Note: it is unclear whether this legal action was initiated by open records requester Roger Ford (to enforce the attorney general's 2018 open records decision) or by Pike County Clerk Rhonda Taylor (to assert a claim of Ford's intent to disrupt her office's essential functions). It is the first report of the lawsuit that has received widespread attention and begins somewhere in the middle of the case.

Pike County officials find themselves at the center of an open records dispute in the courts in which they claim that repeated requests by a Pike County resident constitute harassment.

Pike County Clerk Rhonda Taylor alleges that she is being "tortured" by requests for records filed by Roger Ford. Taylor defeated Ford in his unsuccessful bid to unseat her in 2018. She maintains that his open records harassment began prior to the election.

Ford, on the other hand, argues that his requests do not constitute "harassment," "disruption," or "torture." Instead, he expects Taylor, "like all public officials, to comply with the law."

He notes that in 2018 he received a favorable open records decision from the attorney general and that Taylor's opportunity to raise these issues in the courts ended thirty days after that decision was issued and the deadline for filing a circuit court appeal expired.

In support of her position that Ford's requests constitute harassment, Taylor notes that she "has already copied all of the documents once." Ford replies that this proves "it is not a burden to ask for an additional copy."

Only one open records decision involving these parties appears on the attorney general's website, and it cannot be described as a resounding victory for Ford or Taylor. Apparently, he submitted four requests to Taylor between August 16 and 31, 2018, and Taylor responded to each by email.

On appeal, Ford provided the attorney general with his August 16, 20, 22, and 30 requests. On August 16, he requested "six categories of 'financial and accounting information' such as 'check images, government forms, court orders, court minutes, and other supporting documents and memoranda.'" But he only provided the OAG with Taylor's August 20 response, intentionally or unintentionally omitting the rest. The attorney general therefore refused to consider Ford's remaining requests (which can objectively be described as very broad).

The AG held that although Taylor issued a timely response to the August 16 request in which she advised Ford that she was "working on" his request, she erred in failing to advise him the specific date on which the records would be available. Neither Ford nor Taylor was entirely vindicated by the open records decision.

https://ag.ky.gov/orom/2018/18ORD188.doc

It is unclear whether Ford made subsequent requests, but at some juncture Taylor petitioned the circuit court for relief from an alleged pattern of harassment by Ford.

The term "harassment" does not actually appear in the open records law. Instead, KRS 61.872(6) states that if a request "places an unreasonable burden in producing public records *or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency,* the official custodian may refuse to permit inspection of the public records or mail copies thereof." Denial of a request under this statute must"be sustained by clear and convincing evidence."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750

In assessing whether a request is intended to disrupt an agency's essential functions, the OAG has consistently recognized that the number of requests submitted — coupled with the duplicative nature of the requests and a requester's bad faith as evidenced in his or her failure to pick up and/or pay for copies of records requested — may be indicative of an intentionally disruptive request.

It's an extremely difficult judgment to make, particularly in light of a 1977 attorney general's opinion recognizing that "public agencies should only invoke the excuse of harassment in extreme and abusive circumstances" and that the legislature intended public agencies to "exercise patience and long-suffering in making public records available for public inspection."

In an opinion issued the year before, the attorney general recognized that "state agencies and employees are the servants of the people, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time."

Striking a fair balance between these competing positions is never easy.

Because an intent to disrupt essential functions is a fact intensive determination, it is probably best resolved by a court. Nothing precludes the county clerk from seeking a judicial determination on this issue. She is not — after all — belatedly appealing the 2018 open records decision resolving Ford's open records dispute with her partially in her favor. The issue she raises here was not addressed in that decision.

But the Pike Circuit Court finds *itself* in the difficult position of deciding whether Taylor has failed to exercise adequate "patience and long-suffering" or Ford has made" extreme and unreasonable demands on her time." Not an easy task.