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 Cabinet for Public Protection and Regulation - Office of the Petroleum Storage Tank Environmental Assurance Fund's handling of an August 6, 1997, request for copies of "pre-release daily inventory records (per 401 KAR 42.030 and 401 KAR 42.040) for all facilities which have received financial disbursement from the Assurance Fund" for the years 1995, 1996, and 1997. The request was submitted by Jennings H. Smith in his official capacity as Mayor of the City of Radcliff. Having received no response to his request, on August 21 Mayor Smith initiated this appeal.
On September 4, 1997, this office received a copy of a letter sent by David B. Wicker, staff attorney for the Fund, to Mayor Smith, and dated September 2. In the intervening period, Mayor Smith had apparently amended his request for copies, offering to send city representatives to review Fund files and extract the relevant documents. Mr. Wicker indicated that Mayor Smith's earlier request for copies had been denied "as unduly burdensome, given the volume of records . . . requested." In response to Mayor Smith's request to inspect the Fund's files, Mr. Wicker advised:
This request is also denied as unduly burdensome and disruptive to the essential functions of the Fund. See KRS 61.172(6) [sic]. The Fund has reimbursed 1,816 claims since its inception. Our records are stored by facility, not by year. Inventory records have been required for all facilities to determine compliance status. To fulfill your request would require this staff to review every file for documents not subject to disclosure prior to your review. Given the number of files that are responsive to your request, the burden of producing every file for inspection is unreasonable.
In closing, Mr. Wicker agreed to produce specifically identified files for inspection, or "to produce up to 25 facility files per week for . . . review."
The question presented in this appeal is whether the Cabinet for Public Protection and Regulation-Office of the Petroleum Storage Tank Environmental Assurance Fund violated the Open Records Act in responding to Mayor Smith's request. For the reasons which follow, we find that although the Fund properly refused to mail copies of the records, because they were not readily available within the public agency, it impermissibly attempted to restrict access to the records by limiting the city official's right of inspection to 25 facility files per week.
In 97-ORD 16, this office considered a public agency's duties relative to providing copies of public records upon request. At page 2 and 3 of that decision, we observed:
KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:
The Open Records Act thus contemplates records access by one of two means: On site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186.
Mayor Smith lives and works in Hardin County, and the records are located in Franklin County, thus satisfying the first requirement of KRS 61.872(3)(b). Moreover, he describes the requested records with sufficient precision to satisfy the second requirement of that provision. Because, however, those records are not "readily available within the public agency" Mayor Smith is not entitled to receive copies by mail and the Fund did not violate the Act in refusing to comply with his original request.
On this subject, the Attorney General has commented:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:
95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "description" for purposes of on-site inspection pursuant to KRS 61.872(2). We have not, however, had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precision."
97-ORD-46, p. 3, 4. Mayor Smith requested copies of the pre-release inventory records for all facilities which received financial disbursements from the Fund in 1995, 1996, and 1997. Although it covers a large number of records, the request describes in definite, specific, and unequivocal terms the documents which he wished to access by receipt of copies through the mail.
Nevertheless, the Fund was not obligated to send him copies of these documents because they were not "readily available within the public agency. " KRS 61.872(3)(b). In 97-ORD-46, we observed:
This third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., 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, p. 4, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
Mr. Wicker states, in specific terms, the difficulty in identifying, locating, and retrieving the requested records. He indicates that there are over 1,816 facility files, and that inventory records are stored by facility and not by year. In view of this evidence, we find that the records are not readily available, within the meaning of KRS 61.872(3)(b), and that the Fund properly refused to mail Mayor Smith copies.
Nevertheless, we believe that the Fund improperly relied on KRS 61.872(6) in refusing to permit the Mayor and city officials to conduct on-site inspections of these records. That statute 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 92-ORD-1261, this office interpreted KRS 61.872(6) in considerable depth. At pages 3 and 4 of that decision, we observed:
Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872[(6)] to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
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:
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.
As noted, Mr. Wicker indicates that there are 1,816 files which may contain records satisfying Mayor Smith's request, and that the files may contain "documents not subject to disclosure prior to your review." However, he "does not identify those portions of the file which are excluded from public inspection, or the statutory basis for such exclusion." 97-ORD-12, p. 3. In the latter decision, the Fund was asked to produce its files for inspection. Rejecting the Fund's claim that the requester could not be permitted to inspect its files due to the presence of nonexempt records in those files, we noted that "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-12, p. 4 citing OAG 81-198, p. 4. We reasoned:
Because the exemptions codified at KRS 61.878(1)(a) through (j) are permissive and not mandatory, the decision to remove excepted material "rests within the sound discretion of the public agency. " OAG 89-76, p. 3. Accordingly, the [Fund] may release the files in their entirety, or separate the excepted material and make only the non-excepted material available for inspection. It cannot deny inspection, or place restrictions upon the exercise of the right to inspect.
97-ORD-12, p. 4; compare 97-ORD-88 (holding that where the decision to redact is not discretionary, because the excepted information is made confidential by state or federal enactment, agency successfully establishes that request for voluminous records is unduly burdensome) .
The Fund's argument in this appeal is similarly flawed. In the absence of specific proof that the Fund is required by law to prevent examination of portions of these files, we do not believe that it can reasonably argue that making them available for inspection during regular business hours is unduly burdensome. As we stated in 97-ORD-12:
KRS 61.872(1) provides that "all public records shall be open for inspection by any person , except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " any person shall have the right to inspect public records ." . . . Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . ."
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. [Footnote omitted.] Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of the Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right "to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law." Id.
Echoing these opinions, in 1990 we held that the Rowan County Clerk erred in denying a request for equally broad categories of information for a ten year period. Recognizing that the applicant had requested information, rather than to inspect reasonable identified records, this office nevertheless held that the clerk's response "should have stated that while Open Records provisions do not require a public agency to compile information [to conform to the parameters of a given request], records that might yield the information sought would be made available for inspection during normal office hours. " OAG 90-19, p. 3. In a similar vein, in 97-ORD-6 the Attorney General reaffirmed the principle that "public agencies are not required to compile information to satisfy . . . a request, . . . [but] agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 4 (emphasis added).
97-ORD-12, p. 2, 3. We believe that this decision, a copy of which is enclosed, is controlling.
The Office of the Petroleum Storage Tank Environmental Assurance Fund makes essentially the same argument in this appeal as it made in its earlier appeal. Inasmuch as the Fund has offered little additional evidence to support its claim that Mayor Smith's request to inspect its files is unduly burdensome, we find that it erred in refusing to permit him to conduct an on-site inspection of the files which contain the records he seeks. While we again applaud the Fund for attempting to accommodate his request in some other manner, we believe it must open its files for his inspection during regular business hours. Although the Fund may adopt rules which conform to the Open Records Act to protect the records from damage and disorganization and to prevent disruption of its essential functions, pursuant to KRS 61.876(1), "unreasonable restrictions upon inspection may not be imposed." OAG 89-91, p. 4. The Fund should immediately make arrangements for Mayor Smith, or city officials acting on his behalf, to inspect the files which contain pre-release daily inventory records for 1995, 1996, and 1997.
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.