Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration and Official Records Custodian
Lexington Campus
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
John Fritz has appealed to the Attorney General pursuant to KRS 61.880 your denial of his open records request to inspect and copy various documents.
Mr. Fritz delivered an open records request to you on December 11, 1990. Mr. Fritz described the documents sought for inspection and copying as follows:
1. All letters , memos, notes, phone messages, minutes and correspondence FROM Hon. Antonin Scalia (and his agents and assigns) written TO Hon. Todd B. Eberle, Barbara Drake or the Dean of the UK College of Library (and all of their agents and assigns) regarding 'Speaker expenses' and any other expenses for the 1988 Swinford Lecture or the Judge Mac Swinford Lecture Series (Justice Antonin Scalia appeared as the guest speaker for 1988) . . . .
2. All letters , memos, notes, phone messages, minutes and correspondence TO Hon. Antonin Scalia (and his agents and assigns) FROM Hon. Todd B. Eberle, Barbara Drake or the Dean of the UK College of Law (and all of their agents and assigns) regarding 'Speaker expenses' and any other expenses for the 1988 Swinford Lecture or the Judge Mac Swinford Lecture Series (Justice Antonin Acalia appeared as the guest speaker in 1988).
3. The cancelled check in the amount of $ 230.13 used to pay Speaker Expenses listed in Exhibit A attached herewith.
4. An itemized list of what is included in the 'Speaker Expenses' in the amount of $ 230.13 used to pay Speaker Expenses listed in Exhibit A attached herewith.
5. Those several cancelled checks, the aggregate total of which equals $ 230.13 and which were applied towards Speaker Expenses listed in Exhibit A attached herewith.
6. The current procedures or protocol for obtaining access to documents and information in the possession of UK, and its agents and assigns (notwithstanding any prior similar request, this KORA request seeks another copy of this information/document).
7. Electronic ASCI diskette copy of UK's long distance phone bills for November 1 - December 1, 1990.
On behalf of the University of Kentucky, in your capacity as official records custodian, you denied this request by letter dated December 14, 1990. In denying this request you stated as follows:
I am denying your request pursuant to KRS 61.872(5). I am of the opinion that your request is motivated by a desire to place an unreasonable burden on this institution in producing voluminous public records. I am further of the opinion that your intent is to harass and disrupt the operation of my office and, in part, this educational institution.
Your letter contained a lengthy explanation of how this statutory exemption applied to the records withheld. Your eleven page denial letter included an extensive review of the unsuccessful litigation by Mr. Fritz against various individuals and entities including, but not limited to, employees of the University of Kentucky Medical Center, Departments of the University of Kentucky, a United States Attorney, and the Kentucky Supreme Court. Your denial letter also provides a detailed chronology of approximately 13 open records requests made by Mr. Fritz or his attorney on his behalf to the University of Kentucky between September 13, 1989, to December 11, 1990. These requests were frequently repetitious, seeking inspection or copying of documents previously sought for inspection and copying. Some of these prior requests sought inspection of voluminous records involving as many as 5,000 documents requiring in some instances several days of staff time to locate and retrieve. Your denial letter also recites multiple instances where Mr. Fritz engaged in disruptive behavior during his inspection of records that were produced by the University of Kentucky including accusations against employees and threats of legal action against you and your staff. A copy of your denial letter was forwarded to this Office.
Mr. Fritz filed an open records appeal with this Office by letter dated February 18, 1991, pursuant to KRS 61.880 and by separate letter of the same date requested an attorney general opinion pursuant to KRS Chapter 15 and 40 KAR 1:020 Section 3. Mr. Fritz raises three issues in his request for an attorney general opinion pursuant to KRS Chapter 15. These issues are as follows:
ISSUE 1 : Whether UK may require a person to hand-deliver an open records act request instead of mailing it (see provisions of the Open Records Act (KRS 61.872-61.884).
ISSUE 2 : Whether UK may deny access to, inspection and copies of public records on the basis that the person making the request is exercising a constitutionally protected act(s) [i.e., suing UK in a matter entirely unrelated to the open records act or any open records requests made; requesting documents from other state agencies; filing appeals in the state appellate courts and in the U.S. Supreme Court].
