Request By:
Ms. Harriett Black
City Clerk
City of Russell Springs
P.O. Box 247
Russell Springs, Kentucky 42642
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Alan D. Twisselman has appealed to the Attorney General's Office pursuant to KRS 61.880 your denial of his client, A. B. Hare's, request to inspect certain records in the possession of the City of Russell Springs. Those records are identified in Mr. Twisselman's August 16, 1991, letter to your office. The request letter contains an extensive "shopping list" of records pertaining both generally and specifically to the annexation of Mr. Hare's property.
You denied Mr. Hare's request in a letter dated July 15, 1991, relying on KRS 61.872(5). In support of this position, you stated:
In reply to your letter received today, I am denying your request on the grounds that it places an unreasonable burden to produce voluminous public records.
This single statement represents your response in its entirety.
Mr. Twisselman takes issue with your position, arguing that denial of KRS 61.872(5) must be sustained by clear and convincing evidence, and that you have failed to sustain that burden. He asks that we review the denial of his client's request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that your actions were not consistent with the Act.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that the City of Russell Springs improperly denied Mr. Hare's open records request. KRS 61.872(5) provides:
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.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency then invokes KRS 61.872(5) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p.3:
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 it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. . . .
Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(5). The agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
In your letter of denial, you indicate that Mr. Hare's request places an unreasonable burden on your office. You do not, however, describe with any degree of specificity the volume of records implicated by the request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. Simply stated, your denial consists of little more than an invocation of the statute. We therefore conclude that the City failed to sustain its burden of proving, by clear and convincing evidence, that the application places an unreasonable burden on it to produce voluminous records. Accordingly, we find that the City's actions were inconsistent with the Open Records Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Alan Twisselman. The City of Russell Springs has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).