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 is before the Attorney General on appeal from the Department of Corrections' denial of the open records request of Charles B. Wells for:
A copy of any/all complaints brought against the Kentucky Department of Corrections or any of its divisions during the past two years that involve the issue of drug testing by Kentucky probation and/or parole officers.
A copy of any/all complaints brought against the Kentucky Parole Board during the past two years that involve the issue of drug testing by Kentucky probation and/or parole officers.
Responding on behalf of the Department, Tamela Biggs, Staff Attorney, denied Mr. Wells' request, stating, in relevant part:
Pursuant to KRS 61.872(6) your requests for "any/all complaints against the Kentucky Department of Corrections or any of its divisions . . . or the Parole Board . . . that involve the issue of drug testing by . . . probation and/or parole officers" are hereby denied.
Your request would place an unreasonable burden upon the office of General Counsel. This office receives approximately three hundred (300) new cases each year. The process to file and catalogue these cases does not include the term "drug testing. " Staff who handle such issues related to the issue of "drug testing" have been unable to recall the names of any plaintiffs which would assist in the location of any necessary files. These cases are typically challenges relating to inmate discipline within the institution. In order to determine if the requested complaints exist, attorneys and support staff would have to go through the files for all active and inactive cases, pulling each individual file to ascertain if the case involves the referenced issue. We cannot simply make our files available to you for your review, as they contain attorney work product and information subject to the attorney-client privilege.
This office, comprised of six-full time staff attorneys, a General Counsel and five support staff, is responsible [for] more than one thousand (1000) active cases and appeals, including personnel and board of claims cases, as well as the promulgation of administrative regulations for the Department as a whole and each of the twelve (12) state institutions. We prepare and monitor legislation, conduct training of institutional and Central Office staff regarding Policies and legal issues and advise the Parole Board and the Sex Offender Risk Assessment Board. In order to determine, with any degree of certainty if any complaints exist, staff would be pulled away from their normal duties to "research" the file index and the files themselves, thereby precluding them from assisting in the preparation and filing of pleadings, regulations and correspondence necessary to the daily operation of this complex division. This investigative process would require a large working space to spread out the files and require the development of a tracking system that would insure that files had been scoured. File use in this office is active. Pulling the files from their working place for review to determine whether they involve the issue of drug testing by "probation and/or parole officers" would be disruptive to the individuals who have a need for use of the file and this office.
We are asked to determine whether the Department's denial of Mr. Wells' request was a violation of the Open Records Act. For the reasons that follow, it is the opinion of this office that the Department has failed to adduce sufficient proof to meet the clear and convincing standard of proof that the Act requires public agencies to meet when they invoke KRS 61.872(6).
KRS 61.872(6) provides:
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.
Only if the agency has adduced clear and convincing evidence that would warrant this office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action, under KRS 61.872(6).
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 that KRS 61.872(6) envisions; compare, 95-ORD-2, which held that the Revenue Cabinet improperly invoked KRS 61.872(6) in denying a request for copies of all circuit court agreed judgments, entered into by the Cabinet in 1993 through September 1994, requiring payments in excess of $ 10,000. In that appeal, the Cabinet argued that its Legal Services Division maintained a case load well in excess of 200 cases during the time frame set forth in the request and had closed a "substantial number of files during that time." The Cabinet further argued that a manual retrieval and examination of these files would be time consuming, unduly burdensome, and disruptive of the essential functions of the Cabinet and that a portion of the Cabinet's litigation and settlements were handled by the Enforcement Legal Section of the Division of Collections, whose files are also not maintained in a fashion to readily respond to the request. We concluded that this was insufficient to establish by clear and convincing evidence that the request would be unduly burdensome.
In discussing the difficulty of assessing whether an open records request places an unreasonable burden upon an agency, this office has stated:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation. . . . However, it is stressed that this office has previously opined that a request to inspect 10,000 cases [is] certainly 'voluminous, ' but not necessarily unreasonably burdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
In the instant case, Mr. Wells requested copies of all complaints brought against the Department and the Parole Board during the past two years that involved the issue of drug testing by Kentucky probation and parole officers.
In our view, this description of the requested records is specific and narrow enough for the Department to identify and locate the records in question.
The complaint presumably would be one of the first records in the file, as it would be the case's initiating document, and could be easily located. As noted above, the Department acknowledges in its response that it has staff that handles such issues related to the issue of "drug testing. "
The Department states that it receives approximately 300 new cases each year, which suggests that the number of cases it may be required to search would be 600 for the two-year time frame of Mr. Wells' request. The Department argues that in order to determine if any complaints exist, it would have to search through the file index and the files themselves to locate such complaints. The Department makes no estimate of the time to manually search each file, but it seems to us that it could be done in a reasonably short time.
Moreover, the fact that the files are organized without separating confidential documents from nonconfidential documents could not serve as a basis for denying access under KRS 61.872(6). KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Under these circumstances, we conclude that the Department has not established with clear and convincing evidence that to comply with Mr. Wells' request would impose an unreasonable burden upon the agency. Accordingly, It should make the requested records available for his inspection. If any of the complaint records are exempt under an applicable exception in KRS 61.878(1), the agency should set forth that exception and briefly explain how that exception applies to the record withheld. KRS 61.880(1).
The Department, in its response to the letter of appeal, argues that allocation of staff to determine if the requested complaints exist, would hamper necessary duties of its office. If delay beyond the three day period is necessary, the custodian of the records must provide a detailed explanation of the cause of the delay and designate the earliest possible date, time and place in which the requested records will be available for inspection. KRS 61.872(5).
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.