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 Kentucky Board of Barbering properly relied on KRS 61.872(6) in denying Douglas Clapper's January 24, 2000, request for "all records for the licenseing [sic] of George Shunnarah as owener [sic] and manager of National College of Barbering . . ., and copies of all letters from Steve Kennedy of Tri City Barber College, attesting to the fact that Mr. Shunnarah has the required time . . . to manage a barber school." For the reasons that follow, we find that although the Board of Barbering based its denial on a good faith claim that Mr. Clapper's open records requests are unreasonably burdensome and disruptive of its essential functions, the Board provided insufficient proof to support this claim. We therefore do not affirm its denial of Mr. Clapper's January 24 request.
In a response dated January 25, 2000, Kentucky Board of Barbering Administrator Bill Maggard, Jr., denied Mr. Clapper's request. Relying on KRS 61.872(6), he maintained that Mr. Clapper's "repeated requests place an unreasonable burden on the Board and have disrupted essential functions of the agency." This appeal followed.
In a supplemental response directed to this office, Mr. Maggard elaborated on the Board's position. He explained that since Mr. Clapper left the Board in June, 1998, "the Board has documented numerous phone calls, letters, and facsimiles from [him]." In support of the Board's argument that Mr. Clapper's repeated requests were unreasonably burdensome, and intended to disrupt the Board's essential functions, Mr. Maggard tendered a loose-leaf binder measuring approximately four and one-half inches in width. In it the Board documented each written communication and telephone contact with Mr. Clapper in the period between August, 1998, and February, 2000, including numerous open records requests. It was the Board's position that these records, documenting six duplicative records requests and the often hostile character of his communications, establish by clear and convincing evidence that Mr. Clapper's current requests place an unreasonable burden on the agency to produce records, and are intended to disrupt its essential functions. In closing, Mr. Maggard noted that the Board of Barbering "has dealt with Mr. Clapper approximately (74) days since July, 1998[, and] this is too much to ask of an agency." On the facts presented, we do not find that Mr. Clapper's January 24 request can properly be denied on the basis of KRS 61.872(6).
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:
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.
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. There we held that 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)); compare, 99-ORD-4 (holding that proof of four requests in a four and one-half week period did not establish an unreasonable burden or an intent to disrupt essential agency functions).
Because Mr. Clapper's January 24, 2000, request was for an identified, limited class of records, namely licensure records relating to George Shunnarah as owner of National College of Barbering, and letters from Steve Kennedy attesting to Mr. Shunnarah's qualifications, the burden shifted to the Board of Barbering to justify its denial. The Board's original denial of the January 24 request contained little more than an unsupported allegation of an unreasonable burden. The Board supplemented that denial upon receipt of this office's notification of appeal by furnishing us with a copious record documenting all exchanges, written and verbal, with Mr. Clapper from July, 1998, to the present. Our review of that supplemental denial discloses that in a period of approximately twenty months, the Board received roughly thirty requests for records, some of which cannot technically be characterized as open records requests (for example, requests for copies of his license for which the Board charged him ten dollars, and requests for copies of "law books"). Thus, on average the Board received 1.5 open records requests per month.
While this represents the proverbial tip of the iceberg relative to the total number of exchanges, written and verbal, that occurred in the same period, we must restrict our analysis to the January 24 records application, and the roughly 29 requests that preceded it as a basis for establishing an unreasonable burden or an attempt to disrupt essential functions. While we agree that the tenor of these written and verbal exchanges is evidence of the animosity Mr. Clapper bears toward the Board, we believe the most compelling evidence of an intent to disrupt is the proof presented of six duplicative requests. Ultimately, however, we do not believe that this constitutes sufficient empirical evidence to support a claim under KRS 61.872(6), where the record demonstrates a total of only thirty requests in twenty months.
In closing, we note that in certain months, for example November and December, 1998, Mr. Clapper's open records activity rose to a level which might be characterized as unreasonably burdensome or intentionally disruptive. The Board did not invoke KRS 61.872(6) as a basis for denying his multiple requests in these months. In recent months his level of open records activity has declined. We do not mean to suggest that the Board of Barbering could not at some point build a successful case that Mr. Clapper's requests have become unreasonably burdensome, only that it has not done so in the appeal before us. As we observed in 96-ORD-193:
Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case .
96-ORD-193, p. 5 (emphasis added). Although it advances its KRS 61.872(6) argument in good faith, to date the Board of Barbering has failed to build such a case.
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.