Request By:
Kenneth G. James
P.O. Box 38
Hiseville, KY 42152-0038Sherry Smith, City Clerk
P.O. Box 77
Hiseville, KY 42152Ken Garrett, Esq.
Old Firehouse Building
111 West Wayne Street, Suite B
Glasgow, KY 42141Mayor Bill Phillips
P.O. Box 149
Hiseville, KY 42152-0149
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Hiseville properly denied Kenneth G. James' March 11, 2004 request for access to records relating to the Hiseville Municipal Cemetery -- Cemetery Caretaker Committee. For the reasons that follow, we find that the city did not meet it statutory burden of proof in denying the first subpart of Mr. James' request, and that unless it can articulate a statutory basis for denying access to these records, in terms of the requirement of the statute, the requested records must be made available for inspection. However, we affirm, in part, the city's denial of the second subpart of his request, acknowledging that the legal issue it raises is currently before the Kentucky Court of Appeals in a case involving public access to donor records of the University of Louisville Foundation. The University of Louisville Foundation, Inc. v. Cape Publications, Inc. d/b/a The Courier Journal , 2003-CA-2040 (filed September 23, 2003). 1
In his March 11 request, Mr. James asked to inspect:
1. Since January 1, 2002 all records and minutes pertaining to Hiseville Municipal Cemetery -- Cemetery Caretaker Committee, an agency of the City of Hiseville registered with the Attorney General, Commonwealth of Kentucky with registration number 9-R-462.
2. All records, lists and financial reports having to do with the formulation of a list of who asked whom for donations, an accounting of the contributors by checks [and] cash receipts received by city official[s] since January 1, 2003.
By letter dated March 16, 2004, Hiseville City Attorney Ken Garrett denied Mr. James' request. With reference to Mr. James' request for records and minutes of the Cemetery Caretaker Committee, Mr. Garrett advised:
Under KRS 61.870-61.884, the City of Hiseville is denying this request for several reasons. (A) The request constitutes a blanket request under the law. (B) The request places an unreasonable burden on the agency to produce the records for the entire time period. (C) The request is made to disrupt the essential functions of the agency.
(Emphasis in original.) Mr. Garrett also denied Mr. James' request for "records, lists and financial reports having to do with the formulation of a list of who asked whom for donations [and] an accounting of the contributors, " explaining:
Under KRS 61.870-61.884, the City of Hiseville is denying this request for [the] following reason. (A) The disclosure of the records containing personal information regarding the donations of the benevolent citizens of Hiseville and Barren County for the local cemetery constitutes an unwarranted invasion of privacy into the donors of the funds for the cemetery and it is the desire of the City that this information remain private. This information is also exempt under the Open Records Act as it contains personal information, and is inaccessible without a court order.
(Emphasis in original.) Shortly after he received the city's denial of his request, Mr. James initiated this appeal questioning why the Mayor unilaterally solicited donations from the citizens of Hiseville, why he refused to disclose the identities of donors, and whether any cash donations were received that were not expended for the stated purpose, namely, sealing the cemetery driveway. The city did not respond to these questions or otherwise supplement its response in any fashion following receipt of this office's notification of appeal.
It is the decision of this office that the City of Hiseville failed to satisfy its statutory burden of proof 2 in denying Mr. James' request for access to the minutes and records of the Cemetery Caretaker Committee on the basis of KRS 61.872(6). Although the city did not expressly identify KRS 61.872(6) in its denial of the request, Mr. Garrett recited the language of the provision which states in full:
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.
Critical to our determination is the fact that Mr. James has not requested that copies of these records be mailed to him, but has only asked that he be afforded an opportunity to inspect records of a single city committee for a period of slightly more than two years, and the fact that the city has adduced no proof of a single request of unreasonable scope or multiple requests collectively constituting an unreasonable demand.
In 97-ORD-6, this office was asked to determine if a request for specific information appearing on accident reports was unreasonably burdensome where the requester agreed to provide all manpower necessary to extract the information. We concluded that the request was not unreasonably burdensome, relying on OAG 89-76. In the latter opinion, the requester asked to inspect all automobile accident reports prepared by a local police department during a four week period. The department resisted disclosure, arguing that the request would impose an unreasonable burden, and an appeal followed. The Attorney General held that the department had not made a sufficient showing of undue burden since the requester could "be shown where the reports are filed and review the reports himself." Applying this reasoning to the facts presented in 97-ORD-6, the Attorney General observed:
OAG 89-76 echoes a line of Attorney General opinions dating back to 1976 when the Open Records Law was enacted. In OAG 76-375, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the requester asked that he be allowed ". . . to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the requester had "not made any demand on [the] agency which is beyond the scope of the Open Records Law. " Id. Finally, in OAG 84-278 the Attorney General held that a request for 10,000 records, although "certainly 'voluminous', . . . is not indicative of an 'unreasonable burden' on the office[]" where the requester stated that she was willing to inspect the records a few at a time. OAG 84-278, p. 2.
