Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville properly denied an open records request submitted by the Office of the North Carolina Attorney General. On January 23, 1998, Special Deputy Attorney General Thomas J. Ziko requested access to:
1. all documents, regardless of form, relating to the opening of the new football stadium at the University of Louisville; and
2. all documents, regardless of form, relating to the scheduling of the University of Kentucky's football game against the University of Louisville at Louisville in the 1998 season.
For the reasons that follow, we find that the University of Louisville violated the Open Records Act in denying the North Carolina Attorney General's records request.
In a letter dated January 30, 1998, William J. Morison, director of the University of Louisville's Archives and Records Center, denied Mr. Ziko's request. Relying on KRS 61.872(6), he explained that "such records, in various University offices, comprise a [sic] such a large quantity that [Mr. Ziko's] request, in the words of the Kentucky statute, places an unreasonable burden in producing public records. . . ." Dr. Morison suggested that Mr. Ziko define "with reasonable specificity" the records he wishes to inspect.
Shortly thereafter, Mr. Ziko resubmitted his request, narrowing the scope of that request to records relating to the scheduling of the University of Kentucky's football game against the University of Louisville at Louisville during the 1998 football season. Again Dr. Morison denied the request, responding as follows:
Given the announcement of litigation with the Commonwealth, the Kentucky Open Records Act cannot be used by a party. Responses should be via the discovery process under the civil rules of procedure. KRS 61.878(1) provides, in part, that "no court shall 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. " The Civil Rules at CR 26.01 provide that discovery may be obtained only by certain methods which do not include an open records request.
This appeal followed.
It is the opinion of this office that the University of Louisville's reliance on KRS 61.878(1) was misplaced, and that it failed to show, by clear and convincing evidence, that Mr. Ziko's request was unreasonably burdensome within the meaning of KRS 61.872(6).
In a recent open records decision, the Attorney General construed the language which appears at KRS 61.878(1) in the context of a public agency's denial of an records request submitted by a party to litigation with the agency. There we held that although "the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act." 98-ORD-39, p. 2. It is instructive to quote at some length:
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Elaborating on this view, in a subsequent opinion the Attorney General observed:
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98.
These open records decisions were accompanied by the following cautionary language:
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the [requested] records . . . fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (1), they must be disclosed.
98-ORD-39, pages 2 through 4.
With particular reference to the language found at KRS 61.878(1), upon which the University relies, the Attorney General has construed this provision to mean that:
should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to the action , and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
95-ORD-18, p. 4 (emphasis in original). Under this line of authority, the University of Louisville must release the requested records to the Office of the North Carolina Attorney General unless those records are otherwise exempt.
On the facts presented, we do not find that Mr. Ziko's request can be denied on the basis of KRS 61.872(6) which 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.
This provision is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
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.
OAG 77-151, p. 3. We have also recognized, however, 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, p. 4. In determining whether an open records request is unreasonably burdensome, 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. A bare allegation that the request is unreasonably burdensome does not satisfy the requirement of the statute. 96-ORD-201; 96-ORD-193; 96-ORD-100; compare, 97-ORD-88.
In the appeal before us, the University of Louisville has not shown, by clear and convincing evidence, that Mr. Ziko's request is unreasonably burdensome. As noted, mere invocation of the cited exception does not sustain the agency's burden. The University had three opportunities to build its case: First, in its initial denial of Mr. Ziko's original request; second, in response to Mr. Ziko's amended request; and third, in response to this office's notification of receipt of open records appeal, which was issued on April 13, 1998, and which clearly states that the agency "may respond to this appeal." 40 KAR 1:030 Section 2. The University does not describe, with any degree of specificity, the volume of records implicated by the request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. Inasmuch as the burden of proof rests with the agency, and the University failed to meet its burden, we find that it must release the records identified in Mr. Ziko's March 4, 1998, request to the Office of the North Carolina Attorney General.
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.