Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky Department of Veterans Affairs violated the Kentucky Open Records Act in denying the request of David Russell Marshall to "inspect and/or copy any and all records and documents relating to an investigation of the [Thomson-Hood] Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2003." As the requesting party, Mr. Marshall satisfied his burden of identifying the requested records with "reasonable particularity" to enable the KDVA's custodian of records to identify and retrieve the records since the records are of "an identified, limited class." Because the KDVA has not established by clear and convincing evidence that granting Mr. Marshall's request to inspect the records would be "unreasonably burdensome, " we conclude that the KDVA violated the Open Records Act in denying Mr. Marshall's request on the basis of KRS 61.872(6). Pursuant to KRS 61.872(1) and KRS 61.872(3)(a), therefore, the KDVA must make the requested records in its custody available for Mr. Marshall's inspection during its regular office hours and provide suitable facilities for exercise of this right. If any of the requested records are exempt from inspection under KRS 61.878(1), the KDVA should identify, in writing, any responsive record withheld, cite the specific exception authorizing the withholding of the record, and explain how the exception applies to the record withheld as required by KRS 61.880(1).
In a response dated December 31, 2003, KDVA Staff Attorney Mark D. Honeycutt denied Mr. Marshall's "broad request" because "it places an unreasonable burden on KDVA pursuant to KRS 61.872(6)." In his view, the request for "any and all records" does not identify with "reasonable particularity" records which are "identifiable or in a limited class" and identifying the requested records with "reasonable particularity" is a "precondition to inspection. " Further, Mr. Marshall's request for "any and all documents" was denied "because it is so broad it will involve privileged documents subject to attorney-client privilege, work product doctrine, health care records protected by the Health Insurance Portability and Accountability Act (HIPPA) and the confidentiality privilege between an insurer and insured. See KRS [61.]878(1)(l)." According to Mr. Honeycutt, the request "involves thousands of documents" and KDVA will be able to assist him if his request is "narrowed, made more specific and identifies with reasonable particularity" the documents to which he is requesting access. In closing, Mr. Honeycutt offered to assist Mr. Marshall in revising his request and identifying documents. "For and on behalf of Mr. James Vannoy," Mr. Marshall now appeals from this denial.
In supplemental correspondence received by this office after Mr. Marshall initiated his appeal, Mr. Honeycutt elaborates upon his position. To begin, Mr. Honeycutt reiterates that the KDVA denied the request because it did not identify with "reasonable particularity" any records or documents being sought and "was simply a 'blanket request' for any documents or records." Further, the request was "so overly broad" that it will include "documents and records protected by federal HIPAA regulations (KRS 61.878(1)(k)), attorney-client privilege and work product doctrine (KRS 61.878(1)(l)), personnel records of a personal nature (KRS 61.878(1)(a)), and the insurer/insured privilege as extended under the attorney-client privilege (KRS 61.878(1)(l) and
Asbury v. Beerbower, Ky., 589 S.W.2d 216 (1979))." As correctly observed by Mr. Honeycutt, we articulated the following standard for determining whether a requester has described the records sought with adequate precision in 94-ORD-12:
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 or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents. ([E]mphasis added).
Id., p. 2. Relying upon the foregoing, Mr. Honeycutt engaged in the following analysis:
To date, Mr. Marshall has yet to identify a single class of document[s] or record[s], nor has he identified any document with "reasonable particularity. " KDVA offered, in a spirit of cooperation, to assist Mr. Marshall in narrowing his request to identify any documents or records consistent with KRS 61.871; however, he instead filed this appeal. While it is his right to do so, his request still stands as an unreasonable burden on this agency. KDVA cannot be required to conduct a search for documents when Mr. Marshall will not describe the documents he wishes to inspect.
As it stands, responding to Mr. Marshall's "blanket" request would require KDVA to comb through all documents and records in our possession searching for any document regarding the Joseph Adam[]s investigation. The investigation into Mr. Adams' injury on June 11, 2002 includes all of his medical records back to his original date of admission in 1999. These medical records alone consist of thousands of documents over a four-year period. Given the lack of even reasonable particularity [in] his request, KDVA cannot estimate the amount of time our employees would expend in locating, retrieving, and producing these records.
Second, KDVA is simply insisting Mr. Marshall identify records with sufficient clarity to enable KDVA to locate the records and make them available. The "blanket request" includes records of any kind including medical records, personnel records, administrative records, insurance records, attorney-client privileged documents, etc. KDVA respectfully requests the Attorney General's office uphold all prior decisions regarding "blanket requests" and not require KDVA to conduct a broad inspection of all of its records to determine if any of them relate to Mr. Marshall's ambiguous request.