97-ORD-6, p. 4. Here, as in OAG 89-76 and 97-ORD-6, the requester has agreed to provide all manpower necessary to collect the information sought, eliminating much of the burden associated with production of the desired records. Here, as in the cited open records decisions, the requester "is asserting nothing more than his right, under KRS 61.872(3)(a), to inspect public records during regular office hours of the public agency. " 97-ORD-6, p. 4. And, here, as in our earlier decisions, we find that "such a demand is within the scope of the Open Records Law. " Id. 3
Moreover, the city's argument that production of the records for inspection is unreasonably burdensome, or that repeated requests are intended to disrupt other essential functions of the public agency, is not supported by clear and convincing evidence per the requirements found in the final sentence of KRS 61.872(6). Although, as noted, the city recited the language of the cited provision, it adduced no proof, clear and convincing or otherwise, of an unreasonable burden. As this office has frequently noted, "Mere invocation of the cited exception does not sustain the agency's burden [of proof]." 96-ORD-100, p. 6, citing OAG 89-79 and OAG 84-278. Because the city does not describe with any degree of specificity the volume of records implicated by Mr. James' request or the difficulties associated with producing those records for inspection, we find that the City of Hiseville must locate and produce for his inspection all records and minutes pertaining to the Hiseville Municipal Cemetery -- Cemetery Caretaker Committee from January 1, 2002 to the present.
Turning to the second subpart of Mr. James' request, we find that the city properly relied on KRS 61.878(1)(a), without specifically citing the exemption, in denying him access to "records, lists and financial reports having to do with . . . who asked whom for donations [and] an accounting of the contributors [sic] . . . since January 1, 2003," but only to the extent that those records identify the contributors/ donors by name or other personally identifiable information.
As recently as October 2002, the Attorney General reaffirmed the principle that a private donor's desire for anonymity often outweighs the public's interest in disclosure that was first articulated in OAG 86-76 and later in 94-ORD-1 and 94-ORD-67. See 02-ORD-177; see also, 02-ORD-221. Acknowledging that the issue of access to records reflecting donors' identities was then before the Kentucky Court of Appeals, 4 we concluded our recent decision, as well as each of the cited decisions, by holding that although the amount of pledges, contributions, or donations must be disclosed, the names, addresses, and other personal identifiers of the private donors could properly be withheld under authority of KRS 61.878(1)(a). That exception authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In 02-ORD-177, this office held that the agency discharged its duty under the Open Records Act by releasing a redacted copy of a "donor ledger" and issuing a written statement in which it cited KRS 61.878(1)(a) and briefly explained the application of this exception to the donors' identities.
The precise question of law presented in the instant appeal is currently pending in the Kentucky Court of Appeals in University of Louisville, Inc. v. Cape Productions Inc., d/b/a The Courier-Journal , 2003-CA-2040. 5 That appeal resulted from a lower court ruling that "individual donors who d[o] not request anonymity have no reasonable expectation of privacy and their identities must be disclosed." Cape Publications, Inc. d/b/a The Courier-Journal v. The University of Louisville Foundation, Inc ., No. 010-CI-03349, page 4 (Jefferson Circuit Court-Division Nine, September 18, 2003). The lower court struggled with the issue of whether the privacy interests of donors who had requested anonymity outweighed the public interest in disclosure, but concluded that these "donor's right to privacy should be respected." Id ., at p. 9. In so holding, the lower court held "that the subject matter involved (donations to [a public agency] ) is of a personal nature . . . ." Id ., at p. 5.
Although the lower court's opinion in Cape Publications, Inc. v. University of Louisville Foundation, Inc ., above, is narrower than the decision we reach today, that decision is only binding on the University of Louisville Foundation and The Courier-Journal , and we are not prepared to depart from a line of decisions dating back to 1986 unless the Court of Appeals or Kentucky Supreme Court determines that our longstanding position is erroneous. This line of decisions was premised on the notion that:
[S]ome persons enjoy whatever publicity they receive as a result of their donations. However, other persons or organizations prefer that their . . . donations be kept confidential. This may be particularly true in the case of those making . . . large donations. Since if this becomes known, generally, they may be contacted and pressured by . . . other organizations seeking donations.
OAG 86-76, p. 4. It is for this reason that we conclude that the City of Hiseville properly relied on the privacy exemption in denying Mr. James' request, but only to the extent that existing responsive records identify the donors to the Cemetery Caretaker Committee by name or other personally identifiable information. 6 To the extent that the existing responsive records identify the amounts donated, those records must be disclosed to enable the public to accurately monitor the amounts received in donations and correlate those amounts to the amounts expended on the purpose, namely sealing the cemetery driveway, for which they were solicited. Accordingly, the city must release any records identified in subpart 2 of Mr. James' request after redacting the names and personal identifiers of the donors. We believe that this resolution of the issue strikes a reasonable balance between the necessity of governmental accountability and the significant privacy interests implicated.
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 While it appears that the City of Hiseville intended to rely on KRS 61.872(6) and KRS 61.878(1)(a) in denying Mr. James' request, the city did not "include a statement of the specific exemption authorizing the withholding of the record[s]" per KRS 61.880(1), and its response was, to this extent, deficient.
2 KRS 61.880(2)(c) assigns the burden of proof in sustaining agency action to the agency.
3 KRS 61.872(1) provides that "[a]ll 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." Subsection (2) of that provision states that " [a]ny person shall have the right to inspect public records ." KRS 61.872(3)(a) and(b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof . . . ."
4 University of Louisville Foundation v. Cape Publications, Inc. d/b/a The Courier-Journal , 2002-CA-1590.
5 Obviously the facts from which that appeal arose do not mirror the facts in the instant appeal.
6 Such as home address, home telephone number, bank account number, or social security number.