AG says KSP can't choose not to sell information

The Attorney General's office has ruled that the Kentucky State Police violated the Open Records Act by releasing information from its Collision Report Analysis for Safer Highways database to two private entities while refusing to release the same data to another.

In this appeal, the focus is whether or not the Kentucky State Police violated the Open Records Act in denying Capitol Publishing President James Donato's April 19 request for an electronic data extract from the CRASH database for a period from March 1 until April 18.

After examining the facts, the AG's office determined that the denial constituted a violation of the Act.

In a letter dated April 25, KSP Records Custodian Mary Ann Scott denied the request from Capitol Publishing.

Scott said that Donato's request fell "outside the scope of the Open Records Act and that the database contains confidential information exempt from public disclosure" under state law.

Scott also noted that KSP had recently denied Donato's request to enter into a contract for the purchase of extracts from the CRASH database and that litigation is currently pending in which KSP has argued that Donato's company, Capitol Publishing, is "not a newsgathering organization" as defined by state law.

Donato initiated the appeal, asserting that the requested information resides in existing public record, the database currently maintained by KSP and the state police currently provides the same data to two other private entities - Carfax Inc. and Experian.

Because KSP provides this information to other entities, Donato contends the state police are undermining its own argument that the database contains information at that can't be released on grounds of confidential information.

After further correspondence with the AG's office, KSP disputed Donato's assertion that his request does not necessitate the creation of a record, noting that data extracts are provided to Carfax and Experian on a quarterly basis "pursuant to agreements in which both entities agreed that use of the CRASH data shall be lawful and shall conform to (state law)."

KSP maintained that neither the Open Records Act or any other state law or agreement requires the state police to compile data for Capitol Publishing because "there is no indication that the provision of date to Mr. Donato will promote public safety" and "publication of this data in his so-called weekly newspaper will not apprise a potential purchaser of problems with the vehicle."

KSP also expressed concern that the requested data "will be combined with public records from other sources, such as county court clerks, to determine the names and addresses of the individuals in collisions in the commonwealth" resulting in an invasion of privacy that state law is designed to prevent.

To help determine a ruling, the AG's office posed more questions to Scott and the KSP and determined the following:

• It is KSP's position that Donato's, Experians and Carfax's intended use of the requested data is a commercial one within the meaning of state law.

• It is KSP position that it may treat commercial requesters seeking the same data differently by honoring some requests and denying others based on its interpretation of state law. KSP contends that the use of the term "may" rather than "shall" indicates that a state agency has some discretion when records are sought for a commercial purpose.

KSP also contends that state law provides that the Justice and Public Safety Cabinet, Department of Kentucky State Police, shall be responsible for maintaining a reporting system for all vehicle accidents which occur within the commonwealth and such reports shall be used for purposes that will improve traffic safety while utilizing the collection, processing, storing and dissemination of such data and establishing procedures to insure that uniform definitions, classifications and other federal requirements are in compliance. Because KSP established the CRASH database to help meet these requirements, it also has the authority and responsibility to release any data for the improvement of traffic safety and provides discretion to the KSP as to how that should be accomplished.

In it's decision, the AG's office disagreed with KSP's position that this responsibility supersedes the requirements of the Open Records Act and said the state police violated the Act by denying Donato's request for the same data if currently provides to Carfax and Experian.

The AG's analysis turns on the express language of the Open Records Act that states " 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 nonexistent public records are requested for commercial purposes, the public agency may establish a reasonable fee and that the public agency from which copies of non-exempt public records are requested for a commercial purpose may require a certified statement from the requester stating the commercial purpose for which they shall be used and may require the requester to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a fee.

The fee would cover the cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public records along with the cost of getting or creating the public record.

To support its opinion, the AG's office said that the Kentucky Open Record Act was substantially amended in the 1994 legislative session and determined that a public agency must permit inspection and provide copies of non-exempt public records requested for commercial purposes which is defined as "the direct or indirect use of any part of a public record or records in any form, for sale, resale, solicitation, rent or lease of a service or any use by which the user expects a profit either through commission, salary or fee."

The AG also pointed out that this provision does not apply to newspapers, periodicals, radio stations or television stations.

Since the data is already provided to two other private entities through an agreement with KSP, the AG's office declared that since part of the database is being provided to any other entities willing to enter into a contract with the state police.

Click Here to go back