Request By:
Mr. Patrick D. Pace
Rummage, Kamuf, Yewell, Pace & Condon
Great Financial Federal Building
322 Frederica Street
Owensboro, Kentucky 42301
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Dick Moore has appealed to the Attorney General, pursuant to KRS 61.880, your latest response to his repeated requests to inspect documents in the possession of Owensboro Municipal Utilities (OMU). By our calculations, and based on the supporting documentation we received, it appears that Mr. Moore submitted ten or more open records requests to OMU in the period from November 19, 1991, to March 12, 1992. In each of his requests, Mr. Moore asked to inspect several categories of records generated over a four year period. For example, on November 19, 1992, he requested access to:
(1) The minutes of regular and special board meetings 1988, 1989, 1990, 1991;
(2) Monthly billings to Kentucky Utilities for 1988, 1989, 1990, 1991;
(3) 10% dividend the City of Owensboro received for 1988, 1989, 1990, 1991;
(4) Amount of free electrical and water service the City of Owensboro has received for 1988, 1989, 1990, 1991;
(5) Contribution and name of charity made to nonprofit organizations in cash or in kind . . . for 1988, 1989, 1990, 1991;
(6) Free work or in kind contributions for 1988, 1989, 1990, 1991;
(7) Our utility rate[,] water and electric[,] each year for 1988, 1989, 1990, 1991;
(8) Price OMU paid for coal in each of the years 1988, 1989, 1990, 1991;
(9) How many tons of coal [did] OMU purchase [in the] year[s] 1988, 1989, 1990, 1991;
(10) How many tons were mined in Davies County [in] 1988, 1989, 1990, 1991, and purchased by OMU;
(11) The formulas or breakdown of K.U. billings.
In addition, a number of Mr. Moore's later requests were duplicative in nature, OMU having previously afforded him access to the same documents.
You responded to each of Mr. Moore's requests on behalf of OMU. Our review of your letters demonstrates that with the exception of one category of documents, not here relevant, you permitted him to review all existing records he requested. You explained to Mr. Moore that he would need to identify those documents that he wanted copied and pay an appropriate fee for reproduction costs. In addition, you attached a copy of OMU's "Rules for Inspection of Public Records. "
On December 23, 1991, you first advised Mr. Moore that his open records request were becoming duplicative. You indicated that three of the four documents requested had been made available to him when he appeared at the OMU offices on December 20, 1991. Following receipt of his December 26, 1991, request, you responded:
I must advise you that while OMU has made every effort to meet both the letter and the spirit of the Open Records Act in responding to your requests, your numerous, sometimes duplicative, requests are requiring an inordinate amount of OMU Management and staff time. OMU is authorized under applicable statutes to refuse your request where it places an unreasonable burden on it or where OMU believes that the repeated requests are designed to disrupt OMU's essential functions. Please be so advised and act accordingly.
Undeterred, Mr. Moore submitted a number of additional requests which duplicated earlier requests. In response to his January 16, 1992 request, you advised that four of the seven documents for which he asked had previously been produced, and warned that his "numerous and often duplicative requests could be viewed as unreasonable." On January 30, 1992, in response to yet another request, you admonished:
Again you are asking for many records which you have previously reviewed. We suggest that you request copies of documents which you have a continuing need for rather than repeatedly requesting to review the same documents.
Nevertheless, on each occasion you provided Mr. Moore with all existing documents which satisfied his requests, and which had not been previously produced.
On March 15, 1992, you formally denied Mr. Moore's final request, stating:
In my letter to you of January 21, 1992, I advised that your numerous and often duplicative requests to OMU were unreasonable and appeared to be intended to disrupt essential functions of the utility. Since that time you have served at least five additional requests on OMU. Your March 12, 1992, letter requests items which have been previously produced for your inspection for a third time.
Clearly, your purpose is to harass OMU by burdening it with unreasonable requests for voluminous records and disrupting essential functions of the utility in contravention of KRS 61.872(5). Consequently, the OMU Commission has directed me to advise you that OMU refuses your most recent requests for inspection of records pursuant to KRS 61.872(5).
In his letter of appeal to this Office, Mr. Moore argues that he is being harassed by OMU. He explains:
Each time I went up to OMU, I had no plans to go back -- I felt it was the last time because I would report to [the] Mayor & City Com. and hoped they would take over getting to the bottom of . . . [the problem of falsification by OMU].
He indicates that he has "some very important questions" which have not yet been answered, and requests this Office's help. Among the attachments to his Open Records appeal is a list of 23 questions which he has submitted under the Act.
Mr. Moore asks that we review your March 14, 1992, denial to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Moore's request.
OPINION OF THE ATTORNEY GENERAL
At issue in this Open Records appeal is not the propriety or impropriety of the nondisclosure of public records under the exceptions codified at KRS 61.878(1)(a) through (j). Our review of your responses to Mr. Moore's letters illustrates that on all but one occasion, you afforded him access to the records he requested, and he does not challenge that isolated denial. Rather, the issue in this appeal centers on KRS 61.872(5), and the question of whether Mr. Moore's repeated requests placed an unreasonable burden on OMU and were filed for purposes of harassment. Resolution of this issue turns on an interpretation of that statute.
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.
In determining whether a series of open records requests places an unreasonable burden on a public agency, or is intended to disrupt its essential functions, and thus warrants invocation of KRS 61.872(5), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function. In OAG 77-151, at p. 3, we opined:
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.
However, we have also recognized that:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-375, at p. 4. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency.
From the information with which we have been provided, we cannot say that Mr. Moore's requests to inspect records amount to harassment or show an intent to disrupt OMU's essential functions. Mere invocation of the statute is not sufficient to meet this burden of proof. OAG 89-79; OAG 92-16. Having reviewed his requests, as well as his letter of appeal, we are convinced that Mr. Moore is deeply committed to the project he has undertaken, and that the volume of his requests is a function of the complexity of the records he has reviewed, rather than a malicious intent to harass OMU.
Nevertheless, it is our opinion that OMU has established that Mr. Moore's numerous, often duplicative, requests have placed an unreasonable burden on the agency. In each of his requests, Mr. Moore asked to inspect several categories of documents generated over a four year period. To produce these records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended. Although you repeatedly demonstrated your willingness to cooperate with Mr. Moore in affording him access to the requested documents, you properly invoked KRS 61.872(5) at the point at which his requests had become unreasonable.
Moreover, many of Mr. Moore's letters contain requests for information, as opposed to requests for documents. As you properly observed in your March 10, 1992, response:
The Open Records Act allows inspection of public records under the terms and conditions set forth therein. A public agency is not required to compile information or answer questions, but is only required to produce documents which it may have which are responsive to a request for them.
This Office has consistently recognized that the Act is not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information, but is instead intended to provide for inspection of reasonably described records held by public agencies. OAG 89-77; OAG 89-81. To the extent that you declined to respond to these questions, we find that your actions were also consistent with the Open Records Act. We do not mean to suggest that Mr. Moore is not entitled to answers to his questions. This is not a matter for Attorney General review. However, it is our opinion that his attempt to compel OMU to respond to his questions by invoking KRS 61.870, et. seq., represents a misuse of the Act.
We therefore conclude that your actions were entirely consistent with the Open Records Act, and that you properly relied on KRS 61.872(5) in denying Mr. Moore's final records request.
As required by law, a copy of this opinion will be sent to Mr. Dick Moore. Mr. Moore may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).