Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kenton County Attorney, John R. Elfers', latest response to Mr. Karl Idsvoog's most recent requests to inspect certain records in his custody. Those records are identified as the payroll ledger sent to Mr. Elfers' Office by Midwest Payment Systems, and records relating to the office's "accruing salary account." Mr. Idsvoog is special projects producer for WCPO-TV, and his request was made under the Kentucky Open Records Law.
In a letter dated May 19, 1993, Mr. Elfers advised Mr. Idsvoog:
We have reviewed your numerous requests and repeated interruptions with the County Attorney Office and Domestic Relations personnel, including the last incident on Friday, May 14, 1993, when you unlawfully photographed documentation in the child support office which is privileged and confidential.
You have made appointments to review certain records and arrived with a cameraman two (2) days early and demanded that all records be produced to you contrary to our written agreement. We have documented all your requests and business interruptions beginning April 1, 1993 and have concluded that you have caused the citizens of Kenton County to use tax funds in order to supply you various records which have no merit whatsoever.
In conclusion, your repeated requests and arrivals at the offices with a cameraman, without prior notice are intended to disrupt all essential functions of the County Attorney's Office, which includes Domestic Relations, Child Support Division. Authority: KRS 61.872.6[sic].
He thereafter advised Mr. Idsvoog that neither he nor any representative of WCPO-TV would be permitted to inspect the records of the County Attorney's office.
In his letter of appeal to this Office, Mr. Idsvoog acknowledges that he has made repeated requests for the County Attorney's financial records. Although Mr. Elfers' office has afforded him access to some records, "inspection of those records gave indications of other 'financial records' to which [he has] been denied access." Mr. Idsvoog has provided this Office with a series of letters to and from Mr. Elfers to facilitate our review. These letters indicate that although Mr. Idsvoog has submitted numerous requests for records to the County Attorney's office since April 1, 1993, these requests were necessitated by the restrictions imposed on him by Mr. Elfers while reviewing records, 1 and his belief that certain financial records have not been disclosed.
We are asked to determine if the Kenton County Attorney properly relied on KRS 61.872(6) in denying Mr. Idsvoog's latest request, and in advising him that he is thenceforth precluded from reviewing the Office's records. For the reasons set forth below, we conclude that Mr. Elfers improperly denied Mr. Idsvoog's most recent request, and that his reliance on KRS 61.872(6) was misplaced.
The issue presented in this open records appeal centers on KRS 61.872(6) and the question of whether Mr. Idsvoog's repeated requests were filed for purposes of harassment. Resolution of this issue turns on an interpretation of that statute. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing 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 is intended to disrupt an agency's essential functions, and thus warrants invocation of KRS 61.872(6), 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 are intended to disrupt the essential functions of the agency.
From the information with which we have been provided we cannot conclude that Mr. Idsvoog's requests to inspect records amount to harassment or show an intent to disrupt the Kenton County Attorney's Office's essential functions. Mere invocation of the statute is not sufficient to meet this burden of proof. OAG 89-79; OAG 92-16; OAG 92-91. Having reviewed his requests, as well as his letter of appeal to this Office, we are convinced that Mr. Idsvoog is aggressively pursuing an investigation into the County Attorney Office's financial operations, and that the volume of his requests is a function of the restrictions which were placed on him in inspecting the records rather than a malicious intent to harass the County Attorney's Office.
It is the opinion of this Office that Mr. Elfers' reliance on KRS 61.872(6) is misplaced, and that he may not refuse Mr. Idsvoog the right to inspect his office's records. He is directed to respond to Mr. Idsvoog's May 14 request by affording him access to the requested records, or by invoking one or more of the exceptions codified at KRS 61.878(1)(a) through (k) if he believes the records are exempt.
The office of the Kenton County Attorney and Mr. Idsvoog may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 .
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