Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in denying a December 12, 2016, request by Carfax, Inc., through its Government Relations Director Chris Neal, for an electronic data extract 1 from the Collision Report Analysis for Safer Highways (CRASH) database for the period from November 7, 2016, through December 7, 2016. For the reasons that follow, we find that KSP's denial of Mr. Neal's request constituted a violation of the Act.
By letter dated December 15, 2016, KSP Records Custodian Emily M. Perkins denied Mr. Neal's request on grounds that Carfax was not a party entitled to obtain accident reports under KRS 189.635 and that KSP was not required to create a list that did not already exist. Carfax initiated this appeal on May 23, 2017.
The CRASH database, maintained by KSP pursuant to KRS 189.635(1), contains collision data compiled automatically when peace officers enter electronic data to create accident reports. Carfax, a corporation which provides accident history information on used vehicles to consumers for a fee, has obtained CRASH data extracts from KSP for many years. In 2002, as part of their initial agreement, KSP created a query tool to extract the data, for which Carfax paid KSP a programming fee of $ 5,000.00. A new agreement was made between KSP and Carfax to continue providing the data in 2008, after an amendment to KRS 189.635 created a more specific statutory authorization for companies such as Carfax to obtain the extracts. 2 This provision is found in KRS 189.635(6), which states in pertinent part as follows:
Except as provided for in this subsection, the department [of Kentucky State Police] shall not release accident reports for a commercial purpose. The department may, as a matter of public safety, contract with an outside entity and release vehicle damage data extracted from accident reports to such an entity if the data is used solely for the purpose of providing the public a means of determining a vehicle's accident history.
At some point between 2008 and 2016, KSP, instead of directly providing the data extracts to Carfax, began providing them exclusively through a contracted private vendor, which in 2016 was a company known as Appriss, Inc. All rights of Appriss in that contract were subsequently purchased in August 2016 by LexisNexis, Inc.
As of August 2016, KSP's vendor was charging Carfax 15 cents per vehicle extract; this fee was increased to 60 cents per extract in November 2016 by LexisNexis (later changed to 50 cents). Additionally, in November, LexisNexis stated that Carfax would be required to agree to the following terms:
a. Carfax will not use the Accident Records, or any portion thereof, to create a product or service that is competitive with LN products or services, provided this restriction shall not prohibit Carfax from using the Accident Records in the Permitted Carfax Services. [This provision was waivable if Carfax would agree to pay an extra 5% fee.]
b. During the Term, Carfax agrees that it will not contact any State Agency to encourage the State Agency to use Carfax's online crash report distribution services and/or replace any LN product or service with Carfax products or services.
When Carfax refused to accept the increased fee and these new restrictions, LexisNexis ceased providing CRASH data extracts to Carfax. Carfax therefore made its request to obtain the data extracts directly from KSP.
In its response to this appeal, dated June 2, 2017, KSP abandons the original basis for its denial of the data extracts and asserts a new set of arguments. First , KSP argues that the word "may" in KRS 189.635(6) ("The department may . . . contract with an outside entity and release vehicle damage data extracted from accident reports to such an entity" ) confers a discretion upon KSP, such that it can choose to release the data exclusively to LexisNexis and withhold it from Carfax. Second , KSP argues that the restrictive conditions imposed by LexisNexis do not prevent Carfax from using the data "for the purpose of providing the public a means of determining a vehicle's accident history," as stated in KRS 189.635(6). Third , KSP asserts that due to the "discretion" it possesses under KRS 189.635(6) regarding data extracts, "the Attorney General does not have the statutory authority to grant the relief requested by Carfax." 3
We begin with the last of these arguments, since it is concerned with the statutory jurisdiction of this office. KRS 61.880(2)(a) authorizes the Attorney General "to review a public agency's denial of a request to inspect a public record. " "Public record" is defined in KRS 61.870(2) as:
all books, papers, maps photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics , which are prepared, owned, used, in the possession of or retained by a public agency.
(Emphasis added.) A "database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 00-ORD-206. Accordingly, we find that this office has jurisdiction over this appeal. The question is whether extracts from the CRASH database are public records exempted from disclosure to Carfax by operation of KRS 189.635(6), as incorporated into the Open Records Act by KRS 61.878(1)(l), 4 which is KSP's first argument.
KRS 189.635(6) begins by providing that KSP "shall not release accident reports for a commercial purpose" except as provided in that subsection. There follow two distinct clauses, the first of which is relevant to Carfax:
The department may, as a matter of public safety, contract with an outside entity and release vehicle damage data extracted from accident reports to such an entity if the data is used solely for the purpose of providing the public a means of determining a vehicle's accident history.
