Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the denial by the City Clerk, City of Pioneer Village, of the open records request of Council Members, City of Pioneer Village, for copies of all city ordinances which have been passed since the date of incorporation of the City of Pioneer Village.
Ms. Pat Hayes, City Clerk, City of Pioneer Village, denied the request of the council members, stating:
I am respectfully declining the request for the following reasons:
1. It places an unreasonable burden upon this office to produce the requested records since the inception date of the City's incorporation;
2. Producing the records would clearly disrupt the other essential functions of the City since I am the only paid staff person in the Office of the Mayor; and
3. The request is a blanket request.
We are asked to determine whether the City Clerk's denial was consistent with the Open Records Act. For the reasons which follow, it is the decision of this office that the denial was improper and inconsistent with provisions of the Act.
Denial of an open records request must be articulated in terms of the requirements of the statute. The City Clerk's response is procedurally deficient in that it fails to cite a specific statutory exception which authorizes the withholding of the requested records and a brief explanation how the exception applies to the record withheld. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Moreover, the burden of proof establishing that the requested records fall within an exception of the Open Records Act falls upon the public agency. KRS 61.880(2)(c). The City Clerk denied access to ordinances passed by the City on the basis that it would impose an undue burden on the City, disrupt its essential function, and was a blanket request.
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.
(Emphasis added.)
In determining whether an open records request places an unreasonable burden on a public agency, or is intended to disrupt its essential functions and thus warrant invocation of KRS 61.872(6), we 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 weighing these interests, the burden is on the public agency to show, 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. 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 public 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. Likewise, in OAG 84-278, we held that a request to inspect a voluminous amount of court records (approximately 10,000 cases), dating back five years, which pertained to traffic violations for driving under the influence (DUI) was not indicative of an unreasonable burden where the requester was willing to inspect a few at a time.
However, 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 located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
In the instant case, the City Clerk does not describe with any degree of specificity the volume of records implicated by the City Council's request or the difficulty in accessing the ordinances. The denial consists of little more than a mere recitation that the request places an unreasonable burden upon the City Clerk's office.
Moreover, denial based upon an unreasonable burden in producing voluminous records, and as a blanket request, is not substantiated where the records sought are of an identified, limited class, typically maintained by month or year, so that they may be made rather readily available as by providing appropriate binders or boxes. OAG 89-20. Adopted city ordinances are of an identified, limited class, typically maintained by a city so that they may be readily available for inspection. Accordingly, it is the decision of this office that the denial of the request was inconsistent with the Open Records Act and the records should be made available to the members of the City Council for inspection.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.