Request By:
Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Opinion
Opinion By: Albert B. Chandler, III, Attorney General; Monica M. McFarlin, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky Labor Cabinet's partial denial of an open records request by David G. Sarvadi, on behalf of his client Tyson Shared Services, Inc. (Tyson), to inspect and receive copies of Cabinet records "relating to any incident of a work related fatality for a period of January 1, 1998 to present."
By letter dated May 2, 2000, Mr. Sarvadi requested to inspect the following records:
1. For all occupational fatalities that occurred in Kentucky from January 1, 1998 to present, a list of all inspection cases opened in response to the fatalities whether or not the cases led to physical inspection of the fatalities where the fatalities occurred;
2. For all occupational fatalities that occurred in Kentucky from January 1, 1998 to present, all records identifying the administrative details of resulting inspections, including but not limited to the identity of the lead inspector, members of the inspection team, the identity of the supervisor, the safety and health division or department chief, and any of the staff involved in decisions regarding the nature and scope of the resulting inspection;
3. All OSH-1 forms and Modification OSH-1 forms;
4. All memoranda, records or other documents which reference the amount of time which inspectors spent at the inspection site;
5. All documents which identify the alleged violations underlying the citations, or the amount of any fines which were issued in relation to the above referenced incidents;
6. All documents, reports or databases containing information regarding the number of inspectors assigned to conduct the inspection of a workplace subsequent to a fatality; and
7. All documents which provide the basis for any decision made by the Kentucky Labor Cabinet to assign more than one inspector in the inspection of a workplace subsequent to a fatality.
On behalf of the Labor Cabinet, Ms. Margaret Goodlett Miles responded to Mr. Sarvadi's requests in a letter dated May 9, 2000. She advised him in part, as follows seriatim, relative to his numbered requests 1 - 7, set out above:
1. Enclosed please find a computer printout of inspections from January 1, 1998 to present. The fatality inspections have been highlighted. The Kentucky Occupational Safety and Health Program investigates every workplace fatality and catastrophe (accident resulting in three or more employees being hospitalized). The printout lists the company name, location, date of occurrence, investigator's hours, penalty assessed and the present status of the investigation.
2. This information is not releasable pursuant to KRS 61.878(1)(i) and (j) to-wit: correspondence with private individuals; and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
3. The files would have to be retrieved manually and the OSH-1 and MOD's would have to be copied; consequently, this is too voluminous and burdensome considering that there are forty-seven fatality files. KRS 61.872(6) provides that if the application places an unreasonable burden in producing voluminous public record, the application can be denied.
4. The enclosed printout shows total hours per investigation. These hours include hours on-site, writing and reviewing the report. A breakdown of on-site hours only is not available.
5. Pursuant to KRS 61.872(6) providing this information is too voluminous considering the number of files, and this request is being denied.
6. There is not a database containing this information. The OSH report may contain the identity of parties assisting with the investigation; however, the number of files is too voluminous to be manually retrieved for this information. Pursuant to KRS 61.872(6) this request is being denied.
7. No such documents exist.
In his letter of appeal, Mr. Sarvadi identified the records that he contends the Labor Cabinet wrongfully denied access to and the information that the agency failed to produce as follows:
More particularly, the Labor Cabinet failed and refused to produce documents and information to the following requests: (1) OSH-1 and Modification of OSH-1 Forms for the forty-seven fatality files identified on the "FAT REPORT"; (2) documents identifying the alleged violations underlying the citations for the forty-seven fatality files identifying on the "FAT REPORT"; (3) the amount of fines for each of the forty-seven identified fatalities; and (4) the number of inspectors assigned to each workplace fatality inspection. In addition, the Labor Cabinet denied Tyson's request for information about all Kentucky occupational fatalities that occurred during the above time period and all records identifying the administrative details of the inspections of such facilities, contending that such information was "not releasable" pursuant to KRS 61.878(1)(i) and (j).
The information and documents requested by Tyson is exempt from disclosure neither because such information is privileged nor preliminary in nature, nor will its production place an "unreasonable burden" on the Labor Cabinet. See KRS 61.878(1)(i) and (j); KRS 61.872(6).
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Kembra Sexton Taylor, General Counsel, provided this office with a response, on behalf of the Cabinet, to the issues raised in the appeal. Elaborating on the agency's initial response, Ms. Taylor explained:
The Labor Cabinet conducted a computer search of all KOSH inspections conducted between January 1, 1998, and the date of Mr. Sarvadi's request. Ms. Miles provided Mr. Sarvadi with a copy of that computer printout, with the forty-seven (47) fatality investigations highlighted. The computer printout listed, among other things, the company name; location of the facility; date of the occurrence; the number of hours the investigator spent on the inspection; the violation cited, if any; the penalty assessed; and the present status of the investigation. The information contained in the computer printout was taken from the case files as they were completed.
