Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
Mr. Jim Blake challenges the actions of the Madison County Board of Education in responding to his May 26, 1994, open records request. Mr. Blake requested access to "employment applications and resumes, records of educational qualifications, educational levels, rank, attendance records, and any internal investigative report, or disciplinary action taken against . . . [eleven employees of the Madison County Board of Education], and/or the charges from which that action stemmed." In addition, Mr. Blake requested records arising from contract termination proceedings relative to the named individuals, any letters of resignation, and length of service with the Madison County School District, including contract dates. As of the date of this appeal, June 8, 1994, Mr. Blake had received no response to his request.
Upon learning of Mr. Blake's appeal, Superintendent Shannon Johnson responded to his request. In a letter dated June 13, 1994, Superintendent Johnson stated that although he was aware of the time constraints imposed on public agencies in responding to an open records request, he believed that "inspection may be delayed if the cause for the delay is supported by a detailed explanation." He explained that Mr. Blake's request "encompasses 11 separate personnel files, implicating several exemptions under the open records act [sic]." In addition, Superintendent Johnson noted that the Board's attorney, who was handling this matter, was called away by a family emergency, and unable to attend to it for several days. Finally, he noted that Mr. Blake's request was submitted during the last week of school, and that he had been "particularly busy" as superintendent of schools.
Turning to the substantive issues, Superintendent Johnson asserted that Mr. Blake's request "places an unreasonable burden in producing public records . . . [and, along with his other requests, was] intended to disrupt . . . essential functions of the public agency. " Pursuant to KRS 61.872(6), he denied the request. Relying on OAG 90-24, which involved Murray State University's obligation, under the Family Educational Rights and Privacy Act of 1974, to redact information from campus law enforcement records, he maintained that where a request for records is broad, and involves numerous records in which confidential information is commingled with information that might be releasable, the request may properly be treated as an unreasonable one. Superintendent Johnson argued that the Family Educational Rights and Privacy Act (FERPA), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), also prohibits release of the records sought by Mr. Blake. Moreover, Superintendent Johnson asserted that KRS 61.878(1)(a), the privacy exception, "manifestly applies to portions of the 13 [sic] personnel records . . . and . . . would necessitate an even more extensive and burdensome review and redaction process than that faced by the University in OAG 90-24." Among other things, he noted that the privacy exception authorizes nondisclosure of home addresses, social security numbers, medical records, marital status, applications and resumes of unsuccessful applicants, college transcripts, and employee evaluations. Continuing, Superintendent Johnson observed:
The burden of sifting through the hundreds of documents contained in the 13 [sic] personnel files at issue and analyzing and applying the privacy exemption as well as the "(FERPA)" exemption and other exemptions (e.g. KRS 61.878(1)(h); (i); (k)) which may apply falls squarely within the "unreasonable burden" exemption of KRS 61.872(6) . . . .
Superintendent Johnson further noted that the Board was not obligated to comply with a "blanket request," such as Mr. Blake's, insofar as the request lacks specificity.
Finally, Superintendent Johnson maintained that Mr. Blake's request, along with 15 others, as well as "77 pieces of correspondence . . . purporting to assert numerous grievances[,]" were intended to disrupt the Board's essential functions within the meaning of KRS 61.872(6). In support of this position, he noted:
Disproportionate staff time has been devoted to these requests and several verbal requests to inspect have also been honored.
In addition, Superintendent Johnson noted that Mr. Blake had visited the Madison County schools "numerous times without registering with the office in violation of school policy and [had] on several occasions interrupted classes while in session." "All of this gives rise to a reasonable belief," in the Superintendent's view "that this latest request is intended to disrupt essential functions of this agency so as to warrant nondisclosure under KRS 61.872 (6)."
We are asked to determine if the Madison County Board of Education properly denied Mr. Blake's request for certain documents in the personnel files of eleven Board employees. For the reasons set forth below, we conclude that the Board's response was both procedurally and substantively improper.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted.
In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).
