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 Nortonville violated the Open Records Act in the disposition of Delbert Powell's June 12, 2001, request to inspect "all of the senior clerk's time cards for the whole year of 2000," and the senior clerk's January, 2001 time cards. For the reasons that follow, we find that although the City cannot provide access to records that do not exist, its failure to afford Mr. Powell timely access to the remaining records identified in his request constituted a subversion of the intent of the Act, short of denial of inspection, within the meaning of KRS 61.880(4). 1
In a response dated June 14, 2001, William M. Cox, Jr., an attorney representing the City, notified Mr. Powell that because "the time machine was not functioning during the month of January, 2001," no time cards exist for this period. With reference to the remainder of his request, he explained:
As for your request to view all of the Clerk's time cards for the whole year of 2000, please be advised that these records are in storage and cannot be produced within the statutory three-day period. Additionally, this request requires the City of Nortonville to manually search storage boxes spanning two fiscal years in order to pull out the individual time cards requested. With all of this in mind, the earliest date we can have these time cards ready for your review will be Monday, July 16, 2001. After this date, you will be able to review the time cards at the City Building during normal business hours.
In closing, Mr. Cox admonished Mr. Powell that his requests might be denied if they place an unreasonable burden on the city. This appeal followed.
In a supplemental response directed to this office following commencement of Mr. Powell's appeal, Mr. Cox elaborated on the City's position. He reaffirmed that there are no time cards for January 2001 because "the time machine was not operating during that time period, and the senior clerk kept track of her own time." Mr. Powell has been afforded access to all pertinent payroll records for that period, Mr. Cox reiterated, and "the City of Nortonville has fully complied with Mr. Powell's request."
Turning to the question of access to the senior clerk's 2000 time cards, Mr. Cox explained that the one-month delay in affording Mr. Powell access was occasioned by the necessity of manually searching through boxes for fiscal years 1999/2000 and 2000/2001 that are in storage. He advised that the city clerk must conduct this search in addition to "carry[ing] out her regular daily functions." Accordingly, Mr. Cox maintained, "the date stated for review of the requested time cards is reasonable and appropriate." He again intimated that although the City has made every effort to accommodate Mr. Powell, his" requests should not be intended to place an unreasonable burden upon the city, nor should the requests disrupt the normal and regular operations of the city." While we concur with the City in its view that it can not produce for inspection records that do not exist, we believe that a one month delay in affording Mr. Powell access to the 2000 time cards is unreasonable and therefore inconsistent with the requirements of the Open Records Act.
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 or the discharge of "regular daily functions."
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. 2
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. . . . 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 at 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.
Although the record supports the City's position that it has made reasonable efforts to cooperate with Mr. Powell, it is the opinion of this office that a delay of one month's duration is inordinate, and represents a failure to afford him timely access to the records identified in his request. This is particularly true in light of the fact that the record before us is devoid of specific proof that Mr. Powell's requests implicate a large number of records that are difficult to locate and retrieve.
Nevertheless, we do not find that the City's inability to produce the January, 2001, time cards constitutes a violation of the Open Records Act. On this issue, the Attorney General has often opined that a public agency cannot afford a requester access to documents that do not exist or that it does not have in its custody or possession. See, e.g., 93-ORD-51. The Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries. Because the City of Nortonville's time machines was inoperable for the period in question, no responsive records exist. The question presented is factual, and not legal, in nature.
It appears from the record that the City of Nortonville objects to Mr. Powell's requests on the grounds that they are burdensome. KRS 61.872(6) provides relief to public agencies to whom voluminous and lengthy requests are directed by providing:
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.
If an agency invokes KRS 61.872(6) as a basis for the nondisclosure of 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.
In determining whether a series of open records requests is unduly burdensome, or is intended to disrupt an agency's essential functions, 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. In OAG 77-151, at p. 3, we opined:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
However, we have also recognized that:
State 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, at p. 4. In weighing these interests we must bear in mind, as noted above, that the statute assigns the burden of proof to the agency to demonstrate, by clear and convincing evidence, that the requests are burdensome or intended to disrupt the essential functions of the agency.
No proof has yet been presented that Mr. Powell's repeated requests have been unreasonably burdensome. This is not to say that the city could not at some point build a successful case. 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). To date the City of Nortonville 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.
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 If the public agency cannot permit inspection on or before the third business day because the requested records are "in active use, in storage or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay," and to state the "place, time, and earliest date on which the public record will be available for inspection. "