The Labor Cabinet gave Mr. Sarvadi a list of all of the KOSH fatality inspections conducted during the relevant period; therefore, the agency completely fulfilled Request No. 1. It must be noted further that the computer printout actually gave Mr. Sarvadi much more than he sought in Request No. 1, including some of the information he now claims he did not receive.
?
The Labor Cabinet interpreted Mr. Sarvadi's second item as a request for all documents contained in the forty-seven fatality inspections conducted during the relevant time period. Some of the information contained in the files is confidential, including preliminary discussions about enforcement activities, the compliance officers preliminary work notes, and information identifying employees contacted during the inspection. See OAG 92-90; 93-ORD-138; 97-ORD-10. The remaining information would have to be sanitized, and it would be too burdensome to do so. See discussion following Request No. 3, below. Furthermore, Request No. 2 is actually a request for information, as distinguished from a request for identifiable documents, and therefore can properly be denied. OAG 90-100. Ms. Miles would have to review the forty-seven files, extract the information Mr. Sarvadi requested, and redact any confidential information from the documents that identify in any way the identity of the inspectors, supervisors, division or department chief, and staff involved in decisions regarding the nature and scope of the inspection.
?
In item three [all OSH-1 forms and Modification OSH-1 forms], Mr. Sarvadi asked the Labor Cabinet to retrieve forty-seven fatality investigative files, most of which are very large since they involve litigation, review those files, and photocopy administrative assignment forms. KRS 61.872(6) provides that if the application places an unreasonable burden in reproducing voluminous public records, the application can be denied. The Labor Cabinet estimated that it would require Ms. Miles working full time for two weeks to retrieve the forty-seven files, review them, redact any confidential information, and photocopy administrative assignment forms. Ms. Miles responds to several Open Records Requests each day, and it would be an unreasonable burden on the Labor Cabinet designed to disrupt other essential functions. OAG 83-386; OAG 89-88; and OAG 90-112.
?
The computer printout that Ms. Miles sent to Mr. Sarvadi listed the total amount of time expended per investigation. That number included the number of hours spent on-site, doing research, and writing the report. There is no breakdown of on-site hours only. The KOSH compliance officers allocate total hours spent in an investigation, and that total is not broken down by task. Accordingly, Mr. Sarvadi received all available information requested in item 4.
?
The Labor Cabinet interpreted this item [Request No. 5] as a request for all of the documents contained in the forty-seven fatality files. The agency denied this request due the burdensome nature, as outlined in the response to Request No. 3, above. Ms. Miles would be required to review all of the files, redact the confidential information, and photocopy the releasable portions of the documents. Significantly, however, although Ms. Miles failed to note it in her response, the computer printout actually listed the alleged violations, if any, and proposed penalties related to the investigations.
?
As Ms. Miles explained [response to Request No. 6], the Labor Cabinet does not maintain a database containing the information regarding the number of inspectors assigned to conduct the inspection of any work places. In order to determine this, each of the forty-seven files requested would have to be retrieved manually and reviewed to discover this information. This would place an unreasonable burden on the agency, as outlined in the answer to Request No. 3, above. . . .
?
As Ms. Miles noted [response to Request No. 7], no such documents exist; accordingly, there is no way to satisfy Mr. Sarvadi's request on this point.
We are asked to determine whether the actions of the Cabinet in partially denying Mr. Sarvadi's request violated the Open Records Act. For the reasons that follow, we conclude that the agency may properly rely upon KRS 61.878(1)(i) and (j) in denying access to preliminary matters, such as preliminary documents, worknotes and correspondence with private individuals and preliminary memoranda in which opinions are expressed or recommendations are made, that were not incorporated into or made a part of final agency action. However, we find that the Cabinet failed to adduce sufficient proof to meet the clear and convincing standard of proof the Act requires public agencies to meet when they invoke KRS 61.872(6).
We address first, the request for copies of "all OSH-1 and modification of OSH-1 forms." The Cabinet initially denied this request and requests for other records, discussed below, under authority of KRS 61.872(6), on the basis that these files were voluminous and the requested records would have to be retrieved manually and it would be too burdensome to do so since there were forty-seven fatality files. In its supplemental response, the Cabinet estimated that it would take Ms. Miles working full time for two weeks to retrieve and review the forty-seven files, redact any confidential information and make redacted copies. The Cabinet further argued that Ms. Miles responds to several open records requests each day and to comply with this request would place an unreasonable burden on it and disrupt the essential functions of the agency.
