Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the response of Kentucky Labor Cabinet denying William F. Becker's request for records maintained by the Cabinet violated the Open Records Act. For the reasons that follow, we conclude the agency's denial did not violate the Act.
In his November 14, 2003 request directed to the Cabinet, Mr. Becker made the following request to review and copy:
. . . certain "public records" maintained by the Commonwealth of Kentucky, Labor Cabinet, Division of Employment Standards Apprenticeship & Training (the "Labor Cabinet"). Specifically, but without limitation, we are requesting copies of any and all documents, for the last ten (10) years, pertaining to investigations or decisions of the Labor Cabinet relating to "waiting time," "on/off duty time," and "on-call time" (as those terms are used in 803 KAR 1:065, Section 3), including but not limited to tentative findings of fact and documents pertaining to settlement. We are also requesting copies of any compilations of such information prepared by the Labor Cabinet which provides this information, and any additional documents that are not protected from disclosure by the Kentucky Open Records Act.
By letter dated November 18, 2003, Margaret Goodlett Miles, Paralegal for the Cabinet, responded to Mr. Becker's request, advising in relevant part:
This letter is in response to your request for the above-referenced information. Your request is being denied because the division's records are not indexed in a matter in which this information can be retrieved. This request would require that 1,485 over-time case files be pulled and reviewed manually to determine whether they fall into the above-referenced parameters.
(Emphasis in original.)
On November 24, 2003, Mr. Becker initiated the instant appeal to the Attorney General.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Miles provided this office with a response to the issues raised in the appeal. Expanding on the Cabinet's initial response, Ms. Miles explained:
Responding to this request would require a vast number of files, some 1485 to be manually pulled as no index exist for the requested information. Once pulled the files would have to be sanitized by separating exempt from nonexempt materials which would disrupt the Division of Employment Standards for several weeks.
It is well settled that if a request creates an unreasonable burden on an agency it may be denied. See OAG -91; OAG 92-16. The Cabinet has acted consistently with the applicable law.
(Emphasis in original.)
We are asked to determine whether the Cabinet's disposition of Mr. Becker's request was proper under the requirements of the Open Records Act. For the reasons that follow, and on the authorities cited, we affirm the Cabinet's disposition of Mr. Becker's request.
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 97-ORD-88, this office analyzed in great depth the propriety of an agency's reliance on KRS 61.872(6) to justify its denial of an open records request. At pages 6 and 7 of that decision we observed:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.[871]. 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 request 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 in producing voluminous public records.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
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. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58, we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872[(6)]. That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt material.
In the instant appeal, the Cabinet has indicated that because the division's records were not indexed in a manner in which the requested information could be retrieved, the request would require that 1,485 over-time case files be pulled and reviewed manually to determine which files might contain the information that Mr. Becker was seeking or met the parameters of his request. The Cabinet further indicated that once the relevant files had been pulled, they would have to be "sanitized by separating exempt for nonexempt materials which would disrupt the Division of Employment Standards for several weeks." Under these facts, we conclude that the Cabinet has met its burden of establishing that compliance with the request would place an unreasonable burden on the agency. Accordingly, we find the Cabinet properly denied the request under authority of KRS 61.872(6).
In the alternative, Mr. Becker may request to inspect the 1485 over-time files and conduct his own search for the records he seeks. As indicated in the Cabinet's response, the files would have to be redacted prior to making them available for inspection. If such redaction would constitute an unreasonable burden, the Cabinet must sustain this fact with clear and convincing evidence that disclosure of a redacted copy of the files would impose an unreasonable burden within the contemplation of KRS 61.872(6). See, 03-ORD-004.
Finally, this office has long recognized that a public agency is not obligated to compile a list or create a record or conduct research or search its records for the information to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251; 02-ORD-165. Accordingly, we find the Cabinet's response advising Mr. Becker that no index existed that would enable it to readily access the records he was seeking was proper and in accord with prior decisions of this office.
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.
Distributed to:
William F. BeckerFrost Brown Todd LLC400 West Market Street, 32nd FloorLouisville, KY 40202-3363
Margaret Goodlett MilesLabor Cabinet1047 U.S. Hwy. 127 S.Suite 4Frankfort, KY 40601-4381
Kembra Sexton TaylorLabor Cabinet1047 U.S. Hwy. 127 S.Suite 4Frankfort, KY 40601-4381