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 Simpson County Jailer violated the Open Records Act in the disposition of Jeff Bell's December 29, 2004, requests for an incident report relating to an injury sustained by Mr. Bell on December 18, 2003, while he was confined in the Simpson County Jail, the Jail's grievance policy, and "any grievance . . . filed while Danny Booher has been jailer. " For the reasons that follow, we find that the Jailer failed to meet his statutory burden of proof in partially denying Mr. Bell's requests.
In correspondence directed to this office following commencement of Mr. Bell's appeal, Jailer Danny Booher advised that he received Mr. Bell's request on January 10, 2005, and responded by letter dated January 13, 2005. 1 Mr. Booher agreed to provide Mr. Bell with copies of the incident report and grievance policy, but denied his request for grievances filed since he assumed the office of jailer:
pursuant to KRS 61.878(1)(a) because such records would contain information concerning others of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Also, obtaining such records would place an unreasonable burden on the jail staff since it would require a review of each individual inmate file.
Mr. Booher's supplemental response mirrored his original response with the exception of a specific citation to KRS 61.872(6) at the conclusion of the supplemental response. While we commend the Simpson County Jailer for his prompt disclosure of the requested incident report and grievance policy, we are unable to affirm his denial of Mr. Bell's request for grievances filed during Mr. Booher's tenure as Jailer.
Resolution of the issue on appeal turns on the Jailer's failure to discharge his procedural and substantive obligations under the Open Records Act. With reference to his procedural obligations, this office has stated:
A public agency to which an open records request is made must comply with KRS 61.880(1) in responding to that request. That statute provides that the public agency must respond in writing and within three business days to the request. If the agency denies all or any portion of the request, it must cite the specific exception authorizing nondisclosure of the requested records, and briefly explain how the exception applies to the record withheld. In Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals construed KRS 61.880(1), observing:
97-ORD-152, p. 4. The Simpson County Jailer's response to Mr. Bell's request was procedurally deficient. Although he cited KRS 61.878(1)(a), he omitted any explanation of how that exception applies to the records withheld. We urge the Jailer to review KRS 61.880(1) to insure that future responses conform to the requirements of the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Jailer failed to meet his burden of proof relative to invocation of KRS 61.878(1)(a), and KRS 61.872(6). The General Assembly has declared that "free and open examination of public records is in the public interest and the exceptions provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. In construing this language, the Kentucky Supreme Court has determined that "the statute exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, 327 (1992). For this reason, "an agency resisting disclosure has the burden of proof to sustain its action." Id. at 326 citing KRS 61.882(3); see also, KRS 61.880(2)(c) (stating that "the burden of proof in sustaining the action shall rest with the agency"). We examine the provisions upon which Mr. Booher relied, and consider their application to the records withheld.
KRS 61.878(1)(a) excludes from the application of the Open Records Act, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In 1992 the Kentucky Supreme Court established a standard by which to judge the propriety of a public agency's invocation of this exception. The Court held that "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests." Kentucky Board of Examiners of Psychologists at 328. The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals elaborated on this "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327.
The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 828.
In 97-ORD-152, the Attorney General applied this analysis to the denial of a request for public employee grievances based on KRS 61.878(1)(a). At page 6 of that decision, we opined:
Under the Board of Examiners - Zink analysis, we begin with the question: Do these records contain information of a personal nature? No doubt, on some occasions they do. An employee may, for example, refer to emotional or physical problems resulting from stress or harassment in the work place. Such information is "generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink at 828. Conversely, many employees may hope that their grievances will become public so as to expose defects or deficiencies in the manner in which the agency executes its functions. [The agency] does little to substantiate the existence of a legitimate privacy interest . . . .
We next proceeded to a determination whether disclosure of those records constituted a clearly unwarranted invasion of personal privacy by weighing the public interest in disclosure against the privacy interests involved. Mindful that the only relevant public interest to be considered is the extent to which disclosure would further the citizens' right to be informed as to what their government is doing, we found that there is a significant public interest in monitoring the agency's response to, and handling of, employee grievances. As the Supreme Court observed at page 328 of Board of Examiners:
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
"The public upon request has a right to know what complaints have been made and the final action taken. . . ." City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658, 660 (1982).
Here, as in 97-ORD-152, the public agency fails to adequately substantiate the privacy interests implicated by disclosure of grievances. Mr. Booher states that the grievances "would contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " While it is possible that some of the grievances filed by individuals confined in the Simpson County Jail contain personal information relating, for example, to emotional/physical problems or conflicts with other individuals confined in the Jail, it is equally possible that some individual's filing grievances "hope that their grievances will become public so as to expose defects or deficiencies in the manner in which the agency executes its functions." 97-ORD-152, p. 6. Against this privacy interest, we weigh the "significant public interest in monitoring the agency's response to and handling of . . . grievances. " Id. at 7. Because the Simpson County Jailer fails to adequately substantiate the privacy interests of inmates filing grievances, and we cannot postulate such an interest in all cases, we find that the significant open records related public interest in disclosure of the grievances outweighs the privacy interests arguably implicated. Unless the Jailer can articulate a basis for denying access to particular grievances in terms of the requirements of KRS 61.878(1)(a), he must immediately disclose these records to Mr. Bell.
Turning to the question of the propriety of the Jailer's reliance on KRS 61.872(6), we find insufficient evidence in the record on appeal to support his denial. That statute 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.
This provision 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:
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 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. We have also recognized, however, 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.
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 an agency in effectively executing its public function. A bare allegation that the request is unreasonably burdensome does not satisfy the requirement of the statute. 96-ORD-201; 96-ORD-193; 96-ORD-100; 98-ORD-87; 00-ORD-72; compare, 97-ORD-88. 2
In the appeal before us, the Simpson County Jailer has not shown, by clear and convincing evidence, that Mr. Bell's request is unreasonably burdensome. As noted, mere invocation of the cited exception does not sustain the agency's burden. The Jailer had ample opportunity to build his case in his initial denial of Mr. Bell's request and in his supplemental response to this office's notification of receipt of Mr. Bell's open records appeal. Mr. Booher did not, for example, indicate how long he has held office, the number of grievances implicated by Mr. Bell's request, the difficulties in accessing those grievances, or the problems otherwise associated with production. Inasmuch as the burden of proof rests with the agency, and the Simpson County Jailer failed to meet this burden by specifically describing the unreasonably burdensome nature of Mr. Bell's request, we find that the Jailer's reliance on this provision was factually unsupported.
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:
Jeff Bell, #144-266Lee Adjustment CenterP.O. Box 900Beattyville, KY 41311
Danny Booher, Jailer Simpson County Jail 217 W. Kentucky StreetP.O. Box 220Franklin, KY 42135
G. Sidnor BrodersonSimpson County Attorney205 W. Kentucky StreetP.O. Box 474Franklin, KY 42135
Footnotes
Footnotes
1 Unexplained factual discrepancies in the record on appeal relating to transmission and receipt of open records requests and denials are incapable of resolution in this forum, and we therefore do not address these discrepancies.
2 In 95-ORD-61, at page 5, this office recognized that there is no clear standard of proof under the Open Records Act with the exception of that found in KRS 61.872(6). The inclusion of this high standard of proof suggests that the legislature was determined to avoid abuse of this particular provision.