Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Transportation Cabinet violated the Kentucky Open Records Act in denying the request of William Montgomery to inspect the Cabinet's "files and relevant handwritten notes, held in [its] Frankfort offices, for the following projects" on behalf of Kentucky Heartwood:
A) The Somerset Northern Bypass and Somerset-to-London stages of I-66;
B) The older files for I-80 construction; [and]
C) The older files related to the Eastern terminus proximity of the Cumberland Parkway construction.
As to those records which do not exist, the "older files for I-80 construction," the Cabinet belatedly discharged its statutory duty by affirmatively indicating as much to Mr. Montgomery. Although the Cabinet violated KRS 61.880(1) by initially failing to cite the applicable exceptions, it is the decision of this office that the Cabinet ultimately satisfied its statutory burden of proof relative to the "files and handwritten notes" concerning I-66 by invoking KRS 61.878(1)(i) and 61.878(1)(j), and adequately explaining how those exceptions apply to the records withheld. With respect to the "older files" still at issue, Mr. Montgomery failed to frame his request with "reasonable particularity" so as to enable the Cabinet's custodian of records to identify and locate any responsive records and, therefore, the Cabinet properly denied his request as to those records.
Citing KRS 61.872(3), Mr. Montgomery requested to inspect the requested records during "the regular office hours of the [Cabinet]." In a response dated July 8, 2004, Charles K. Hollan, Commissioner, Department of Administrative Support Services and Custodian of Records, responded to Mr. Montgomery's request on behalf of the Cabinet. Relying upon a string of decisions from this office, Mr. Hollan advised Mr. Montgomery that "it is incumbent on the requester to identify records sought with reasonable specificity in order for the Agency to locate those documents sought to be reviewed." More specifically, the Attorney General has held that "blanket requests for information on a particular subject without specifying certain documents need not be honored" as further observed by Mr. Hollan. On this basis, Mr. Hollan denied Mr. Montgomery's request in its entirety. 1
Dissatisfied with Mr. Hollan's response, Mr. Montgomery submitted a request for reconsideration by letter dated July 12, 2004. In a timely response, Mr. Hollan again denied his request. As explained by Mr. Hollan:
As stated in our original correspondence, it is necessary that you identify the documents you wish to review. Even though it is your desire to visit our office during regular business hours to inspect these documents, you must inform us of the specific documents that you would have us pull for your inspection. Your request is vague to the point that we are uncertain of even which office to begin to search. Simply stating that you wish to review files for "the Somerset Northern Bypass," the "older files for I-80 construction," or the "older files related to the Eastern terminus proximity of the Cumberland Parkway construction" is simply not enough information for us to go on. These documents span many divisions over many years. Some may be in archives, or have already been destroyed per their retention schedule.
By letter dated August 9, 200[4], Brent Bowker, an attorney at the Appalachian Citizens Law Center, Inc., initiated this appeal on behalf of Mr. Montgomery. In Mr. Bowker's view, Mr. Hollan "arbitrarily refused Mr. Montgomery's request" in that he "did not cite to any Open Records Act exemptions[,]" asserting instead that Mr. Montgomery must request "specific documents." According to Mr. Bowker, "[t]his ignores the fact that Mr. Montgomery wishes to personally review the entire requested files to see which specific documents may interest him." Under these circumstances, requiring applicants to formulate detailed requests "is an illegal attempt to shift the burden onto the public that is requesting information." 2 In support of his position, Mr. Bowker argues:
In denying Mr. Montgomery's Open Records request, Mr. Hollan incorrectly relies upon language from OAG 76-375. This Attorney General opinion states: "Blanket requests for information on a particular subject without specifying certain documents need not be honored. State employees [are not required] to make compilations of records, but the public has the right to inspect compilations which have been made in the course of business unless the subject matter is confidential by law." However, Mr. Montgomery did not request that Mr. Hollan prepare a list or compilation. Instead, he wants to personally inspect public files. Under the Open Records Act and OAG 76-375, Mr. Montgomery has this right: "A citizen may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " Mr. Hollan's disingenuous use of OAG 76-375 to deny Mr. Montgomery's Open Records request is a meritless attempt to illegally withhold access to the Transportation Cabinet's files.
