Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Natural Resources and Environmental Protection Cabinet's response to an open records request submitted by Pamela Sargent, a paralegal employed by Wyatt, Tarrant & Combs, on August 26, 1997. Ms. Sargent requested access to "the reports/documents regarding the statewide assessment of surface impoundments conducted in 1978-1979 pursuant to the Safe Drinking Water grant" and "the Rockwell files." On September 4, 1997, Kathryn M. Hargraves, manager of the Natural Resources and Environmental Protection's Legal Branch, denied Ms. Sargent's request. In a letter addressed to George L. Seay, Jr., an attorney at Wyatt, Tarrant & Combs who represents Rockwell International Corporation and with whom Ms. Sargent works, Ms. Hargraves stated that she knew of no documents responsive to Ms. Sargent's request "to see some type of survey of impoundments she believes the cabinet conducted in the late 1970's under the Safe Drinking Water Act." In response to Ms. Sargent's request for access to the Rockwell file, Ms. Hargraves argued that because the Cabinet has produced the documents in the Rockwell file for Rockwell International several times "in the context of the circuit court action and the administrative appeals," the Open Records Act "protects [the Cabinet] from producing all those records again." In support, she cited KRS 61.878(1) and KRS 61.872(6) "which allow an agency to deny inspection of records 'by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery, ' and on the basis of undue burden." It is on the issue of access to the Rockwell files that Mr. Seay's appeal focuses.
In a letter to the Attorney General, Ms. Hargraves explained that the Cabinet filed suit against Rockwell in 1986, following years of controversy and legal wrangling relating to a waste lagoon at Rockwell's Russellville, Kentucky, manufacturing plant. In the years that followed, the Cabinet produced all discoverable records in its Rockwell files in response to requests for production, and voluntarily updated its production as new discoverable documents were generated. When the case went to trial, the Cabinet furnished Rockwell with copies of all 242 exhibits, thus providing the corporation with a second copy of the documents. Ms. Hargraves indicated that additional copies were sent, or made available, to Rockwell on other occasions. She noted:
Various plaintiffs who have brought tort suits against Rockwell in state and federal courts for its spill of PCBs have made Open Records Act requests of the cabinet, and I know that Rockwell received copies of the cabinet's records from those plaintiffs. In addition, I know on at least one occasion Wyatt, Tarrant & Combs attended an Open Records Act inspection conducted by Rockwell's insurance carrier, with whom Rockwell was in litigation over the PCB spill, and obtained copies from the cabinet of everything its insurance carrier obtained. Finally, the cabinet and Rockwell are in administrative litigation over its Russellville plant and the PCB spill, and we have made the same records available for production under administrative discovery rules.
The Cabinet argues that "for Rockwell to demand those same records yet again would clearly violate KRS 61.872(6) and KRS 61.878(1), both because of 'unreasonable burden' and 'repeated requests,' and because the request would authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " We agree.
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 or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Attorney General has frequently noted that "the purpose and intent of the Open Records Act is to permit 'free and open examination of public records [;] . . . however, this right of access is not absolute.'" KRS 61.871; 96-ORD-209, p. 4. This statement is premised on the notion that "state agencies and employees 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, p. 4.
In determining whether a series of records requests is unreasonably burdensome, or 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 in order to insure effective agency oversight, and that of the agency in successfully executing its public function. Ultimately, of course, the burden of proof rests with the agency. "This burden is not sustained by the bare allegation that the request is unreasonably burdensome. " 96-ORD-209, p. 5. As the Attorney General observed at page 3 of OAG 77-151:
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, "mere invocation of [KRS 61.872(6)] does not sustain the agency's burden." 96-ORD-209, p. 5.
Clearly, one of the most difficult decisions the Attorney General must make in adjudicating disputes under the Open Records Act is the decision whether an application for public records places an unreasonable burden on an agency. KRS 61.872(2) provides that "any person shall have the right to inspect public records during regular office hours or by receiving copies through the mail. " Nevertheless, the Attorney General has recognized that "common sense dictates . . . that repeated requests for the same record may become unreasonably burdensome or disrupt the agency's essential functions." 95-ORD-47, p. 6, 7. Thus, on a number of occasions, this office has held that a public agency may properly rely on KRS 61.872(6) to deny a duplicative request for the same records unless the requester "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records." 95-ORD-105, p. 7; see also OAG 92-91; 95-ORD-47; compare OAG 90-112, p. 5, and 96-ORD 209 (holding that although the agency had not sustained its denial of the applicant's request in that appeal, the agency might deny "future requests of a similar nature . . . if new or additional evidence can be produced which demonstrates by 'clear and convincing evidence' that the request is unreasonably burdensome" ).
We believe that 95-ORD-105, OAG 92-91, and 95-ORD-47 have a direct bearing on this appeal. Although the facts giving rise to those appeals are distinguishable from the appeal before us, involving duplicative requests for public records under the Open Records Act as opposed to a request for production in pending litigation followed by an Open Records request, we believe the logic of the cited open records decisions can be extended to this appeal. The Cabinet is not obligated to satisfy an open records request for voluminous documents which have already been produced on more than one occasion to the same requester in the absence of some justification for the resubmission of the request. "To produce these records once entails some [unavoidable] 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." OAG 92-91, p. 6. The Cabinet has confirmed that it has furnished Mr. Seay or his client with multiple copies of all discoverable documents generated in the course of its dealings with Rockwell International. Mr. Seay and his client are entitled to no more under the Open Records Act. KRS 61.878(1);
Department of Corrections v. Courier-Journal and Louisville Times, Ky.App., 914 S.W.2d 349 (1996).
Our decision is limited to the facts presented in this appeal, and should not be construed as blanket authorization for an agency to deny access to public records under the Open Records Act simply because the agency is in litigation with the requester. See, 96-ORD-138, OAG 89-65, OAG 82-169. Obviously, if an applicant can establish that the copies of public records with which he was furnished were lost or destroyed, he may be entitled to a second copy. Similarly, an applicant may request a duplicate copy of a limited number of public records without placing an unreasonable burden on the agency. Our decision in this appeal turns on the volume of records requested, the number of times they have previously been provided to the applicant, and the obvious burden on the Cabinet to produce the records yet again. In our view, the Natural Resources and Environmental Protection Cabinet properly denied Ms. Sargent's and Mr. Seay's request on the basis of KRS 61.872(6).
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.