Request By:
Roger Cole
Official Custodian of Records
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Gerald T. Kemper, Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of his requests for information and to inspect and copy various documents in the custody of the Transportation Cabinet.
Beginning on August 12, 1989 and ending on August 17, 1989 Mr. Kemper filed with various officials of the Transportation Cabinet fifteen letters representing requests for information and to inspect and copy various documents and records. You wrote Mr. Kemper on August 15, 1989 and advised that the first five requests had been directed to you for handling and that the information was being gathered. You also advised Mr. Kemper in a letter dated August 16, 1989 that his request pertaining to certain Transportation Cabinet officials and the financial disclosure provisions would have to be directed to the Executive Director of the Financial Disclosure Review Commission in Corbin, Kentucky.
You subsequently prepared a letter to the Attorney General, dated August 22, 1989, a copy of which was sent to Mr. Kemper, in which you stated in part as follows relative to Mr. Kemper's requests:
"Having received 15 such requests and in anticipation of receiving ten more, the Cabinet is hereby denying Mr. Kemper's requests under the Open Records Law and is requesting an opinion of the Attorney General."
Your letter of August 22, 1989 to the Attorney General also stated that Mr. Kemper has given notice of an intent to file a legal action against the Transportation Cabinet.
Your letter maintains that the Cabinet is seeking clarification on two points. First, you are concerned with providing documents which may be used in a subsequent legal action against the Cabinet. Second, you maintain that KRS 61.872(5) does not require the Cabinet to produce records where the intent is to disrupt the operations of the Cabinet by repeated requests. You state that the number, detail and nature of the requests received from Mr. Kemper have placed an unreasonable burden on the Cabinet and it is unable to process and respond to the requests.
Mr. Kemper sent this office a document, dated August 23, 1989, which we have construed to be an appeal of your decisions relative to his requests.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880, in part, sets forth the duties and responsibilities of a public agency, including, of course, the Transportation Cabinet, concerning requests received under the Open Records Act (KRS 61.870 to KRS 61.884). Subsection (1) of KRS 61.880 requires that a public agency, upon the receipt of a request for records under the Open Records Act, respond in writing to the requesting party within three working days of the receipt of the request, as to whether the request to inspect the documents will be granted.
There is no statutory authority to postpone or delay the agency's written response and there is no duty or obligation on the Attorney General's Office to advise an agency as to how to handle a request to inspect documents which it has actually received. Once the agency receives a request to inspect documents it is required to respond pursuant to the provisions of KRS 61.880(1).
Note also that KRS 61.880(2) authorizes the person who requested the documents and whose request is denied by the public agency to appeal to the Attorney General. The public agency, under the Open Records Act, has no right of appeal to the Attorney General.
In connection with the public agency denying a request to inspect documents because of the use to which information from such documents might be put, we first direct your attention to OAG 81-345, copy enclosed, at pages 2-3. As noted, KRS 61.872 states in part that all public records shall be open for public inspection by any person, except as otherwise provided. Furthermore, any person shall have the right to inspect public records during the regular office hours of the public agency.
A person requesting to inspect public records does not have to state any reason as to why he wants to see those records and he does not have to show or establish any particular interest in the subject matter of those records. See OAG 77-151, copy enclosed, at page two. Thus, the purpose of the requesting party in wanting to see the records in question has no bearing on whether the public agency should grant or deny his request.
KRS 61.882(4), dealing with the circuit court's handling of an appeal under the Open Records Act, provides in part as follows:
"Courts shall take into consideration the basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others . . . ."
Thus, the public agency cannot deny a request to inspect records because information from those documents may or will be used in some future legal action. If a legal action is in process when the request to inspect records is made, the public agency may be able to invoke the exception to inspection set forth in KRS 61.878(1)(f). Otherwise, a decision not to make records available for inspection because of the possibility or even the probability of a legal action at some future time is a violation of the Open Records Act.
You have also relied upon KRS 61.872(5) to support your denial of the request and that subsection states:
"If the application places an unreasonable burden in producing voluminous 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. However, refusal under this section must be sustained by clear and convincing evidence. " (Emphasis supplied by the undersigned.)
In OAG 77-151, copy enclosed, at page three, we said in part as follows:
"Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection . . . ."
In this particular situation the public agency has merely invoked the provisions of KRS 61.872(5). Its refusal has not been documented by clear and convincing evidence. The burden is on the public agency to demonstrate, by more than merely referring to fifteen requests, that those requests either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency.
Therefore, it is the opinion of the Attorney General that the public agency has violated the terms of the Open Records Act and improperly handled the requests submitted to it in that it did not respond timely and in the proper manner to all of the requests submitted, it based its denial in part upon its belief as the use to which some of the information might have been put had it been made available for inspection, and it relied upon an exception to inspection which requires that it be supported by clear and convincing evidence and such evidence was not produced.
As required by statute, a copy of this opinion is being sent to the appealing party, Gerald T. Kemper, Esq. If either or both of the parties to this appeal is dissatisfied with the opinion rendered, it may be challenged in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.