(Emphasis added.) This clause confers the authority under which KSP has contracted with Appriss/LexisNexis, and under which KSP made its earlier contract with Carfax in 2008. It is likewise under this clause that Carfax asserts its own continued right to obtain data extracts from KSP. The second clause, which does not pertain to Carfax's December 2016 request, is as follows:
The department may further contract with a third party to provide electronic access to reports for persons and entities who are entitled to such reports under subsections (5) and (9) of this section.
(Emphasis added.) Under this second clause, KSP may contract with an intermediary to provide accident reports --not merely data extracts --to those who are entitled to receive them under KRS 189.635(5) ("the parties to the accident, the parents or guardians of a minor who is a party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties") or KRS 189.635(9) ("any party to litigation who files with the department a request for the report").
The importance of the distinction between these two separate authorizations cannot be overstated. The former authorizes the KSP to contract:
1. with an "entity" (such as Carfax or LexisNexis)
2. to provide data extracts
3. to it
4. for the purpose of enabling the public to access vehicle histories.
The latter authorizes KSP to contract:
1. with "a third party"
2. to provide accident reports
3. to persons or entities who are entitled to receive them
4. for purposes of subsections (5) and (9).
In the latter case, it is clear that the statute enables the "third party" to act as an intermediary between KSP and persons or entities that have a right to obtain copies of accident reports. In the former, however, the statute never suggests that a commercial "entity" with which KSP contracts (in this case, LexisNexis) would act as exclusive intermediary between KSP and another similarly situated entity such as Carfax.
In contrast with this statutory language, the 2016 memorandum of agreement between KSP and Appriss (later assigned to LexisNexis) provides in Section 5 that Appriss, in return for services provided, "shall retain all of the BuyCRASH.com 5 and BuyCRIMES.com revenue presently reimbursed to KSP for the duration of the Contract Period" for accident reports, and additionally states the following:
Further, for the duration of the Contract Period, Appriss shall have the exclusive right to sell the KSP Collision data to CarFax , Experian, and other commercial vendors that express a desire to purchase extracts of vehicle collision data with the caveat that KSP Project Manager must approve the transaction beforehand as this information is provided to commercial entities for public safety purposes only.
(Emphasis added.) Appriss, then, is represented as the clearinghouse, not only for accident reports under subsections (5) and (9), but also for data extracts under subsection (6). By this language, KSP's contract with Appriss (or LexisNexis) purports to make Carfax's access to data extracts under KRS 189.635(6) subordinate to an "exclusive right to sell [the] data" on the part of its competitor, LexisNexis. Thus Carfax, Experian, and all other such companies must purchase the data extracts, not from KSP, but from an entity with which they stand on equal footing under KRS 189.635(6), and they must do so on that entity's own terms. This exclusive intermediary relationship between one such "entity" and all the rest is not contemplated by the statute.
KSP, however, argues that KRS 189.635(6) gives it an unfettered "discretion" to provide CRASH data extracts to one of these entities and exclude all others similarly situated. We disagree with this interpretation. Although the permissive "may" in KRS 189.635(6) gives KSP the option whether to contract with outside entities for the commercial release of data extracts for the stated purpose, it does not give KSP any explicit authority, after choosing that option, to discriminate between qualifying entities.
KSP contends further that KRS 189.635 and the Open Records Act are in direct conflict and KRS 189.635 should prevail because it is more specific and was more recently amended. Statutory provisions that may appear to be in conflict, however, are to be read in harmony "so as to give effect to both sections or statutes if possible."
Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky. 1983). We believe such an interpretation is certainly possible in this case. KRS 189.635(6) is a confidentiality statute, which is incorporated into the Open Records Act by operation of the exception stated in KRS 61.878(1)(l); thus the laws can and must be read in harmony. Thus, the principles applicable to open records in general apply in this case as well. 6
It is a well-recognized principle of open records law that "the practice of selective disclosure of public records" violates the Act. 01-ORD-81. In a past appeal involving CRASH data, the KSP argued that the word "may" in KRS 61.874(4)(b) ("The public agency from which copies of nonexempt public records are requested for a commercial purpose . . . may require the requestor to enter into a contract with the agency") gave KSP the "discretion" to provide CRASH data to some commercial requestors and refuse access to others. We disagreed, stating in pertinent part:
The agency does not have discretion to refuse requests submitted by some persons or entities who intend to use the records for a commercial purpose, and honor others, where the same nonexempt records are requested.
. . . .
[If] the CRASH database is not protected from disclosure [,] then KSP violates KRS 61.874(4) when it discriminates among commercial requesters in the disclosure of data extracts.
