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 Shepherdsville violated the Open Records Act in its disposition of James Craft's July 10, 2000, request for records and information relating to the Shepherdsville Wastewater Treatment Facility. For the reasons that follow, we find that the city's response was both procedurally and substantively deficient.
On July 10, Mr. Craft, Operations Manager for B & H Septic & Environmental Service, requested access to "a record of the following:"
* INFORMATION OF ANY AND ALL WASTE DISPOSED OF BY A BULK HAULER OR ENVIRONMENTAL FIRM IN THE PAST TWELVE MONTHS FROM THIS DATE (07-10-2000)
* A COPY OF THE PAST TWELVE MONTHS FROM THIS DATE (07-10-2000) OF THE SIGN-IN BOOKLET LOCATED AT THE TREATMENT PLANT FOR BULK HAULERS TO REGISTER THERE WASTE BEING DUMPED. INCLUDING ANY AND ALL INFORMATION PERTAINING TO THE ORIGIN OF THE WASTE BEING DUMPED.
* A RECORD OF ALL BULK HAULERS OR ENVIRONMENTAL FIRMS CURRENTLY PERMITTED TO DUMP WASTE AT THE BULLITT COUNTY (CITY OF SHEPHERDSVILLE) WASTE WATER TREATMENT PLANT.
In a response dated July 14, 2000, Shepherdsville City Clerk Tammy Owen advised Mr. Craft that she would be out of town during the week of July 17, but would gather the requested information and notify him of its availability when she returned on July 24. Despite continuous communications with the city, Mr. Craft had not received the records identified in his request as of the date of his open records appeal, August 29, 2000.
On behalf of the City of Shepherdsville, Norman R. Lemme, City Attorney, responded to Mr. Craft's appeal in a letter directed to this office dated September 6, 2000. He explained that although Mr. Craft "is aware of the bulk haulers who dump waste at the Shepherdsville Wastewater Treatment Facility," and is further aware that because of capacity problems, no new haulers are permitted to dump, he was enclosing records containing the names and addresses of the four bulk haulers who are permitted to dump waste at the facility. With reference to the remainder of Mr. Craft's request for "twelve months of records prior to July 10, 2000," Mr. Lemme asserted that despite the unreasonably burdensome nature of the request, "explanation was given to B & H and to their attorney that the City would attempt to comply but it would take time to do so."
Upon review of the responsive records, Mr. Lemme continued, the city determined that certain information was excluded from public inspection. Specifically, he noted that disclosure of the names and addresses of individual customers whose septic tanks were pumped would constitute a clearly unwarranted invasion of personal privacy, and that this information was redacted pursuant to KRS 61.878(1)(a) and 61.878(4). Additionally, Mr. Lemme noted that the names of "the individual hauler who dumped a particular site" were protected from disclosure by the exception relating to unfair commercial advantage. He indicated that upon prepayment of a $ 61.25 charge, based on the five hours expended by the city clerk in reviewing and redacting the records at a rate of $ 12.25 per hour, the city would furnish Mr. Craft with the "sixteen sheets listing the date and approximately 700 locations, but not actual addresses, of one year's dumping at the Shepherdsville Wastewater Treatment Facility . . . [and also excluding] the individual hauler who dumped a particular site as constituting . . . [an] unfair commercial advantage. "
As noted, throughout his response, Mr. Lemme referred to an agreement and understanding between B & H Septic's attorney, Mr. Zimmerman, and the city relative to the length of time required for agency response, and the appropriate charges for reproduction and redaction of the requested records. It was, therefore, his position that Mr. Craft was "engaged in activity aimed at disrupting the essential functions of the public agency. " An examination of each of the issues raised by the city's response follows:
City's claim that Mr. Craft's request places an unreasonable burden on the city, and is intended to disrupt essential functions
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.
Because Mr. Craft's request was for an identified, limited class of records for a discrete period of time, namely records relating to bulk haulers and the dumping of waste at the Shepherdsville Wastewater Treatment Facility for a twelve month period, the burden shifted to the city to support its claim of an unreasonable burden, or an attempt to disrupt essential functions, by more than a bare allegation. The only supporting proof the city offers in its response is that the city clerk expended five hours in redacting information for which exemption was claimed, and that Mr. Craft continued to inquire into the status of his request after the city and Mr. Zimmerman informally agreed on an extension of the three day deadline for agency response. In our view, this evidence is insufficient to support the city's claim under KRS 61.872(6). City failed to provide timely access to nonexempt public records
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. "Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the 'provision [of] services to the public.'" 00-ORD-117, p. 4.
