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 Richmond properly relied on KRS 61.872(6) in denying Jim Crazy Snake Blake's October 2, 2002, request for "ALL Richmond District Court Facilities Corporate Records." (Emphasis in original.) For the reasons that follow, we affirm the city's denial of Mr. Blake's request.
In a response dated October 7, 2002, Richmond City Attorney Garrett T. Fowles reaffirmed the city's position that it views Mr. Blake's "open records request as a continuation of [his] longstanding efforts to disrupt the essential functions of the city and to wrongfully harass city employees." Mr. Fowles concluded that the city's position "remains unchanged, particularly in view of the fact that [Mr. Blake has] now been convicted of the criminal offense of harassing communications, a conviction which came about as a result of [his] repeated harassment of present and past employees of the city." Shortly thereafter, Mr. Blake initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Blake's appeal, Mr. Fowles elaborated on the city's position. He referenced a March 12, 2001, letter to this office in which he documented in excess of fifty open records requests submitted by Mr. Blake, and individuals believed to be acting in concert with him, and some 6,000 pages of records already produced by the city in response thereto. In his March 12 letter, Mr. Fowles noted that on a number of occasions, the requester [s] had failed to appear to retrieve copies of the records they had requested. On February 28, 2002, Mr. Fowles continued, Mr. Blake was found guilty on eight counts of harassing communication stemming from activities targeted at present and past city employees and their families. 1 In closing, Mr. Fowles observed:
The city fully recognizes the duties placed on it pursuant to the Open Records Act, and it appreciates also the fact that it is a rare instance in which a request denial will satisfy the provisions of KRS 61.872(6). The extreme circumstances of this case, however, clearly trigger subsection (6), and Mr. Blake's continuing efforts at harassment should not be countenanced.
We agree.
The city is correct in pointing out that this office has rarely, if ever, found sufficient evidence in the record to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that repeated requests are intended to disrupt the agency's essential functions. 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 an early open records opinion, the Attorney General construed this provision:
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.
OAG 77-151, p. 3.
Nevertheless, in the year of the law's enactment, this office recognized:
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, p. 4. Twenty-two years later, we amplified on these statements observing:
In determining whether a series of open records requests is intended to disrupt a public 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 weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests . . . are intended to disrupt its essential functions.
98-ORD-130, pp. 5, 6. In the latter decision, we concluded that because the requester had received written confirmation from the agency that his request would be honored on a date certain, and the agency failed to meet its own deadline, "we [could] not say that [the requester's appeal to the Attorney General] was filed in bad faith, or that his subsequent records requests [were] intended to disrupt [the agency's] essential functions." Id. at 6; see also, 93-ORD-72 (holding that investigative reporter's repeated requests into public agency's financial operations was "a function of the restrictions which were placed on him in inspecting the records rather than a malicious intent to harass the [agency]").
Nevertheless, this office has declared, on more than one occasion, that:
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; 01-ORD-124. Acknowledging that the question is a close one, we find that the City of Richmond has successfully built such a case.
It is the opinion of this office that Mr. Blake's broadly worded request, coupled with his past pattern of conduct and his conviction for harassing communications related to activities aimed at "caus[ing] annoyance and harm [to past and present city employees] and serv[ing] no purpose of legitimate communication," 2 support the City of Richmond's position that his October 2 request was intended to disrupt the city's essential functions. We therefore affirm the city's denial of his request on the basis of KRS 61.872(6).
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.
Jim Crazy Snake Blake126 Hager DriveRichmond, KY 40475
Garrett T. FowlesLegal Counsel for City of RichmondOffice of the MayorRichmond, KY 40476-0250
Footnotes
Footnotes
1 That conviction, Mr. Blake is quick to note, is on appeal.
2 May 2001 Madison Circuit Court Grand Jury Indictment.