07-ORD-153 (emphasis in original). In ruling against KSP's claim of "discretion," we contrasted the cited language with KRS 61.874(6), which expressly provided, "Online access to public records in electronic form . . . may be provided and made available at the discretion of the public agency " (emphasis added).
KRS 189.635(6), of course, differs from the language of KRS 61.874(4)(b) at issue in 07-ORD-153, inasmuch as it gives KSP an option to preserve the confidentiality of CRASH data extracts by not providing them to any commercial entity. Nonetheless, there is no principled basis for KSP, once having made the determination that disclosing data extracts is justified "as a matter of public safety," to engage in selective disclosure among similarly situated entities which seek the same data extracts for the same "purpose of providing the public a means of determining a vehicle's accident history." This similarity of Carfax's situation under the statute to that of LexisNexis is underscored by the fact that KSP, in 2008, made a similar agreement with Carfax to provide the data extracts pursuant to KRS 189.635(6). 7 Absent any suggestion that Carfax no longer has the same "purpose" it had in 2008, we find no support in KRS 189.635(6) for the preferential treatment given to LexisNexis over Carfax, which is therefore entitled to obtain data extracts by contract on equal terms with LexisNexis.
Since KRS 189.635(6) must be construed in harmony with the Open Records Act, we remind KSP of the provisions of KRS 61.874(4):
(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee .
. . . .
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
(Emphasis added.) In accordance with these provisions, the fee established by KSP for CRASH data extracts must be neither arbitrary nor excessive. If KSP, for reasons of convenience, chooses to use an outside entity as an agent for providing data extracts to other qualifying entities, that entity is likewise bound by the terms of KRS 61.874(4) and must not impose additional charges.
We note that an entity may obtain CRASH data extracts only "if the data is used solely for the purpose of providing the public a means of determining a vehicle's accident history." KRS 189.635(6). It is also unlawful under the Open Records Act to obtain a public record for a commercial purpose "if the person uses or knowingly allows the use of the public record for a different commercial purpose. " KRS 61.874(5)(b). That said, however, neither KSP nor anyone acting on its behalf may impose conditions on a qualifying entity in excess of those provided by law. See
Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) (public agency receiving request for records cannot "add a requirement not found in the statutes"). We agree with Carfax's argument that KRS 189.635(6) "does not dictate the manner in which Carfax provides [accident] information [to the public], or what specific products it may employ to meet this end." Thus, we find that the additional conditions which LexisNexis attempted to impose upon Carfax's use of the data extracts were legally unjustified.
Accordingly, we find that KSP violated the Open Records Act by its arbitrary discrimination between similarly situated entities and its refusal to agree, pursuant to KRS 189.635(6), to provide CRASH data extracts to Carfax, either directly or through its agent, for a reasonable fee. Such fee must be based solely upon the factors listed in KRS 61.874(4)(c).
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 must 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 Specifically, Mr. Neal requested a data extract consisting of the following 25 data fields:
Reporting AgencyCityVehicle ModelAirbagPoint of ImpactVehicle ColorManner of Collision Code
Crash Incident ID
County
Vehicle Year
Damage
Towing
Vehicle Reg Year
Crash Date
VIN
Vehicle Plate
Extraction
Unit Number
Sequence of Events
Report Number
Vehicle Make
Plate State
Fire
Vehicle Type
Damaged Areas
2 This amendment was enacted after the issuance of 07-ORD-153, in which we stated that KRS 189.635(1) could not be properly construed to authorize the release of CRASH data extracts to commercial entities such as Carfax.
3 KSP adds that its agreement with LexisNexis "terminates on June 30, 2017," and "[e]ffective July 1, 2017, no company shall have an exclusive right to sell vehicle collision data extracts from the CRASH database." Since June 2, 2017, we have received no communication from KSP as to whether the agreement with LexisNexis has been renewed; a similar exclusive agreement has been concluded with another private entity; or KSP is now providing data extracts without an intermediary. As neither Carfax nor KSP has indicated to us that the status of this matter between the parties has changed, we decide this appeal on the facts in the record.
4 Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are exempted from disclosure by KRS 61.878(1)(l).
5 BuyCRASH.com is a website, currently controlled by LexisNexis, that offers "the ability to purchase police crash reports from any agency across the nation." (BuyCRASH.com homepage.)
6 We are mindful, as always, that "exceptions [to the Act] provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
7 In addition, prior to the 2008 statutory amendment, KSP made its initial agreement with Carfax in 2002 on the purported grounds that it would "improve the traffic safety program in the Commonwealth" pursuant to KRS 189.635(1). 07-ORD-153.