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
Mr. Craft submitted his request on July 10, 2000. The city responded within three business days, but that response did not conform to the specific requirements set forth at KRS 61.872 (5) or KRS 61.880(1). Although the city intimated that the request would be honored in time, its response did not contain a detailed explanation of the cause of the delay, nor did it state the earliest date on which the records would be available. The temporary unavailability of the city clerk does not relieve the city of its obligations under the Open Records Act. 96-ORD-238, p. 3. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in his request, is, as we have noted, as much a public servant's legal duty as any other essential function." 00-ORD-117, p. 5.
On September 6, 2000, Mr. Craft was notified that the records he requested on July 10 were available. Thus, some forty business days elapsed between the date of his request and the date on which it was partially honored. Given the limited scope of his request, we find that delay of this duration was not reasonable, and that the city failed to afford Mr. Craft timely access within the contemplation of the Open Records Act. Any informal agreement between the city and B & H Septic's attorney, Mr. Zimmerman, to indefinitely extend the deadline for agency response did not abrogate Mr. Craft's right to a timely response under the Act since it was Mr. Craft who submitted the written request, and it was Mr. Craft to whom the city's response should have been directed.
Costs associated with production of nonexempt public records
In addition to, or in lieu of copying charges, the City of Shepherdsville seeks to recover staff costs for redaction of information from the public records for which an exemption was claimed. This action is not supported by statute or existing legal authority.
KRS 61.874(3) provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
In 95-ORD-82, the Attorney General analyzed this provision as it relates to an agency's KRS 61.878(4) duty to separate excepted and make nonexcepted material available for examination when the excepted and nonexcepted materials are commingled. At page 8 of that decision, we held that separating excepted material is not equivalent to the production of a record in a specially tailored format, or nonstandardized format, for which the agency can recover staff costs. Instead, we concluded that a public agency is required to discharge this duty under KRS 61.878(4), and that it must bear the cost of separating, or redacting, the excepted material. We believe that 95-ORD-82 is controlling and incorporate it in full. Accordingly, we find that Mr. Craft cannot be required to pay $ 61.25 in order to secure the records identified in his request, but can only be required to pay a reasonable copying charge based on its actual costs, meaning the cost of media and mechanical processing.
In
Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals declared that ten cents per page for standard hard copy records was not an unreasonable fee. Based on this opinion, and numerous open records decisions adopting it, we find that unless the city can substantiate that its actual costs, excluding staff time required, exceed ten cents per page, it must recalculate the charge for the records identified in Mr. Craft's request to conform to this amount. 98-ORD-95; 97-ORD-58; 96-ORD-273; 94-ORD-43; 92-ORD-1491.
Nondisclosure of "the individual hauler who dumped a particular site" pursuant to KRS 61.878(1)(c)1.
In partially denying Mr. Craft access to the records identified in this request, the City of Shepherdsville asserted that disclosure of "the individual hauler who dumped a particular site" would afford him an "unfair commercial advantage. " It is the opinion of this office that the city failed to sustain its burden of proof relative to invocation of the exception.
KRS 61.878(1)(c)1. excludes from public inspection:
Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records[.]
This office has consistently recognized that in order to qualify for exclusion under KRS 61.878(1)(c)1., public records must be:
1. confidentially disclosed to an agency or required by an agency to be disclosed to it;
2. generally recognized as confidential or proprietary; and
3. of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
See, e.g., 96-ORD-135; 97-ORD-66; 97-ORD-132. On at least two occasions, the Kentucky Supreme Court has analyzed this provision, concluding that the public agencies which had invoked it met their statutory burden of proof. In
Marina Management Services, Inc. v. Cabinet for Tourism, Ky., 906 S.W.2d 318 (1995), the Court held that records containing financial information of privately owned marina operators were exempt from disclosure. The Court reasoned that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. At page 319 of that opinion, the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditors Office. On these facts alone, the exemption clearly applies.
Thus, the Parks Department adduced sufficient proof to support invocation of the exemption.
Similarly, in
Hoy v. Kentucky Industrial Revitalization Authority, Ky., 906 S.W.2d 766 (1995), the Court found:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
Again, the public agency from which access to confidentially disclosed records of a private corporation was sought established that those records were generally recognized as confidential or proprietary.