Based on the following authorities, we respectfully disagree with the KDVA's characterization of the subject request and, therefore, conclude that the KDVA violated the Open Records Act in denying Mr. Marshall access to the requested records on the basis of KRS 61.872(6). Pursuant to KRS 61.872(6):
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:
00-ORD-72, pp. 2, 3, citing OAG 77-151, p. 3. 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.
00-ORD-72, p. 3, citing 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 the agency in effectively executing its public function." Id., citing 96-ORD-155, pp. 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.
Id., p. 3.
Only if the agency has adduced evidence to support a finding that the burden is indeed unreasonable, will the Attorney General uphold its action. See 00-ORD-180; 00-ORD-72. As we emphasized at page 4 of 00-ORD-72, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " Said another way, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79.
In OAG 89-88, we held that the Department of Insurance had sustained this burden by indicating that the requested records consisted of around 800 documents and explaining the difficulty of separating the confidential material from the nonconfidential material. Similarly, in OAG 91-58 we found 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 OED" and various offices and agencies. Because the agency explained that the requested documents might be located in six different offices throughout the city and county, and described the difficulty in separating the exempt from the nonexempt material, we held that it had sustained its burden of proof under KRS 61.872(6). Perhaps the best illustration of this principle is 96-ORD-42, in which the Attorney General affirmed the Workforce Development Cabinet's denial of a request for P-1s 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 attempting to satisfy this intentionally high standard, the Cabinet explained:
The Workforce Development Cabinet does not have a list of DES employe[es] 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 [] at the time of the reorganization. The Division of Personnel Services [] 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-1s from their files; copy the P-1s, 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-1s 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 but is noticeably absent from the KDVA's denial of Mr. Marshall's request. See also, 97-ORD-88 (affirming denial by Cabinet of Health Services on this basis). 96-ORD-42 stands in contrast with 95-ORD-2, in which we held that the Kentucky Revenue Cabinet improperly relied upon KRS 61.872(6) in denying a request for copies of all circuit court agreed judgments entered into by the Cabinet from 1993 through September 1994 requiring payments in excess of $ 10,000.00. In support of its position, the Cabinet argued that its Legal Services Division maintained a caseload well in excess of 200 cases during the relevant time frame and had closed a "substantial number of files during that time." As further argued by the Cabinet, manually retrieving and examining these files would be time consuming, unduly burdensome, and disruptive of its essential functions. In addition, a portion of the Cabinet's litigation and settlements are handled by the Enforcement Legal Section of the Division of Collections and its files are not maintained in a fashion that would enable it to readily respond to the request. We held that the Cabinet failed to establish by clear and convincing evidence that granting the subject request would be unreasonably burdensome. See also 99-ORD-4 (holding that proof of four requests in a four and one-half week period did not constitute an unreasonable burden or establish an intent to disrupt essential agency functions).
With regard to assessing whether an open records request places an unreasonable burden upon an agency, we have said:
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 unreasonably burdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
In 00-ORD-180, the subject request was for a copy of "any/all complaints" brought against the Kentucky Department of Corrections or any of its divisions and the Kentucky Parole Board during the preceding two years that involved "the issue of drug testing by Kentucky probation and/or parole officers." In our view, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. Such is the case here. As we observed in 02-ORD-26, this office criticized "open ended any-and-all-records-that-relate-type of requests" in 96-ORD-101 and 99-ORD-14, as well as the "broad discovery request[s]" at issue in 00-ORD-79. Id., p. 6. By requesting to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002[,]" however, Mr. Marshall made his request "specific and narrow enough" to enable the KDVA to identify and locate the records in question. To summarize, Mr. Marshall is requesting to inspect investigatory records relating to an isolated incident involving a named individual that occurred at a designated location on a specific date. In our view, the KDVA construes the subject request more broadly than the language employed requires. 1 With respect to the degree of precision required in drafting a request, the Attorney General has said:
An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6; 01-ORD-51.
Although Mr. Marshall's request is broad and does not "precisely describe" 2 the requested records, the records are necessarily of an "identified, limited class" as further evidenced by the KDVA's assertion that "thousands of documents" are involved and its reference to the volume of medical records encompassed by his request. In other words, Mr. Marshall framed his request with "sufficient clarity" to enable the KDVA records custodian to identify and retrieve the requested records contrary to the KDVA's assertion. No more is required. Upon his satisfaction of this "precondition to inspection, " the burden of proof shifted to the KDVA.