KRS 61.872(6) provides:
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 00-ORD-72, at p. 2-5, the Attorney General construed this provision at length, stating:
[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. 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 unreasonablyburdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
In the instant case, Mr. Sarvadi requested all OSH-1 forms and modification of OSH-1 forms and other records contained in forty-seven files. Although the Cabinet states that many of the files are very large because they involve litigation, it did not provide sufficient evidence to convince this office that to produce the requested records would constitute a clearly unreasonable burden on the agency. The Cabinet does not describe with any degree of specificity the volume of records implicated in the request or the difficulty in accessing the requested documents. The denial consists of little more than a recitation that the forty-seven files are large and it would take Ms. Miles working full time for two weeks to retrieve and review the forty-seven files. We find that this does not establish by clear and convincing evidence that the request would be unduly burdensome.
In OAG 89-81, where we found a city had failed to meet its burden of establishing that providing inspection of a broad range of public records covering a four-year period would constitute an unreasonable burden on the agency, we stated:
Inspection of the records [the requester] seeks in his most recent request may require days, or perhaps weeks. Nonetheless the process must be begun. Unreasonable restrictions upon inspection may not be imposed. See OAG 80-641. [The City Clerk] may, of course, in meeting the direction of this opinion, take into account the need to ensure that essential functions of the agency not be disrupted.
If delay beyond the estimated two week 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).
Accordingly, it is the decision of this office that the denial of the requests under KRS 61.872 (6) was inconsistent with the Open Records Act and the records should be made available for Mr. Sarvadi's inspection.
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.
This office has recognized that certain portions of an occupational safety and health investigative file are exempt from disclosure under KRS 61.878(1)(i) and (j), such as preliminary worknotes, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. 93-ORD-138.
Moreover, In OAG 82-192, we cited KRS 338.101(1)(a), which authorizes the Commissioner or his authorized representative:
To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee's representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.
(Emphasis added.) We further stated in OAG 82-192 that it is our opinion that the term "question privately" makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)[l]. That statutory section states that public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly, are excluded from the application of KRS 61.870 to KRS 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction. Thus, any information identifying employees contacted and/or interview statements may be withheld from disclosure pursuant to KRS 338.101(1)(a), in tandem with KRS 61.878(1)(l). OAG 82-192; 98-ORD-190.
Accordingly, under authority of KRS 61.878(1)(i),(j), and (l), the Cabinet may properly redact preliminary information in these records that are not incorporated into or made a part of any final agency action or information required by an act of the general assembly to be kept confidential, and provide Mr. Sarvadi with redacted copies of the records.
The second group of records at issue were those which reference the amount of time that inspectors spent at the inspection site. In its initial response, the Cabinet's printout provided the total hours per investigation, which included hours on-site, writing, and reviewing the report. The Cabinet indicated that a record reflecting on-site hours only was not available.
We find that the Cabinet otherwise discharged its duties under the Act by advising Mr. Sarvadi that the specific information identified in his request was not maintained by the agency. This office has long recognized that a public agency cannot furnish access to records that do not exist. 00-ORD-121. Moreover, to the extent Mr. Sarvadi's was a request for information, rather than specifically identified records, the agency could properly deny such a request for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "open records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
The purpose of the Open Records Act is not to provide information, but to provide access to public records that are not exempt by law. OAG 79-547. Thus, we conclude that the Cabinet response in regards to these records did not violate the Act.
The third group of records at issue involves documents that identify all alleged violations underlying the citations, or the amount of any fines that were issued. This request was initially denied under authority of KRS 61.872(6). In its supplemental response, the Cabinet stated that the computer printout which it provided to Mr. Sarvadi listed the alleged violations, if any, and the proposed penalties related to the investigations. It appears, at least to this extent, that the Cabinet has provided records that contained the information that he requested. If any records remain in question, we urge the parties to this appeal to proceed in a spirit of cooperation to resolve those issues.
The fourth group of records at issue consists of records containing information as to the number of inspectors assigned to conduct the inspection of a workplace subsequent to fatality. In its initial response, the Cabinet stated that it had no database containing this information. It indicated that the OSH reports may contain this information, but the number of files was too voluminous to manually retrieve this information and denied this request under KRS 61.872(6). For the same reasons set out above in our discussion relating to the OSH reports, the Cabinet may properly redact preliminary information in these records that are not incorporated into or made a part of any final agency action or information required by an act of the general assembly to be kept confidential, and provide Mr. Sarvadi with redacted copies of these records that contain the information requested.
The final group of records at issue is a request for all records that provide the basis for a decision made by the Cabinet to assign more than one inspector in the inspection of a workplace subsequent to a fatality. In its initial and supplemental responses, the Cabinet stated that no such records exist. As noted above, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, we find that the Cabinet's response as to this issue did not violate the Open Records Act.
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.