Request By:
Mr. Paul V. Guagliardo
Assistant Director of Law
Department of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Jesper Christensen has appealed to the Attorney General pursuant to KRS 61.880 your denial of his February 13, 1991, request for access to documents variously described as "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED (Louisville/Jefferson County Office of Economic Development) and . . ." the campaign for Greater Louisville, Chamber of Commerce, and Office of the Mayor, and "notes, memos, correspondence and other types of materials that might provide information about the exchange of ideas and facts regarding business retension (sic) policies and practices . . .," with specific reference to UPS and the airport expansion projects, for the period from January through July, 1988.
In response to his initial request, you instructed Mr. Dan Bevarly, of the Office of Economic Development, to contact Mr. Christensen to determine what specific information he wished to review. Although there is some dispute about the parties' subsequent communications, it appears that despite repeated efforts, and an offer to arrange a formal meeting to discuss the matter, Mr. Bevarly was unable to ascertain what records Mr. Christensen's request encompassed.
In a follow-up letter, dated March 7, 1991, Mr. Christensen indicated that he was ". . . interested in all items pertaining to UPS and the airport expansion (LAIP and its pre-planning stages) . . . [and wished to inspect] . . . general files of relevance, as well as pertinent personal files (those of Howard Gudell, for instance)." (Emphasis in original.) He stated that his purpose in requesting the documents was ". . . to investigate the process of decision making in the area with respect to business retension (sic) and economic development, in particular the exchange of ideas [between] governmental agencies and the business community."
On March 13, 1991, you formally denied Mr. Christensen's request, relying on KRS 61.872(5). You stated that the request:
places an unreasonable burden in producing potentially voluminous records. We stress 'potentially' because it would clearly be unreasonable to expect anyone to search each and every OED file to ascertain whether there is contained therein a note, memo, piece of correspondence or 'other type of material' that 'might provide information about the exchange of ideas and facts.'
In addition, you cited KRS 61.878(1)(g) and (h), noting that "most if not all" of the information requested is exempt as "preliminary drafts and notes, intra and interagency communications, correspondence with private individuals, preliminary recommendations and memoranda in which opinions may have been expressed or policies formulated or recommended."
Finally, you offered OED's continued cooperation in attempting to identify, locate and provide non-exempt materials to Mr. Christensen.
In his letter of appeal to this Office, Mr. Christensen disputes a number of statements in your letter of denial, and maintains that you have allowed him access to "brochures, annual reports and other such materials" only. He rejects this offer of "official propaganda," and instead insists on his ". . . legal right to examine documents of relevance to broad public issues."
OPINIONS OF THE ATTORNEY GENERAL
It is the opinion of this Office that the Louisville/Jefferson County Office of Economic Development properly denied Mr. Christensen'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.
While the purpose and intent of the Open Records Act is to permit the ". . . free and open examination of public records . . ." the right of access is not absolute. KRS 61.882(4). As a pre-condition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81.
By memorandum dated April 9, 1991, Mr. Bevarly explained to the undersigned that the requested documents might be contained in the files of as many as thirty-one employees of the Office of Economic Development, including staff persons at the office in downtown Louisville and the office near the Standiford Field Airport. In addition, documents implicated by the request might be found in OED's central file room, the general files of OED's Highland Park, Prestonia and Standiford (HPS) division, and the files of the Louisville Urban Renewal Commission, for which OED provides staff support.
Simply stated, Mr. Christensen's request is overly broad and ambiguous. He couches his request in terms of "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies, and any "notes, memos, correspondence and other types of materials that might provide information about the exchange of ideas and facts regarding business retension (sic) policies and practices . . . ." We have previously stated that blanket requests for information on a particular subject need not be honored. OAG 76-375; OAG 83-386; OAG 89-61; OAG 89-88. Mr. Christensen's request is not even limited to a particular subject.
The UPS and airport expansion projects are multi-faceted, multi-phased projects which are ongoing. The Office of Economic Development acts as a facilitator in coordinating numerous sub-projects relating to the projects. If Mr. Christensen could identify specific areas of concern or interest, such as, for example, a zoning change proposed by UPS which had been granted or denied, the Department could access the relevant documents, and, if not otherwise exempt, make them available for his inspection. In its present form, the request is so non-specific as to preclude the custodian from determining what records it encompasses, much less whether any or all of the records are exempt.
Given the vast number of files which might fall within the parameters of Mr. Christensen's request, their broad dispersal, and the difficulties which would attend any attempt to separate exempt from non-exempt materials, we conclude that your reliance on KRS 61.872(5) was proper, and that you have established by clear and convincing evidence that the request places an unreasonable burden on your agency. Because you have sustained this burden of proof, we need not address the propriety of the claimed exemptions under KRS 61.878(1)(g) and (h).
We strongly urge both you and Mr. Christensen to continue to work in a spirit of cooperation toward identifying and locating the records he wishes to inspect. To that end, we caution Mr. Christensen that he must describe, with reasonable particularity, the records he seeks.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Jesper Christensen. He may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).