Citing KRS 61.872(4), Mr. Bowker also contends that Mr. Hollan violated the Open Records Act in failing to "inform Mr. Montgomery of the location of files" that are not "in his control." According to Mr. Bowker, the mandatory language of this provision requires the Cabinet to notify Mr. Montgomery of which division maintains the requested files and indicating that the requested records "span many divisions over many years" is an "inadequate reason for a denial." Likewise, the Cabinet's refusal to grant Mr. Montgomery's request because some of the records "may be in archives" constitutes a violation of KRS 61.872(5). In closing, Mr. Bowker asks this office to find that the Cabinet's response violates both "the letter and the spirit of [the Open Records Act] ."
Upon receiving notification of Mr. Bowker's appeal from this office, J. Todd Shipp, Assistant General Counsel, Office of Legal Services, supplemented the Cabinet's response via facsimile. For the first time, the Cabinet affirmatively indicates that no "older files for I-80 construction" exist as "Kentucky has no I-80." Therefore, the Cabinet has no records fitting this description. With respect to the first category of records requested, "the blanket request to review files and handwritten notes" concerning the development of I-66, the Cabinet reiterates that any responsive records would "span several offices, divisions, and years." Elaborating upon the Cabinet's earlier position, Mr. Shipp explains:
As well, the I-66 project is in the planning and environmental analysis stages that have yet to be finalized as to any stage of environmental assessment. It is still in its preliminary development and as such is excepted from disclosure pursuant to both KRS 61.878(1)(i)[,](j)[,] and (k). The National Environmental Policy Act mandates that federal agencies evaluate and document the potential environmental consequences of their actions before making decisions on proposals that will involve federal funding, approvals or other significant federal involvement. See 42 U.S.C. § 4321 et. seq. NEPA is a procedural statute that does not require any particular outcome, but rather seeks to ensure "informed decision-making" by federal agencies. In this case, the need for a NEPA review is triggered by the potential for federal funding of the project sponsors, and pursuant to approved procedures, KYTC have been delegated responsibility by FHWA for preparing the environmental analyses and documentation required by NEPA for this project.
The general procedural requirements of NEPA have been given specific form through regulations promulgated by the federal Council on Environmental Quality ("CEQ"). See 40 C.F.R. parts 1500-1508. The CEQ regulations describe certain key milestones and specific documents that must be prepared to satisfy the NEPA process requirements.
At this point in the planning phases of I-66 no Environmental Assessment has [been] prepared and presented to the public. This is the first step and first major milestone in the NEPA process. It is at this point that public comments [will be allowed], which will ultimately be incorporated in a Finding of No Significant Impact (FONSI). Upon [completion, the FONSI] is submitted to FHWA for final approval.
The I-66 process is very preliminary in nature and has yet to have even reached a phase where any opinion or recommendation has been made. At this point, if released, only unverified, un-reviewed, potentially inaccurate or misleading information would be released into the public domain.
In Mr. Shipp's view, the Open Records Act "was not designed to allow the general public to come into a state agency and start conducting a "broad general search through any file the person wants in hope of finding what they want." It has long been held that "vague, overbroad, blanket requests for information rather than specifically described requests for records need not be honored. " As to the final category of records requested by Mr. Montgomery, the Cabinet "is not even sure what Mr. Montgomery seeks. [The Cabinet] is not sure of the location nor the topic." Although the Cabinet "cannot guess nor stop all activity" in order to search for responsive records, the Cabinet is "willing to work with Mr. Montgomery[.]" Our review begins with the Cabinet's claim that Mr. Montgomery's request is vague and overly broad.
In 94-ORD-12, this office articulated the following standard to be applied in determining whether a requester has described the records sought with adequate precision:
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. 3 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 documents. (Emphasis added).
