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 Legislative Research Commission violated provisions of the Open Records Act in denying Kentucky Post bureau chief Michael Collins's February 18, 1998, request for copies of telephone records of all outgoing calls from the telephone lines assigned to Senator Gex Williams and Becky Harilson, chief of staff for the Senate Minority Office, for a period of time extending from January 1, 1997, to the present. Based on this office's decision in 98-ORD-92, and the additional reasons set forth below, we find that the Commission has not made a sufficient showing under KRS 61.872(6) that disclosure of the requested records would constitute an unreasonable burden.
In a response dated February 23, 1998, John Schaaf, general counsel for the Legislative Research Commission, advanced the same arguments in support of the Commission's denial that he had advanced in the open records' dispute which culminated in 98-ORD-92. Specifically, he argued that the Constitution of the United States and the Constitution of Kentucky, along with KRS 7.120, KRS 61.878(1)(a), (d), (i), (j), and (l), and KRS 61.872(6), shield these records from public inspection. As he had done in responding to the earlier request for telephone records of the General Assembly, Mr. Schaaf referred to a December 20, 1996, letter to The Lexington Herald-Leader in which the Commission's position was articulated in greater detail.
On May 28, 1998, the Attorney General issued 98-ORD-92, a copy of which is attached hereto and incorporated by reference. There, the requester sought access to records reflecting calls originating from a specifically identified telephone line used in the Senate Republican Leadership office and a specifically identified telephone line used in Senator Gex Williams's Capitol Annex office to eight specifically identified telephone lines. The Commission denied the request for the reasons set forth above. The Attorney General rejected each of these arguments, and held that this office:
is not foreclosed from reviewing the Commissions' denial of the request under the doctrine of separation of powers, and the requested records are not, as a general matter, shielded from inspection by the Speech and Debate Clause.
98-ORD-92, p. 14. Because the Commission did not make a sufficient showing under KRS 61.872(6), 61.878(1)(a), (d), (i), (j), or (l) that these records were exempt from inspection, the Attorney General concluded that the requester must be afforded access to the records identified in his request.
The single distinguishing feature of this appeal is the breadth of the request from which it arises. Both Mr. Collins and the complainant in 98-ORD-92 requested access to records reflecting outgoing calls from two specific telephone lines in the offices of the General Assembly. In 98-ORD-92, the complainant sought to inspect records of calls which were made to eight identified telephone numbers. This office characterized the request as having been framed "with the precision of a rifle shot and not with the casualness of a shotgun blast." Id. at 13, citing Fiscal Court of Jefferson County v. City of Louisville, Ky. 559 S.W.2d 478, 482 (1977). Mr. Collins, on the other hand, seeks access to all outgoing calls from these two numbers, but confines his request to a one and one-half year period beginning in January 1997. Neither requester "seek[s] access to all telephone records for all calls originating from all telephone lines assigned to all members of the General Assembly and all members of their staff. " Id. at 13.
In defending its denial of Mr. Collins's request, the Commission maintains that "the case presented here is certainly more of a blast than a precise shot." Continuing, the Commission observes:
Constitutional issues aside, at some point, a review of thousands of phone calls becomes "an unreasonable burden" as specified in KRS 61.872(6). Common sense should demonstrate the clear and convincing evidence of this burden. If members of the General Assembly and staff are required to review thousands of phone calls to determine which involve potentially excludable matters, day to day legislative business would be disrupted and the taxpayers would not be well-served by such an expenditure of time.
Citing the language of 98-ORD-92, in which we ruled that members of the General Assembly who use publicly funded telephone lines for personal, political, or other nonofficial purposes must be held to the same standard of public accountability as public employees generally, the Commission asserts that "this argument overlooks the constitutional distinction between legislators and employees and clear differences in the nature of their responsibilities." This "argument" also begs the question: "What is a 'personal, political, or other nonofficial purpose' for which a legislator might use a state telephone, and who will make that determination?" The Commission queries:
Is it personal or nonofficial if legislators call home to check on their families during their time in Frankfort? What if they call their office or business which must continue to operate in their absence? It's certainly reasonable to characterize these as personal calls, but they are also essential to the operation of the General Assembly.