ISSUE 3 : Whether a citizen has a right to access and copy public records in the possession of the UK pursuant to the open records act and under the following Amendments to the U.S. Constitution:
a) The right to freedom of speech and to petition the government for a redress of grievances under the FIRST AMENDMENT;
b) That no person shall be 'deprived of life, liberty or property, without due process of law . . .' under the FIFTH AMENDMENT;
c) The enumeration in the Constitution, of certain rights, 'shall not be construed to deny or disparage others retained by the people' under the NINTH AMENDMENT;
d) '. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws' under Section 1 of the FOURTEENTH AMENDMENT.
Mr. Fritz' open records appeal pursuant to KRS 61.880 consists of four pages wherein he gives various reasons and arguments concerning why the denial was inconsistent with the open records law. This four page open records appeal letter contains various allegations against you and your staff, including a statement that your denial letter is a "maliciously false lie . . . containing patently false and misleading statements . . . ."
OPINION OF THE ATTORNEY GENERAL
KRS 15.025(4) provides this Office with statutory authority to issue written opinions when requested in writing by any individual. This statute provides in part as follows:
The attorney general, when requested in writing, under KRS 15.020, shall furnish such opinions subject to the following conditions:
(4) When in the discretion of the attorney general, the question presented is of such public interest that an attorney general's opinion on the subject is deemed desirable and when provided for by regulation pursuant to the provisions of this section.
This Office, in the exercise of the discretion of the Attorney General, declines to render an attorney general's opinion on the questions or issues presented by Mr. Fritz in his request for an attorney general opinion because the questions or issues presented are not of such public interest that an attorney general's opinion on the subject is deemed desirable.
This Office has reviewed the denial by your office and is of the opinion that the University of Kentucky acted in a manner consistent with the provisions of KRS 61.870 to 61.884 by denying inspection and copying of records pursuant to the statutory exemption of KRS 61.872(5). This statute provides as follows:
If the application [for an open records inspection] 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.
KRS 61.872(5). [Bracketed language added.]
Your office has provided clear and convincing evidence that the request or application by Mr. Fritz placed an unreasonable burden in producing voluminous public records. This opinion or conclusion is not based upon the evidence of unsuccessful litigation by Mr. Fritz. It is based solely on the clear and convincing evidence that he engaged in making an excessive number of open record requests involving essentially the same public records which have previously been made available to Mr. Fritz for inspection and copying. Furthermore, there is clear and convincing evidence that these requests are overly broad and "blanket in character," thereby placing an unreasonable burden upon the agency to search and retrieve the requested documents for inspection. OAG 76-375.
This Office further concludes that you have provided clear and convincing evidence that the repeated requests by Mr. Fritz are intended to disrupt other essential functions of your agency and therefore you acted consistently with the open records law by denying inspection on this ground pursuant to KRS 61.872(5). Mr. Fritz clearly made repeated requests as evidenced by his approximately 13 open records requests from September 13, 1989, to December 11, 1990, and these requests were frequently seeking to inspect and copy essentially the same documents. You presented clear and convincing evidence that Mr. Fritz engaged in disruptive conduct in the past when he inspected or copied public records that were made available to him.
This Office has rarely upheld an agency denial based exclusively upon the statutory exemption of KRS 61.872(5). However, the instant open record request and appeal and prior requests represent a flagrant abuse by Mr. Fritz of the open records law which has produced an intolerable burden upon your agency to satisfy his unreasonable open records requests and has clearly disrupted essential functions of your agency. This cannot and should not be tolerated and this Office has no difficulty in affirming your denial in this instance.
Your denial letter referred to OAG 76-375 in discussing prior open records requests made by Mr. Fritz. Enclosed is a copy of OAG 81-52 which clarifies and reaffirms OAG 76-375. The official custodian of public records may require written application describing the records to be inspected. KRS 61.872(2). This written application may be submitted either in person or by mail and any suggestion contained in OAG 76-375 which is contrary is hereby overruled. However, "[a] public agency need not supply a copy of a record which the requester has not inspected . . ." and may require the requester to appear in person to inspect the public records before making a copy available. OAG 81-52.
John Fritz may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection are maintained pursuant to KRS 61.880(5).