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 questions presented in this appeal is whether the Pike County Board of Education violated the Open Records Act in responding to various open records requests submitted by Barry Johns. For the reasons that follow, we conclude that the Board's responses were entirely consistent with the Open Records Act.
Mr. Johns's July 28, 1999, letter of appeal consists of eighteen pages of requests, some typed and some handwritten, some dated and some undated, in which he identifies at least ninety documents or categories of documents relating to the operations of the Pike County Board of Education. In particular, Mr. Johns focuses on records reflecting the rendition of legal services by the law offices of Todd & Smith and Rick King. The following represents a partial summary of those requests:
* 2-25-99 request - invoices submitted by Todd & Smith to Joe Taylor from 7/97 - 12/97;
* Undated request - videotape and minutes of 4/98 Board of Education meeting;
* all fax transmissions sent by and received at fax number 432-3321 for October, November, and December 1999 to 23 named individuals as well as state and federal agencies and media organizations;
* letter from John Blackburn to Reo Johns referred to at January 13 Board of Education meeting;
* John Blackburn's request to Rick King that he look into allegation concerning board member's residency status;
* Undated request - 36 documents or "lists" generated in July, August, September, and October, 1997, and derived from previously disclosed attorney billing records;
* 33 documents or "lists" generated in November, 1997, and derived from previously disclosed attorney billing records;
* 14 documents or "lists" generated in December, 1997, and derived from previously disclosed attorney billing records:
Examples of the latter three requests include the following:
* List items discussed in phone conference with John Blackburn regarding various legal matters on 9/2/97. .25 hours: $ 22.50.
1. hours: $ 225.00.
Mr. Johns asks that the Attorney General review the Board of Education's "decision to withhold this public information."
Also included in Mr. Johns's letter of appeal is a three page response to his requests, dated March 5, 1999, and prepared by Neal Smith, attorney for the Pike County Board of Education. The text of that response appears below:
I have received from the Central Office of the Pike County Board of Education various open records requests that you have filed with the Pike County Board of Education. The vast majority of your requests are not directed toward documented records, but rather are requesting that the Board's counsel and others try to recall the specific subject matter of various phone conversations over the past few years. The Pike County Board of Education would object to these requests in as much as you are requesting that the Board of Education compile a list of topics that are not of record nor are they readily identifiable. You have also requested a definition of KRS 160.300 regarding the subpoena power of the Board of Education. We likewise object to this request and would suggest that you contact your personal counsel for a legal opinion.
The specific requests for which we will attempt to provide you documentation is your request for invoices submitted by Todd and Smith Law Firm from June 1997 through December 1997, invoices submitted to the Board of Education from Todd and Smith Law Firm for the month of January, 1999 as well as invoices submitted to the Board of Education from Rick King Law Offices for the month of January, 1999 and other requests for particular documents.
I have requested that the Central Office staff attempt to locate the letter from John Blackburn to Reo Johns dated October 31, 1997, however, I do not know if Mr. Johns properly filed this open records request and it is my understanding that Mr. Johns did not properly respond to that request. I have also requested that the staff retrieve and copy any Interagency Agreement between KYA and the Pike County Board of Education.
You have also requested a list of various contractual documentation regarding KYA and the Pike County Board of Education. Since your requests do not specify a particular document there is not enough information for myself or the Central Office staff to respond to that request. I have also requested that the Central Office staff attempt to locate any letter to Mr. Alvin Newsome dated October 31, 1997 regarding the Kentucky Youth Academy investigation that you referenced in your records request as well as any letter from Alvin Newsome to the Hon. Neal smith dated October 31, 1997.
I have also requested a copy of a letter dated December 30, 1997 to BOE members regarding the Sycamore property and other issues and I have requested a copy of the video tape of the April, 1998 Board of Education meeting. The Board of Education does not have a record of all facsimile transmissions and thus has no reasonable means with which to respond to your request for "All fax transmissions sent and received from fax number 432-3321".
I have requested a copy of any letter on record from Mr. John Blackburn to Mr. Reo Johns in which he submitted an open records request. I have also requested a copy of any letter on file from Mr. Blackburn to the Hon. Rick King requesting an inquiry into the actual residence of Shannon Justice. At this time I can refer you to the OEA charges alleging that Mr. Justice was a resident of Daviess County, Kentucky which might have been the inquiry to which Mr. Blackburn was alluding.