In its initial response, the KDVA merely cites KRS 61.872(6) and makes an unsupported allegation that granting Mr. Marshall's request would place an unreasonable burden on the agency. In the alternative, the KDVA asserts that Mr. Marshall's request "will involve privileged documents" without specifying which documents or explaining how the privileges to which he refers apply. "A bare allegation that the request is unreasonably burdensome will not suffice." 99-ORD-119, p. 5. Rather, "it is incumbent on the agency to indicate, at least in general terms, the difficulty in identifying, locating, and retrieving the requested records." 99-ORD-72, p. 6. Implicitly acknowledging that responsive records exist and are in its custody, the KDVA relies upon the volume of records involved and the scope of the search required to locate the records in attempting to substantiate its denial of Mr. Marshall's request on appeal. However, the KDVA does not indicate the locations at which the requested records might be stored or otherwise elaborate as to the difficulty in accessing those records. Mr. Marshall's request may very well involve "thousands of documents" but such a "voluminous" request is not "necessarily unreasonably burdensome. " In the absence of any evidence to support the bare allegation that granting Mr. Marshall's request "places an unreasonable burden on KDVA," we must conclude that the requested records are readily available within the agency.
Although we do not speculate regarding the records management procedures adopted by the KDVA, it stands to reason that a mechanism exists by which the KDVA records custodian can locate and retrieve records of a limited class, namely, investigative records, relating to a specific incident involving a specific individual that occurred at a specific location on a specific date. Accordingly, the KDVA must utilize that mechanism in conducting a search 3 for the requested records based on the standard articulated in 95-ORD-96:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D.N.Y. 1983). It is, however, incumbent on the agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., pp. 7, 8.
Although some of the records requested by Mr. Marshall may be privileged or contain exempt information, the fact that the KDVA will have to "separate confidential documents from nonconfidential documents [cannot] serve as a basis for denying a request under KRS 61.872(6)." 00-ORD-180, p. 7. To the contrary, "the presence of some exempt information in the . . . reports does not relieve the [KDVA] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. Pursuant to KRS 61.878(4):
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.
If the reports which [the applicant] requests access to contain both exempt and nonexempt information, the department may delete the exempt information, after stating, in writing, the statutory basis for withholding that information. As we observed at page 3 of OAG 89-76:
Stated alternatively, "The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4.
97-ORD-6, p. 4-5.
Pursuant to KRS 61.872(1) and KRS 61.872(3)(a), 4 the KDVA is required to make available for public inspection all nonexempt public records in its custody during its regular office hours, and to provide suitable facilities for the exercise of this right. "'[I]nspection of the records [Mr. Marshall] seeks. . . may require days, or perhaps weeks[,] but the process must be begun. Unreasonable restrictions upon inspection may not be imposed.'" 97-ORD-6, p. 5, citing OAG 89-81, p. 4.
A party aggrieved by this decision may appeal it by initiating an 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 For instance, although Mr. Adams's medical records may be among those records in the investigative file relating to the 2002 incident, Mr. Marshall has requested only those records relating to the investigation as opposed to medical records dating back to 1999.
2 In 97-ORD-46, this office observed the following relative to the burden assumed by requesters seeking to receive copies of records by mail:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. In construing KRS 61.872(2), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside Dictionary 926 (1988); "strictly defined' accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
Id., pp. 2, 3. Although Mr. Marshall lives outside the county where the requested records are located as required under KRS 61.872(3)(b), and his request arguably satisfies the second requirement that his description be "precise," he has expressed a willingness to inspect the records during the regular office hours of the KDVA. Accordingly, our analysis focuses exclusively on whether he has satisfied the lesser burden of identifying the requested records with "reasonable particularity. " Given our resolution of this dispositive issue, further discussion regarding the alternative means of access is unnecessary.
3 In framing his request, it is incumbent on a requester to describe the records he seeks to inspect with reasonably particularity. "If he does not, the agency is not obligated to conduct a search for the records." 97-ORD-46, p. 3, citing 95-ORD-108, pp. 2, 3 (emphasis added). In light of our determination that Mr. Marshall has described the requested records with reasonable particularity, the KDVA must fulfill this obligation.
4 KRS 61.872(1) provides:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
KRS 61.872(3) provides:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.