Kentucky's Constitution provides for a part-time legislature, one filled with individuals who have families and occupations back home in their districts. That being the case, it is reasonable to conclude that the process should include the opportunity to stay in touch with people back home in a manner which is totally different from the needs of a public employee. The point is, all calls made by legislators while in Frankfort on official business are important to the legislative process, and attempting to characterize one as a personal call and one as a legislative matter in a group of thousands is beyond the capability of this agency.
We find these arguments unpersuasive.
It is the opinion of this office that the General Assembly is subject to the same standard of public accountability as public employees generally when its members and employees use publicly funded telephone lines for personal, political, or other nonprofessional purposes, and that the Legislative Research Commission is subject to the same standard of proof in denying access to records reflecting nonofficial use of those line on the basis of KRS 61.872(6). That statute provides that "refusal under this section shall be sustained by clear and convincing evidence. " As in 98-ORD-92, the Commission has not established by clear and convincing evidence that Mr. Collins's request is unreasonably burdensome.
KRS 61.872(6) provides in full:
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 observed:
[KRS 61.872(6)] 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:
OAG 77-151, p. 3. We have also recognized, however, that:
96-ORD-155, p. 3,4.
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. 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 on it.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. 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 .
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 located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials. Finally, in 96-ORD-42, the Attorney General affirmed the Workforce Development Cabinet's denial of a request for P-1's reflecting promotions in the Department for Employment Services between July 1, 1994, and June 30, 1995, on the basis of KRS 61.872(6). In an attempt to establish, by clear and convincing evidence, the unreasonably burdensome nature of the request, the Cabinet explained:
The Workforce Development Cabinet does not have a list of DES employee's [sic] who received promotions during this period. The only manner in which the Cabinet could determine which DES employees received promotions during the time in question is to physically examine the 1,167 personnel files transferred to the Cabinet from the Cabinet for Human Resources ('CHR') at the time of the reorganization. The Division of Personnel Services ('the Division') estimates that it would take an average of fifteen (15) minutes to examine each personnel file. It would take staff of the Division, with an average salary of $ 16.49 per hour, 291.765 hours to determine which employees received promotions. It is estimated that it would cost $ 4,810.96 just to make this initial step to comply with your request.
After the individuals who received promotions during the time covered by your request are identified, the Division would have to remove the P-1's from their files; copy the P-1's, redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 back into the personnel file; and copy the redacted P-1's for your inspection. The Division estimates that it would take an average of fifteen (15) additional minutes to complete these procedures for each employee who received a promotion.
It is this degree of specificity which KRS 61.872(6) envisions. See also, 97-ORD-88 (affirming Cabinet for Health Services denial of open records request on the basis of KRS 61.872(6)). 96-ORD-42, p. 2.
In the appeal before us, the Legislative Research Commission offers no specific proof to support it's claim that Mr. Collins's request is unreasonably burdensome. Instead, the Commission asks us to rely on our common sense, and to acknowledge the unique needs of legislators to maintain contact with their families and businesses while they are discharging their official duties in Frankfort. Although this office has recognized that "determining whether an application places an unreasonable burden upon a public agency . . . is at best difficult" OAG 90-112, p. 5, and that "we are not inclined to substitute our judgment . . . for that of the [agency]" when sufficient proof is adduced 96-ORD-42, p. 6, the Commission offers no proof beyond vague references to thousands of phone calls and bare allegations of an unreasonable burden.
While Mr. Collins's request may not be framed with absolute precision, it is by no means so casual as to constitute a blanket request for all records of all calls originating from all telephone lines assigned to all members of the legislature and all members of their staff. It is restricted to outgoing calls from two telephone lines for a period of just over one and one half years. In view of the limited scope of the request, and the absence of proof supporting its claim of an unreasonable burden, we find that the Commission improperly denied Mr. Collins's request.
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.