It is the opinion of this Office that the Madison County Board of Education's response was procedurally deficient. Twelve days elapsed between the date of Mr. Blake's written request and the date of Superintendent Johnson's written response. This exceeds the statutory deadline by nine working days. Assuming that the Board could justify this delay, it was nevertheless obligated to "immediately" notify Mr. Blake, explain the reasons for the delay, and designate the place, time and earliest date on which the records would be available for inspection. The Board failed to so notify Mr. Blake until June 13, when it denied his request.
Moreover, we are not satisfied that the explanation for delay given by Superintendent Johnson in his June 13 letter was adequate under KRS 61.872(5). In our view, the fact that the Board's attorney was preoccupied with personal matters, and the superintendent was preoccupied with the close of the school year, does not justify a delay of this duration. In their absence, an individual should have been appointed as acting custodian to respond to open records requests in a timely fashion. We believe that the Board's handling of Mr. Blake's request suggests an improper disregard for the purpose and intent of the Open Records Law.
The Board advanced a third rationale for its failure to issue a timely response to Mr. Blake's request. That rationale directly relates to the central substantive issue in this appeal. Superintendent Johnson maintained that the request implicated eleven separate personnel files and several exceptions to the Open Records Law. Not only, in his view, did this fact justify a nine day delay in responding to the request, it also justified the Board's ultimate decision to deny the request, which it characterized as unreasonably burdensome, and aimed at disrupting its essential functions. We do not agree.
The issue in this appeal centers on KRS 61.872(6), and the question of whether Mr. Blake's repeated requests placed an unreasonable burden on Madison County Board of Education and 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 places an unreasonable burden on a public agency, or is intended to disrupt its 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 either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency.
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(6). The 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.
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 requester satisfies this condition. Mr. Blake did not make a blanket request for all records contained in the named employee's personnel files, but instead requested specific categories of records which this office has generally declared to be nonexempt. See, e.g., OAG 89-90 (holding that inspection of employment applications, resumes, and records of educational qualifications, insofar as they are reasonably related to qualifications for public employment, must be permitted); OAG 92-102 (holding that a public employee's attendance records or time sheets must be made available for inspection) ; OAG 91-141 (holding that records relating to public employee misconduct and discipline cannot be withheld); OAG 85-136 (holding that a letter of resignation of a public employee is not excluded from public inspection) .
Although this Office recognized in OAG 90-24 that "where a request for records is broad . . . and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information [may] . . . constitute an unreasonable burden upon the agency within the meaning of KRS 61.872(5)[,]" we do not believe that Mr. Blake's request would impose such a burden on the Madison County Board of Education. See, e.g., OAG 91-7, p. 2, 3 (holding that a request for a broad range of records which described, with reasonable particularity, categories of nonexempt documents the person wished to inspect, must be honored. Thus, the public agency must make a good faith effort to make available for inspection those records which conform to the request). The Board need only retrieve the specifically identified records from each of the eleven files, and, at its election, redact any information of a purely personal nature, such as home address and phone number, social security number, and marital status. In our view, FERPA, which in general pertains to the "educational records" of students, has no relevance whatsoever to Mr. Blake's request.
Nor do we believe that Mr. Blake's request to inspect records amounts to harassment or shows an intent to disrupt the Board's essential functions. The fact that Mr. Blake has frequently corresponded with the Board, and visited schools on several occasions without complying with school policies, has little or no bearing on the resolution of this issue. Neither does the fact that he has submitted previous requests. Superintendent Johnson does not allege that these requests were duplicative in nature, or in any sense frivolous. See, e.g., OAG 89-79, p. 5 (holding that "the burden is on the public agency to demonstrate, by more than merely referring to fifteen requests, that those requests . . . are intended to disrupt other essential functions of the agency"). We must assume, in the absence of clear and convincing evidence to the contrary, that the instant request, as well as those that preceded it, were submitted in good faith, and reflect a commitment to monitoring the activities of the school system, and not to disrupting its essential functions.
We therefore conclude that the burden imposed on the Madison County Board of Education in producing the records requested by Mr. Blake was not an unreasonable one, and that his request was not intended to disrupt the Board's essential functions. Accordingly, the Board must immediately make those records available to Mr. Blake. The Board may, of course, exercise its discretion in redacting personal information from those records pursuant to KRS 61.878(1)(a) and KRS 61.878(4).
The Madison County Board of Education 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.