Id., p. 2. Consistent with the foregoing, this office has previously criticized "open ended any-and-all-records-that-relate" to a particular subject types of requests in 96-ORD-101 and 99-ORD-14, as well as the "broad discovery request[s]" at issue in 00-ORD-79. See also 02-ORD-26. In 99-ORD-14, the Attorney General recognized:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
Id., p. 6. Such is the case here. By requesting to inspect the "older" files concerning the specified projects, Mr. Montgomery failed to describe the records sought with "sufficient clarity" so as to enable the Cabinet to identify and locate any responsive records. In contrast, a request 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," was "specific and narrow enough" to meet this standard. 04-ORD-028, p. 8. Our conclusion in 04-ORD-028 was premised on the fact that the requester sought to inspect " investigatory records relating to an isolated incident involving a named individual that occurred at a designated location on a specific date." Id.
Unlike the records at issue in 04-ORD-028, for example, the records to which Mr. Montgomery sought access were not identified with "reasonably particularity, " nor were the records of an "identified, limited class." While the Cabinet's response that records matching the description provided would "span several offices, divisions, and years" is equally vague and would otherwise be inadequate, the Cabinet's request that Mr. Montgomery frame his request with greater specificity was entirely justified. As framed, Mr. Montgomery's request does not enable the Cabinet to estimate the number of records encompassed or the amount of time Cabinet employees would expend in locating, retrieving, and producing the records. Because Mr. Montgomery failed to satisfy this "precondition to inspection, " the burden of proof did not shift to the Cabinet. 4 That being the case, it necessarily follows that the Cabinet did not violate the Open Records Act in denying Mr. Montgomery's request as to the "older files" concerning the specified projects on this basis. To its credit, the Cabinet has expressed a willingness to work with Mr. Montgomery. Accordingly, this office encourages Mr. Bowker, acting on behalf of Mr. Montgomery, and the Cabinet, to work toward an amicable resolution of this dispute--Mr. Montgomery by framing his request with greater specificity, and the Cabinet by continuing to exhibit a spirit of cooperation. 5 However, our analysis does not end there.
KRS 61.880(1) dictates the procedure which an agency must following in responding to a request submitted pursuant to the Open Records Act.
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.
However, the Attorney General has consistently recognized that a public agency cannot provide access to records which it does not have or which do not exist. 04-ORD-059, p. 4, citing 03-ORD-205, p. 3; 02-ORD-145; 01-ORD-36; 99-ORD-98; 97-ORD-17; 93-ORD-134. Rather, the right to inspect attaches only after the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18. With respect to the obligations of an agency denying access to public records on this basis, the Attorney General has often observed:
[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which is does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3. Said another way, an agency discharges its duty under the Open Records Act by affirmatively indicating that the requested records do not exist as the Cabinet ultimately did here in reference to the "older files for I-80."
On appeal, the Cabinet explains that "Kentucky has no I-80" in "direct response" to Mr. Montgomery's request to inspect the "older files for I-80 construction." According to Mr. Shipp, the Cabinet "does not possess records of construction for projects" that never happened. Noticeably absent from the Cabinet's initial response is any such explanation. To this extent, the Cabinet violated the Open Records Act. However, it is not "incumbent on this office conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; See 03-ORD-220. Although there are occasions when the Attorney General requests that an agency substantiate a denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. To the contrary, the Cabinet's explanation of why it does not possess any responsive records is entirely credible. Because the Cabinet "cannot furnish that which it does not have" and has now discharged its statutory duty by affirmatively indicating as much to Mr. Bowker, no further action is required. In light of this determination, the remaining question is whether the Cabinet properly relied upon KRS 61.878(1)(i), (j), and (k) in denying Mr. Montgomery access to the files and handwritten notes regarding I-66. Although the Cabinet's failure to cite these exceptions and briefly explain how each applies to the records withheld in its initial response constitutes a clear violation of KRS 61.880(1), the Cabinet has now met its burden of proof relative to KRS 61.878(1)(i) and (1)(j).
