One of the most common questions public officials ask is: when can an agency deny an open records request because it is overly burdensome or because it constitutes harassment?
It is also one of the most difficult questions to answer since the law offers little in the way of guidance to officials in making the determination.
The statute itself — KRS 61.872(6) — provides that if a records request "places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt essential functions of the public agency," the agency can deny the request if it can justify the denial "by clear and convincing evidence."
The Kentucky attorney general regularly reviews appeals to his office seeking a determination whether an agency properly denied a request based on unreasonable burden. Appeals from denials based on a requester's intent to disrupt essential functions are far more unusual.
Because the statute requires "clear and convincing evidence" of an unreasonable burden, the attorney general rarely affirms agency denials on this basis. He almost never affirms denials based on intent to disrupt essential functions.
As the Kentucky Supreme Court observed in Commonwealth v. Chestnut, "a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency much show the existence of the unreasonable burden by 'clear and convincing evidence.'"
Chestnut was an inmate incarcerated over many years and at many correctional facilities. He requested a copy of the nonexempt records in his inmate file. The Court affirmed his right to the records.
The Court acknowledged that "the task of determining what materials are properly subject to an inmate's open records request is tedious and time consuming work," but concluded that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden."
The Court rejected a series of arguments advanced by the Department of Corrections in this 2008 case which Chestnut won at every level, unrepresented, until his case reached the Supreme Court and the Court appointed him counsel .
The Court indicated what does not constitute an unreasonable burden. Unfortunately, it gave no indication what does constitute an unreasonable burden.
This December 2018 analysis of state laws governing burdensome and vexatious request references Kentucky (perhaps because it's author, National Freedom of Information Coalition Executive Director Daniel Beverly, is a Kentucky native with a keen interest in Kentucky's law).
His article, entitled "Beast or Burden: Nuisance,vexatious, or burdensome public records requests," suggests the broad scope of the problem that arises when the public's right to know conflicts with the agency's ability to effectively execute its public functions.
