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 City of St. Matthews Police Department properly relied on KRS 61.872(6) in denying Stacy Kivor Feinberg's May 17, 1999, request for "statistics regarding calls for service (CFS) and offenses from 1990 through 1995 regarding the 4600 and 5000 blocks of Shelbyville Road." Ms. Feinberg is a paralegal in the law firm of Brown, Todd & Heyburn whose services she offered the Department to support it "in accomplishing this request." For the reasons that follow, we find that the Department violated KRS 61.880(1) in failing to respond to Ms. Feinberg's May 17 request in writing. We further find that the Department failed to produce clear and convincing evidence that Ms. Feinberg's request is unreasonably burdensome. Accordingly, we cannot affirm its denial of that request on the basis of KRS 61.872(6) or the other bases asserted.
In December, 1997, Ms. Feinberg submitted a similar, although not identical, request to the Department. On behalf of the Department, St. Matthews city attorney Foster L. Haunz denied that request. Relying on KRS 61.872(6), he explained:
The information requested would require a qualified person to manually page through thousands of pages to compile the requested statistics. Such would require the diversion of substantial resources from public protection.
The Department did not issue a written response to Ms. Feinberg's May, 1999, request, apparently relying on the arguments advanced in its earlier response, but denied the request by telephone. Shortly thereafter, Laura M. Haara, an attorney at Brown, Todd & Heyburn, initiated this appeal, reiterating that the firm would furnish attorneys and paralegals to review the records and extract the information sought, thus relieving the Department of any undue burden. In support, Ms. Haara cites 97-ORD-6.
In a supplemental response directed to this office, Mr. Haunz elaborated on the Department's position. He asserted that Ms. Haara's appeal was neither timely (since the Department's denial was dated December 22, 1997), nor initiated by the proper party (since Ms. Feinberg submitted the request and the Department's denial was directed to her). Turning to the substantive issues in the appeal, Mr. Haunz argued:
The information is not readily available. Attached is a copy of the Records Retention Schedule for the Police Department. Records are being requested from December 11, 1990 through December 11, 1995. A part of the records may exist back to the year 1994, however, the boxes would have to be first retrieved then the pages access one page at a time. We believe that the original refusal was correct and should be upheld, particularly where the records, in large part no longer exist, occasioned in part by the nearly 19 month delay in any appeal.
(Emphasis in original.) The attached memorandum concerning the Department's records retention schedule indicates that radio run cards are destroyed after two years, and the Department has "exactly two years worth at a time on hand." The memorandum also indicates that offense reports are maintained "back to the year 1994 [and] . . . are in archive storage," substantiating Mr. Haunz's assertion that many of the records requested no longer exist. In our view, these facts tend to diminish, rather than support the Department's claim of an unreasonable burden. Accordingly, we reject that claim for many of the same reasons set forth in 97-ORD-6.
In 97-ORD-6, this office was asked to determine if a request for specific information appearing on accident reports was unreasonably burdensome where the requester agreed to provide all manpower necessary to extract the information. We concluded that the request was not unreasonably burdensome, relying on OAG 89-76. In the latter opinion, the requester asked to inspect all automobile accident reports prepared by a local police department during a four week period. The department resisted disclosure, arguing that the request would impose an unreasonable burden, and an appeal followed. The Attorney General held that the department had not made a sufficient showing of undue burden since the requester could "be shown where the reports are filed and review the reports himself." Applying this reasoning to the facts presented in 97-ORD-6, the Attorney General observed:
OAG 89-76 echoes a line of Attorney General opinions dating back to 1976 when the Open Records Law was enacted. In OAG 76-375, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he "may 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 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 requester asked that he be allowed ". . . to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the requester had "not made any demand on [the] agency which is beyond the scope of the Open Records Law. " Id. Finally, in OAG 84-278 the Attorney General held that a request for 10,000 records, although "certainly 'voluminous', . . . is not indicative of an 'unreasonable burden' on the office[]" where the requester stated that she was willing to inspect the records a few at a time. OAG 84-278, p. 2.