In 04-ORD-83, this office was asked to determine whether the Cabinet properly relied upon these provisions in denying a request to inspect "files, including field notes, concerning a November 10, 2000 report about the proposed bypass in Clinton County" prepared by Cultural Resource Analysis, Inc. On appeal, the Cabinet provided this office with a supplemental response which, in significant part, mirrors the Cabinet's supplemental response here. "Having reviewed the record on appeal," this office concluded that "the Cabinet's reliance on KRS 61.878(1)(i) and (j) was misplaced insofar as the requested records formed the basis of the November 10 report prepared by Cultural Resource Analysis, Inc.," which, in turn, prompted the FHWA and the Cabinet to "'remove [] from consideration early in the design process' the eastern bypass corridor alternative in the published Administrative Action Environmental Assessment. " Id., p. 3 (emphasis added). Critical to this determination was the fact that the Cabinet had "prepared and presented to the public the Environmental Assessment as required by NEPA." Id., p. 2.
In contrast, the record on appeal reflects that the required assessment has "yet to be prepared and presented to the public." Citing University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373, 378 (1992), this office held that the files and field notes underlying the historic survey/report "forfeited their preliminary characterization upon publication of the Environmental Assessment " to the extent those records were "'adopted by the agency as part of its action'" and, therefore, had to be disclosed. 04-ORD-083, p. 6 (emphasis added). Release of the environmental assessment to the public rendered the preliminary document exceptions inapplicable relative to the supporting documentation, including files and field notes, to this extent. Id., p. 7. Because the Cabinet has yet to take such action in this case, the opposite result necessarily follows. In other words, the Cabinet properly relied upon KRS 61.878(1)(i) and (1)(j) in denying Mr. Montgomery's request to inspect files and notes concerning the "Somerset Northern Bypass and Somerset-to-London stages of I-66" because those records are properly characterized as preliminary at this stage of the process. However, the Cabinet's reliance on KRS 61.878(1)(k) is misplaced. 04-ORD-083, a copy of which is attached hereto and incorporated by reference as to the relevant analysis, is determinative.
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.
Brent BowkerAppalachian Citizens Law Center, Inc.207 W. Court Street, Suite 202Prestonsburg, KY 41653-7725
Charles K. HollanCustodian of RecordsKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
J. Todd ShippOffice of Legal ServicesKentucky Transportation Cabinet200 Mero StreetFrankfort, KY 40622
Footnotes
Footnotes
1 Although Mr. Montgomery also repeated an earlier request for copies of two studies, namely, "Southern Kentucky Corridor (I-66) Planning Study, Somerset-to-London (July 2000)" and "Transamerica Transportation Corridor Feasibility Study (1994) by Wilbur Smith," Mr. Hollan enclosed a copy of "Transamerica Transportation Corridor, Transportation Options for the 21st Century, Feasibility Study, Executive Summary" with his response to the subject request and advised Mr. Montgomery that the Cabinet is "unaware of any document" fitting the former description thereby discharging his statutory duty relative to those records.
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2 Although Mr. Bowker correctly observes that denials based upon KRS 61.872(6) must be "sustained by clear and convincing evidence," and "Mr. Hollan's arbitrary denial does not reach this high standard," Mr. Hollan did not rely upon KRS 61.872(6) in denying Mr. Montgomery's request so further analysis of this standard is unnecessary.
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3 Where the records sought are of an "identified, limited class," the requester satisfies this condition. 04-ORD-028, p. 5 (citation omitted).
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4 In the event that the burden does shift to the Cabinet, its search for the requested records must be governed by 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 appearsto raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Id., pp. 7, 8.
5 As the Attorney General has consistently recognized, the degree ofspecificity required of a requester seeking to conduct an on-site inspection of public records as opposed to a requester seeking to receive copies of public records through the mail, is less exacting. 00-ORD-235; 97-ORD-46; 95-ORD-108. In 97-ORD-46, this office made the following observation relative to the burden assumed by the latter type of requester:
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. Because Mr. Montgomery has requested to inspect the records during the regular office hours of the Cabinet, his request does not have to satisfy this higher standard but, rather, must only describe the records requested with "reasonable particularity" in accordance with the cited authorities.
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