Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Donald W. Thompson, Vice President of the Pulaski County Education Association, to the Pulaski County School System on August 31, 1993. Those records are identified as:
1992-93 Annual Report
1993-94 Tentative Working Budget
1992-93 Check History of Expenditures by Code
1992-93 Revenue History by Code in Detail
On behalf of the School System, Finance Director Ron Moubray apparently denied his request. Mr. Thompson indicates that Mr. Moubray provided him with "a copy of the Commonwealth Journal of the same date showing the annual statement of cash receipts and disbursements." This did not, in Mr. Thompson's view, satisfy his request. In response to a followup request, dated November 3, 1993, Mr. Moubray apparently advised "that he would not copy the information because it was to [sic] voluminous." Mr. Thompson did not attach a copy of either of Mr. Moubray's responses.
Accordingly, on January 5, 1994, this Office contacted Mr. Thompson by letter, advising him that to facilitate our review of the School System's actions relative to his request, we would need a copy of Mr. Moubray's written response. Citing KRS 61.880(2), we explained that we would be forced to process his appeal on the basis of documents provided if he were unable to produce the response. On February 12, 1994, Mr. Thompson notified this Office the he had been "unable to locate Mr. Moubray's written response denying [his] request . . .," and asked that we proceed to an adjudication of his appeal.
We are asked to determine if the Pulaski County School System violated the Open Records Act in responding to Mr. Thompson's requests. For the reasons set forth below, we conclude that there is insufficient evidence to support a finding that the School System violated the Act.
KRS 61.880(2) provides, in part:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection .
(Emphasis added.) Thus, to perfect an appeal under theOpen Records Act, a complaining party must provide the Attorney General with a copy of the written request and the written denial, if available. While this Office recognizes that the rules of procedure governing an open records appeal should be relaxed to permit the greatest possible access to this forum, and that a rule of substantial compliance should generally be applied, we are unable to determine, on the basis of the documents presented, that the Pulaski County School System violated the Open Records Act.
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.
This Office has traditionally held public agencies to a high standard of proof relative to their invocation of this provision. See, e.g. OAG 84-278 (holding that the denial of a request for approximately 10,000 documents was improper since the requests were not repetitions and the requestor was willing to inspect a few at a time). Where, however, an agency establishes "by clear and convincing evidence" that the request places an unreasonable burden on it, we have sustained agency action. Thus, in OAG 89-88 we upheld the Department of Insurance's denial of KRS 61.872 (6) of a records request, noting that the Department "explained the volume involved . . . and the difficulty associated with separating confidential from non-confidential material."
Because Mr. Thompson cannot produce the Pulaski County School System's response to his request, we are unable to determine if the School System satisfied its burden of proof. It may well be that Mr. Moubray's response contained an explanation regarding the School System's claim of undue burden which was supported by the facts recited. We are therefore unwilling to declare the School System's actions a violation of the Open Records Act.
Nothing in the statutes precludes Mr. Thompson from submitting a renewed request to the Pulaski County School System. If that request is again denied, he may again appeal to this Office. We urge him, however, to carefully review KRS 61.880(2) in advance of filing that appeal to insure that he submits adequate documentation to this Office.
Mr. Thompson may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.