97-ORD-6, p. 4. Here, as in OAG 89-76 and 97-ORD-6, the requester has agreed to provide all manpower necessary to collect the information sought, eliminating much of the burden associated with production of the desired records. Here, as in the cited open records decisions, the requester "is asserting nothing more than [her] right, under KRS 61.872(3)(a), to inspect public records during regular office hours of the public agency. " 97-ORD-6, p. 4. And, here, as in our earlier decisions, we find that "such a demand is within the scope of the Open Records Law. " Id. 1
Moreover, the Department's argument that production of the records for inspection is unreasonably burdensome is not supported by clear and convincing evidence. In his 1997 response, Mr. Haunz suggested that the request encompassed "thousands of pages." In his 1999 supplemental response, he indicates that as a result of the passage of time records containing the information sought have, "in large part" been destroyed pursuant to the Department's records retention and destruction schedule. 2 Although offense reports exist back to the year 1994, Mr. Haunz notes that "the boxes would have to be first retrieved. . . ." On this basis, he reaffirms the department's earlier position. We do not believe that this position is legally sound.
Given the reduction in the number of documents implicated by Ms. Feinberg's request resulting from their destruction over time, we are left with offense reports generated in a period of two years (1994 and 1995). 3 Although the St. Matthews Police Department indicates that these reports have been archived, the Department provides no explanation of the difficulties associated with locating and retrieving them, or an estimate of the number of records involved. As noted, the burden associated with sorting through the records to extract the information sought has been eliminated by Brown, Todd & Heyburn's offer to furnish all necessary manpower. A bare allegation that the request is unreasonably burdensome will not suffice.
Although Mr. Haunz has not asserted that portions of the reports may be excluded from public inspection by operation of one or more of the exceptions to the Open Records Law, we remind the St. Matthews Police Department that:
the presence of some exempt information in the . . . reports does not relieve the department of its obligation to provide all nonexempt information. KRS 61.878(4) provides:
If the reports which [the applicant] requests access to contain both exempt and nonexempt information, the department may delete the exempt information, after stating, in writing, the statutory basis for withholding that information. As we observed at page 3 of OAG 89-76:
Stated alternatively, "The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4.
97-ORD-6, p. 4-5.
Pursuant to KRS 61.872(1) and KRS 61.872(3)(a), the St. Matthews Police Department is required to make available for public inspection all nonexempt records in its custody during the Department's regular office hours, and to provide suitable facilities for the exercise of this right. "Unreasonable restrictions upon inspection may not be imposed." OAG 89-81, p. 4. Although KRS 61.876(1), as construed by this office, permits the Department to designate an employee to monitor inspection of the records, it cannot condition the public's right of inspection on the availability of that employee. Consistent with these principles, the Department should promptly arrange for Ms. Haara and her staff to inspect offense reports for the years 1994 and 1995. As in 97-ORD-6, "inspection of the records [she] seeks . . . may require days, or perhaps weeks, but the process must be begun." 97-ORD-6, p. 5 citing OAG 89-81, p. 4.
In closing, we note that neither of the Department's procedural arguments are meritorious. Inasmuch as the Open Records Law contains no "statute of limitations," this appeal is not time barred. Inasmuch as the Open Records Law does not require that the "real party in interest" pursue his complaint by appeal to the Attorney General, this appeal cannot be dismissed on the grounds that it was not initiated by the original requester. Conversely, we find that the St. Matthews Police Department's failure to respond in writing to Ms. Feinberg's May 17, 1999 , request constituted a procedural violation of the Open Records Act. An oral response to a records request does not satisfy the requirements of KRS 61.880(1). Nor is that statute satisfied by reference to an earlier denial of a similar request submitted by the same party. As the Kentucky Court of Appeals observed in
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996):
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
The Department should be guided by these comments, along with the clear language of KRS 61.880(1), in responding to future open records requests.
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.
Footnotes
Footnotes
1 At page 4 of 97-ORD-6, we rejected the argument that the request did not conform to the technical requirements of the Open Records Law because it was, in reality, a request for information, reasoning:
While it is certainly true that public agencies are not required to compile information to satisfy [a request for information], we believe that 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 in original).
2 We have confirmed, through the Department for Libraries and Archives, that the St. Matthews Police Department's records policies are consistent with the Local Government Model of the State Records Retention Schedule.
3 Only radio run cards for the past two year still exist, and these records are not responsive to Ms. Feinberg's request.