These cases, along with the cited open records decision, confirm that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. In the appeal before us, the City of Shepherdsville has asserted that disclosure of individual bulk haulers who dumped a particular site would afford Mr. Craft an unfair commercial advantage but produced no proof to substantiate the claim. As we have so often stated, a bare allegation, without a supporting explanation, is not sufficient under the Open Records Act. See, e.g., 95-ORD-107 and
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996) (holding that KRS 61.880(1) requires public agencies to "provide particular and detailed information in response to a request for documents," and recognizing that a "limited and perfunctory response" does not "even remotely comply with the requirements of the Act . . ."). On this particular issue, we have observed:
Without going into an exhaustive and highly technical explanation, and thus defeating the purpose for which the exception was invoked, we believe that [the agency] could have offered a brief description of the competitive harm the private entities might suffer as a result of disclosure, and some proof, beyond a bare assertion, that the disputed records are generally recognized as confidential or proprietary.
96-ORD-135, p. 6.
It is by no means self-evident in what way Mr. Craft's competitors will be commercially disadvantaged by disclosure of their names in conjunction with the particular sites they serve. Absent proof to support the city's claim, we must conclude that its reliance on KRS 61.878(1)(c)1. as a basis for denying Mr. Craft access to this information was misplaced, and that it is obligated to restore these entries to the records to be released.
Nondisclosure of names and addresses of individual customers whose septic tanks were pumped
The City of Shepherdsville further relies on KRS 61.878(1)(a) as the basis for denying Mr. Craft access to the names and home addresses of individual customers whose septic tanks were pumped. This position finds support in existing legal authority, and we therefore affirm its partial denial of access to records containing this information.
KRS 61.878(1)(a) excludes from inspection "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Although we have never had occasion to address the precise issue that this appeal raises, in 96-ORD-176 we recognized that private customer billing records in the custody of a public utility were exempt pursuant to KRS 61.878(1)(a). At pages 3 through 5 of that decision, we observed:
We begin with a determination of whether the records requested contain information of a personal nature. Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky. 826 S.W.2d 324 (1992); Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994). If so, we must next determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy. "This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Board of Examiners at 327.
Customer billing records contain information which "touches upon the personal features of private lives." Zink at 828. To the extent that the information "can be used to infer a particular life style of a residential customer or suggest the competitive position of commercial and industrial customers, " it is not unreasonable to assume that [the] customers have at least some expectation of privacy in their billing records. See e.g., KRS 132.275 (providing that information about "persons, firms, or corporations" receiving utilities services which is furnished to the property valuation administrator "shall be treated as confidential" ); compare OAG 82-128 (holding that a city can, by ordinance, require the publication of the names of persons who are delinquent in paying their sewer and water bills). Thus, we conclude that billing records contain information of a personal nature.
The next step in our analysis is to determine whether an invasion of privacy is nonetheless warranted because the public's interest in disclosure outweighs the utility customers' privacy interest. . . . The relevant public interest supporting disclosure in this appeal does not outweigh the privacy interests of individual customers in their billing records. Disclosure of these records would not subject agency to public scrutiny in any meaningful way. While [a requester's] purpose may be a laudable one, "we must consider the fact that other parties . . . [including] the merely curious, would have the same access under the Open Records Act as the [requester] seeking the information in this case." Zink at 829. Release of specific billing information, which identifies individual users and their individual water and sewer usage, is, in our view, simply too invasive.
By the same token, we believe that disclosure of records containing names and addresses of individual customers whose septic tanks were pumped does not further any open records related public purpose, and that the competing privacy interests of the individual customers outweighs any unarticulated public purpose. Accordingly, we find that the City of Shepherdsville properly redacted these entries from the records it has indicated its willingness to disclose.
Conclusion
In sum, we find that the City of Shepherdsville erroneously relied on KRS 61.872(6) as the basis for postponing access to the records identified in Mr. Craft's request, and that the duration of the delay in notifying him of their availability was inordinate given the fact that he requested a limited class of records for a discrete period of time. Further, we find that the $ 61.25 charge the city seeks to impose is clearly excessive, and improperly factors staff time expended into its calculations. Unless the city can substantiate that the actual cost of reproducing the records exceeds ten cents per page, based on medium and mechanical processing costs, but excluding staff costs, it must recalculate the charge to conform to these principles. Finally, we find that although the City of Sheperdsville produces insufficient evidence to support its claim of exclusion for records identifying the individual bulk haulers who dumped a particular site, its reliance on KRS 61.878(1)(a) as a basis for denying access to individual customer information was proper and correct. The City of Shepherdsville is directed to take the appropriate measures to correct these violations, and is urged to bear these observations in mind 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 proceedings.