084. In the latter decision, the Attorney General admonished the agency's attempt to "place records effectively out of reach of the general public behind a technological barrier that imposes costs in excess of those permitted by KRS 61.874(3)." 10-ORD-084, p. 8. Going one step further, in 11-ORD-025 we declared that if a public agency contracts with a private vendor for data management services, and must rely on the vendor to fulfill its open records duties, the agency should "include a provision in the contract to facilitate compliance with the requirements of the . . . Act" and prepare itself to bear any costs associated with compliance. 11-ORD-025, p. 3.
These decisions are distinguishable from the appeal before us in two significant respects: first, the responding agencies effectively abandoned control of their records to private vendors, and, second, the requesters' intended use of the records sought was noncommercial. The agencies could not fulfill their duty under law without incurring "costs in excess of those permitted by KRS 61.874(3)" for noncommercial use of public records. The impermissible costs to which we referred were those associated with retrieval and production of records by private vendors providing data management services that would not have been incurred if the agencies maintained control of their public records.
This appeal presents the converse of the facts giving rise to 09-ORD-020, 10-ORD-037, 10-ORD-084, and 11-ORD-025. The Hart County Jail maintains control of the requested booking records and stands ready to fulfill Mr. Prall's request. Because Mr. Prall certifies a commercial purpose in requesting the records, he can properly be assessed staff costs for production of the records. As long as the jail accepts and implements this duty in a manner consistent with the requirements of the Open Records Act, we can assign no error. Whatever its contractual relationship with JailTracker, and whatever the scope of JailTracker's records management obligations under that contract, the Hart County Jail retains custody and control of its records and cannot be compelled to enlist the aid of JailTracker in order to fulfill its statutory duties notwithstanding the fact that to do so would minimize its own burden and, perhaps, the costs associated with production of the requested records.
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:
Kyle PrallKeith RiodanMike Nichols
Footnotes
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