Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 Kentucky State Reformatory's (KSR) actions relative to the July 9, 1998 open records request of Dennis Isaacs to inspect:
Any and all mail rejection slips regarding the Church of Jesus Christ Christian which was confiscated and/or withheld from me from 1995, up to and including the present time.
Raymond David Watson filed an open records appeal with this office on behalf of Mr. Isaacs. In his letter of appeal, Mr. Watson stated that, as of July 20, 1998, Mr. Isaacs had received neither the requested records nor a response from the KSR.
After receipt of Mr. Watson's letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the KSR and enclosed a copy of the letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, provided this office with a response to the issues raised in the letter of appeal.
In her response, Ms. Biggs, in part, stated that she had discussed Mr. Watson's letter of appeal with Sharon Maynard, a caseworker with the Department. Ms. Maynard advised that Mr. Isaacs brought his open records request to her on July 9, 1998, and, on the same date, she hand-delivered the request to the KRS mailroom for processing. On July 13<th> or 14<th>, she verbally informed Mr. Isaacs that it would take the mailroom personnel some extra time in which to fulfill his request, as the mailroom personnel stated they would have to look through records which were in storage in order to provide the requested rejection slips. Ms. Maynard stated she could not give Mr. Isaacs a precise day and time when the records would be available, as the mailroom personnel did not know how long it would take to locate the records and review same. Ms. Maynard further advised that she did not make a written notation of this conversation with Mr. Isaacs on the request form. Once the documents were located, Mr. Issacs was notified and, on July 22, 1998, received copies of all requested rejection slips issued in 1998.
We are asked to determine whether the actions of the KSR in responding to Mr. Isaacs's request were consistent with the Open Records Act. For the reasons which follow, we conclude the agency's response, although procedurally deficient, was substantively consistent with the Act.
KRS 61.880(1) requires that the public agency notify the person making the open records request, in writing, of its decision in response to the request. KRS 61.872(5) provides that, if there is to be a delay in producing the requested records which exceeds three business days after receipt of the request, that the agency give the requester a detailed explanation for the cause of further delay and the place, time, and earliest date on which the public record will be available for inspection.
Ms. Maynard notified Mr. Isaacs, verbally, that it would take mailroom personnel extra time to fulfill his request and explained the records were in storage and personnel would have to sort through the records to provide the requested records. She did not give a precise day and time when the records would be available as the mailroom personnel did not know how long it would take to locate the records and review them.
The KSR's initial response to Mr. Isaacs's request was procedurally deficient because it was not in writing, as required by KRS 61.880(1). Ms. Biggs, in her response, explained that this was the first open records request to which the caseworker had ever responded. While lack of familiarity with the Open Records Act may explain the agency's procedural violation of the Act, it does not excuse the violation. 98-ORD-90.
The initial response was also deficient in that it failed to inform Mr. Isaacs as to earliest date the requested records would be available for inspection, as required by KRS 61.872(5). After explaining the cause for delay in providing the requested records, the earliest date on which the record would be available for inspection was not provided. Failure to give a date, even though it may only be an estimate, does not give the requester (or this office in reviewing the issue on appeal) enough information to determine whether access to the records will be provided within a reasonable period of time.
We now address the substantive issue. Ms. Biggs, in her response to the letter of appeal, stated the KSR denied Mr. Issacs's request for all rejection slips from 1995 to date, on the basis of KRS 61.872 (6). 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.
Ms. Biggs stated that the request would impose an unreasonable burden on mailroom personnel as well as disrupt the processing of mail, thereby denying the delivery of some, or all, of the mail past the 24 hour time limit for delivery as set forth in Corrections Policies and Procedures 16.2. Elaborating on this position, she explained:
Two full-time staff are processing between 45,000 and 50,000 pieces of incoming and outgoing mail (excluding bulk or religious mail, magazines, catalogs) per month. These employees are also preparing certified mail for staff and inmates, inspecting mail and packages for contraband or unauthorized items and filling out the appropriate logs regarding receipt of legal mail and rejection of certain letters or items. Between 75 and 100 rejection notices are issued each month. November and December are traditionally the busiest months for the institution's mailroom, causing substantial increases in the aforementioned numbers. An employee had to be pulled from these duties to manually go through the rejection notices for 1998. Departmental policy requires the delivery of mail to an inmate within 24 hours of receipt, except weekends and holidays. Therefore, it is the Department's position that it would impose an unreasonable burden upon the mailroom and its staff to produce the requested rejection notices.
We concur with the Department's position. Mr. Isaacs requested copies of rejection slips issued to him by the KSR mailroom over a three and a half year period. Although Mr. Isaacs was provided with copies of the rejection slips issued in 1998, Ms. Biggs documents, in great detail, the difficulty associated with retrieving the requested records, and the resulting disruption of the essential functions of the mailroom personnel. In so doing, she sustains KSR's burden of proving, by clear and convincing evidence, that Mr. Isaacs's request places an unreasonable burden on the agency. Accordingly, we affirm the KSR's denial of Mr. Isaacs'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.