In summary I will attempt to provide you with documents regarding the following requests, number 2 of your request headed "July, August, September 1997"; number 4, 6, 34 and 36 of your request headed "October 1997"; none of your requests under the heading of "November 1997" and number 11 of your request under the heading "December 1997". We will also attempt to provide you with the documents requested in numerical paragraphs 3 and 4 of your handwritten open records request for which there is no date and in which you requested a copy of a purported January 13 letter from John Blackburn to Reo Johns and a copy of any letter from Mr. Blackburn to the Hon. Rick King inquiring about the actual residence of Shannon Justice.
In closing, Mr. Smith affirmatively stated that there are no other records in existence that are responsive to any remaining open records requests properly submitted by Mr. Johns. Given the breadth of the requests, Mr. Smith asked Mr. Johns's indulgence in allowing Central Office Staff ten days to locate, retrieve, and copy the records. He advised Mr. Johns that he could then retrieve the records at the Central office upon advance payment of copying charges. Mr. Johns apparently elected to ignore these directions, and some five months later initiated this appeal.
In a supplemental response directed to this office, Mr. Smith explained:
In the past few months the Board of Education of Pike County has received no less than sixteen (16) Open Records requests from Barry Johns, some of which are twenty (20) pages and contain nearly two hundred (200) requests. May of these requests are not directed toward documentation, but seeking legal opinions, the subject of conversations and other information which is not at all contemplated under the Open Records statute.
To my knowledge the Board of Education has responded to each and every request received from Mr. Johns. Much of the information sought by Mr. Johns was simply not available and he was so advised. Many of the documents requested by Mr. Johns were prepared by the Board of Education Central Office staff for delivery to Mr. Johns upon payment of the cost of copying. On some occasions he would never appear to pay the copying cost and to retrieve the documents that were prepared for him at his request. Many of these copies remain in the office at the Pike County Board of Education.
Nevertheless, Mr. Smith indicated that if Mr. Johns could specifically identify any open records requests that have gone unanswered, the Board of Education would address them. He reiterated that in his view neither he nor the Board is obligated to reveal the content of conversations protected by the attorney-client privilege, assuming for the sake of argument that records existed documenting those conversations or that the could precisely recall what was said some two years later. We concur with Mr. Smith, and the Pike County Board of Education, in their analysis of the Open Records Law, and their duty under the law, and find that the Board has complied in all material respects with the law's requirements.
With respect to attorney billing records and records protected by the attorney-client privilege, this office made its position clear in 99-ORD-174. The Board must (and has) released billing statements prepared by its attorneys, but may, consistent with the principles set forth in OAG 92-14 and OAG 92-92, redact substantive legal matters protected by the attorney-client privilege. Again, we find these opinions dispositive, and incorporate them by reference. We do not intend to suggest, in so holding, that these records should be used as a basis for formulating open records requests aimed at invading privileged communications, or that an agency is obliged to create lists of items discussed, persons consulted, or steps in conducting legal research. Mr. Johns is entitled to know the amounts paid from public coffers for the rendition of legal services, and the general nature of the legal services rendered.
Mr. Johns is not entitled to a free copy of these records. 94-ORD-90 (enclosed and incorporated by reference). Because he resides in the county where the records are maintained, and has failed to precisely describe records which are readily available within the agency, he can be required to conduct an on-site inspection prior to obtaining copies, and to prepay for those copies. 93-ORD-93 (enclosed and incorporated by reference). Finally, he cannot compel the agency to create records which do not exist. 96-ORD-139 (enclosed and incorporated by reference). Assuming Mr. Johns is sincere in his desire to inspect and obtain copies of the existing nonexempt public records identified in his request, we suggest that he act on the Board's directions and retrieve those records from the Central Office upon prepayment of reasonable copying charges. In our view, he has no legitimate basis to complain.
In view of the voluminous and often duplicative nature of his requests, we remind Mr. Johns that KRS 61.872(6) authorizes public agencies to deny records applications on the grounds that they are unreasonably burdensome or intended to disrupt the agencies' essential functions. In an early opinion, this office recognized:
[Public] 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. Although it has not yet advanced this argument in support of the decision to deny any requests submitted by Mr. Johns, the Pike County Board of Education may someday successfully do so upon presentation of clear and convincing evidence. While public agencies are expected to "exercise patience and long-suffering in making public records available for public inspective," OAG 77-151, p. 3, voluminous and duplicative requests of the character of Mr. Johns's request entail a measure of patience and long-suffering that the law does not envision. Mr. Johns may wish to bear these observations in mind in formulating 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.