Request By:
Mr. Mark F. Weber
CEO/President
Owensboro-Daviess County Hospital
811 East Parrish Avenue
Owensboro, Kentucky 42301
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Edward J. Allison has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of his May 15, 1992, request to inspect certain records in the possession of the Owensboro-Daviess County Hospital. Those records are identified as "Mitzi L. Allison's time card and/or sheets while employed at O.D.C.H. from September 1, 1990, to May 15, 1992 . . . ." Mr. Allison indicates that he was previously afforded access to automated pay records for this period.
You responded to Mr. Allison's request in a letter dated May 20, 1992, advising him that you were unable to make those records available to him. You explained that time card information is accessible by computer for the current two week pay period, but that the information is erased as soon as pay checks are issued. Continuing, you noted:
[Time sheets] are stored off-site and in a warehouse and are so voluminous that retrieval would pose an unreasonable burden upon the Hospital (KRS 61.82) [sic]. Accordingly, we are unable to make them available.
In closing, you observed, "The Open Records Act applies to documents, not information. The Act does not require that the Hospital create lists or provide research services upon request."
Mr. Allison asks that we review the actions of the Owensboro-Daviess County Hospital to determine if those actions were consistent with the Open Records Law. For the reasons set forth below, we conclude that you improperly denied Mr. Allison's request.
OPINION OF THE ATTORNEY GENERAL
This Office has consistently recognized that a public employee's time sheet is a public record and must be made available for inspection. OAG 84-161; OAG 86-55; OAG 91-176. In OAG 84-161, at p. 2, we reasoned:
Section 3 of the Kentucky Constitution provides that public emoluments or privileges may only be granted in consideration of public service. A public employee is therefore accountable to provide public service in exchange for the receipt of a wage payment from public funds. This accountability is established through the employee's time sheet. On that time sheet, the public employee verifies that he performed public service on certain hours and days, that he received compensatory time for public service worked above the standard workweek, and that he did not perform public service on certain hours and days and thereby forfeited vacation leave or sick leave. The time sheet thereby represents a confirmation of public funds expended for public service.
Additionally, we recognized that KRS 61.878(1)(a), the privacy exemption, is not applicable to public employee time sheets inasmuch as the protection against an unwarranted invasion of personal privacy does not extend to time spent in public service for which the public employee is compensated by public funds. OAG 84-161.
You do not argue that the requested records are exempt, but instead take the position that production of the time sheet would place an unreasonable burden on the Owensboro-Daviess County Hospital. Relying on KRS 61.872(5), you maintain that because they are stored off-site and are voluminous in nature, their retrieval would be unduly burdensome. We are not persuaded by this argument.
It is the opinion of this office that you improperly denied Mr. Allison'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 request 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 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). That 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. Allison's request places an unreasonable burden on your office. You do not, however, describe with any degree of specificity the actual volume of records implicated by his 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. The fact that the records are stored off-site is a relevant consideration only insofar as it relates to their immediate availability. KRS 61.872(4) provides that if a public record is in active use, in storage or not otherwise available, the custodian should immediately notify the applicant and designate a place, time, and date for inspection not to exceed three days from receipt of the application, unless a detailed explanation of the cause for further delay is given and arrangements are made for inspection at the earliest possible date. This fact does not relieve Owensboro-Daviess County Hospital of its duty to furnish access to nonexempt public records.
Mr. Allison asked to inspect the time cards of one individual for a period of less than two years. Although retrieval of these records may result in some inconvenience to your agency, we are not persuaded that it will place an unreasonable burden on the Owensboro-Daviess County Hospital. Accordingly, we find that you improperly denied Mr. Allison's request, and should make the documents available forthwith.
In closing, we note that you improperly characterized Mr. Allison's request as a request for information, and not for documents, which would require the Hospital to create a list or provide research services. While this Office has consistently recognized that a request for information on a particular subject without specifying certain documents need not be honored, it is our opinion that Mr. Allison requested a discrete category of documents, i.e., the time sheets of a specific individual for a stated period. This request for documents is not transformed into a request for information or research services simply because you or your employees must expend time and effort in locating and retrieving these documents.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Edward J. Allison. The Owensboro-Daviess County Hospital may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).