In 1987, a gallon of gas cost 89 cents. Michael Jackson’s Bad album was at the top of the charts. Fox Broadcasting made its primetime TV debut. And the big moves in technology included the advent of the disposable contact lens and the first criminal conviction using DNA.
It was a big year in computers, too. That’s because that same year a young Bill Gates appeared, in dark-rimmed glasses and tie, to roll out Microsoft Excel in front of a crowded room and cameras. This rollout is now so ancient by technology standards that the History Channel carries the relic in its Invention of the PC series. And what makes this bit of trivia relevant to Redacted this month is that 1987 was also the year of the Kenney letter.
Never heard of it? Me neither.
Not until a few weeks ago, anyway, when, in a dustup over access to data at Oregon Housing and Community Services, I realized that this 28-year-old letter underpins our access to open data in Oregon.
Like a lot in Oregon Public Records Law, it’s a bit of a rabbit hole. But the gist is this: Oregon law guarantees access to machine readable or electronic data, if available, under ORS 192.440(3). That means if you’ve got something in a database, and someone asks for it that way, or in the raw, you have to give it over.
Except that’s not how it plays out in Oregon. And that’s because of the Kenney letter.
At the time of its writing, Jim Kenney was a supervisor of the Urban-Renewal Section at the Oregon Department of Revenue. The issue that presented itself to him at the time was whether appraisal data managed by the Lane County Department of Assessment and Taxation was a public record. The Oregon Attorney General’s Office, asked to weigh in, sent Kenney an advisory opinion saying, essentially, if you’ve got a computer program that generates records, those records are public, as is the underlying data. However, you’re not required to provide new records if you have to use a computer program to create them.  In those days, assessors were wrangling with a duo of computer programs known as ATCOMP and ATSTAK, which – I’m not kidding here – processed real estate data stored on magnetic tape.
Now, 28 years later, this is the only legal opinion we have regarding the availability of open data in Oregon. References to it appear on page 7 and 8 of the current Attorney General’s Public Records and Meetings Manual. And when access to data is in dispute, it’s this letter that everyone turns to before initiating what’s become a standard balancing test: Does the requested data already exist? Or does accessing it require the public body to create new information using its computer programs, or create a new program to extract the data? 
It’s silly for two reasons. First, because all data that is collected exists, regardless of how it is stored. And second, because a small fact omitted from this test since 1987 is that ATCOMP and ATSTAK weren’t data retrieval systems at all. They were computer programs that applied algorithms to the underlying data to develop appraisals for properties.
Nevertheless, the balancing test exists. And the result is that we now have a lot of public officials declaring data unavailable, when in fact raw data can be exported from most public databases with a couple clicks of a mouse.
When I think of this in its cartoon version, Dilbert does come to mind. Legions of people sitting in cubes staring slack-jawed at data screens, painfully navigating to everything except the export button.
I wish it were really funny. But my strong feeling is that we have a lot of obstruction masquerading as computer illiteracy in this state. Or maybe we have just have a lot of computer illiteracy, destined to flourish until our right to open data is enforced to a present-day standard. Either way, the state of Oregon doesn’t have a lot to be proud of in this regard.
Twice in the last five months, I’ve requested open data from public agencies. And twice I’ve gotten responses I would describe as absurd.
In one, I was told it would cost $28 an hour to staff a person to manually extract information from a database, a rate that would have amounted to thousands of dollars. (A public official working with the same data in another office responded to most of the request in less than two hours and for free.) In the second request, Oregon Housing and Community Services, which has already demonstrated it can export data to Microsoft Excel and to PDFs, declared, with the help of an attorney, it would need to “create a new computer program” to respond to my request because the way I requested the information “is not how the data is organized currently in the database.”
One can’t help but turn to page seven of the Public Records and Meetings Manual and see the cheat sheet for that denial right there, courtesy of the Kenney letter.
It’s time to burn that thing.
When the Kenney letter was written, the dominant technology platform was the IBM Personal Computer with a 3.5-inch diskette drive. Apple had just released the GUI to the market. And the home computer itself was barely 11 years old. Because the primary computer languages were BASIC and MS-DOS, computers were still clumsy and hard to use. And Bill Gates was only just beginning to share his vision for Microsoft Excel, saying at its launch, “If you brought that into a meeting, you could get your point across more quickly and the information would just look a lot better.”
Twenty-eight years later, Excel is the dominant data retrieval and manipulation tool in our technological wheelhouse. Oregon governments make frequent use of it. It can and does export data in the raw, as does likely every other data retrieval tool in use in Oregon government.
And yet the Kenney letter lives.
Thanks to this most recent denial from Oregon Housing and Community Services, I’ve used my appeal right to ask the Oregon Attorney General to set aside the Kenney letter, and to develop a new open data standard based on 2015 technology.
I’ll keep you posted on how it goes.
ORS 192.440(3) reads, “If the public record is maintained in a machine readable or electronic form, the custodian shall provide a copy of the public record in the form requested, if available.”
The exact language from the Kenney letter is this: “When a public body uses a computer program to generate appraisal information on real property, the records generated are public records. The Public Records Law requires public bodies to make available nonexempt information and records, but does not require a public body to provide information that does not exist in the public body’s records or database. The appraisal information on a particular property does not exist until the program is applied to generate that appraisal, and the Public Records Law does not require the public body to create that information.” Letter of Advice (OP-6126), June 1, 1987
The Attorney General’s Public Records and Meetings Manual, page seven, reads, “The distinction between disclosing an existing record and creating a record is especially important in relation to computer-stored data. Public bodies at every level of government use computers extensively. Computer data and printouts generated for use by the public body are public records. But, a public body is not required to create new information using its computer programs nor to create a new program to extract data in a manner requested by the public.”
 The Kenney letter reads, “… the ATCOMP program produces information that, before application of the program to a subject property, does not exist as a public record. That is, the program adjusts the sales prices of six comparable properties to the subject property, and produces a printout showing those adjustments. Before the computer (is) run, those adjustments do not exist anywhere in the county’s public records. Because those adjustments do not exist before the ATCOMP run, they are not public records.” More excruciating detail about the computing powers of ATCOMP and ATSTAK is in the letter itself.