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 Louisville Water Company properly relied on KRS 61.872(6) in denying Debra L. Vaughn's requests for financial and operational records maintained by the Company as well as records generated by the Office of Federal Contract Compliance in the course of its investigation of the Company. For the reasons that follow, we find that although the Company based its denial on a good faith claim that Ms. Vaughn's requests are unreasonably burdensome and disruptive of its essential functions, the Company provided insufficient proof to support this claim. Accordingly, we cannot affirm its denial of Ms. Vaughn's requests.
In a letter prepared by Company Vice President, General Counsel and Official Custodian of Records Barbara K. Dickens, dated February 17, 2005, the open records requests that form the basis of Ms. Vaughn's appeal, and the Company's responses thereto are summarized:
Requests 11 and 11A (Part 1) - copies of any and all disbursements and disbursement records from January 2001 through and including December 2004.
Response - the Company has "responded to this request three times . . . most recently on January 28, 2005, [when it advised Ms. Vaughn to] make an appointment with Amber Halloran to review the forty-eight (48) months of Lists of Claims . . . [requested].
Requests 11 and 11A (Part 2) - copies of all bank statements, all invoices, all ledgers interfacing to the general ledger, all manual journal entries, all electronic requisitions (including all screens that compose the requisition process) and any other instruments documenting [sic] not included in the . . . monthly record board book."
Response - this request is not limited by time and arguably includes "records from the time of the . . . Company's creation in the 1850's until the present. Even if read [to apply to] the time period stated [in subparts one and three, the request encompasses] essentially every single document in the accounting department for four years . . . [and] is voluminous, overly burdensome, and clearly being made to disrupt the essential functions of . . . Company."
Requests 11 and 11A (Part 3) - a list, by year from January 2001 through and including December 31, 2004, of all ledger accounts established in the accounts payable system for the Company, the amounts charged to each account, and the payee, including accounts 675.809.R1, 610.816.70 and 610.816.R1.
Response: as indicated in the Company's January 28, and February 14, 2005, response, to identical requests, "all such accounts over a three year period of time includes hundreds of accounts and countless disbursements" but instead of narrowing the focus of the request, Ms. Vaughn "simply ma[d]e the same request again." The Company again "offered the opportunity to review all 48 months of claims from this same time period."
Request 13 - copies of all documentation provided by the Company by the Office of Federal Contract Compliance as part of that office's ongoing investigation.
Response - because the investigation began in the summer of 2004, the documentation is voluminous and the Company cannot respond until Ms. Vaughn frames her request more specifically. 1
In closing, Ms. Dickens noted that Ms. Vaughn had submitted 14 open records requests consisting of 27 subparts, in a seven month period 2 requiring Company employees to expend 68 man hours. It was therefore the Company's position, "[b]ased on the frequency of the requests, the breadth of many of the requests, and the fact that [Ms. Vaughn] asked for documents which [the Company] already responded to, [that these] requests are being made to disrupt the essential functions of the Company" within the meaning of KRS 61.872(6).
On appeal, Ms. Vaughn rejects this claim, asserting that the financial records which she recently requested are "easily accessible as part of the 'Board Book' that is distributed to a list of employees and archived in the library on [Company] premises" and that her requests otherwise consist of "specific ledger accounts used to post payments." In her view, 13 requests in an eight month period are not excessive.
In supplemental correspondence directed to this office following commencement of this appeal, Ms. Dickens elaborates on the Company's position, urging the Attorney General "to uphold its denial of three open records requests made by Ms. Vaughn on the basis that clear and convincing evidence exists that [her] continued requests place an unreasonable burden on the Company and/or are being made to disrupt the essential functions of the Company pursuant to KRS 61.872(6)." In support, Ms. Dickens attaches the Company's January 28, 2005, response to a complaint submitted by Ms. Vaughn, alleging noncompliance with the Open Records Act, in which Ms. Dickens described each of Ms. Vaughn's previous twelve requests and the 68 manpower hours expended in fulfilling those requests. In the interest of brevity, we summarize the primary arguments contained in these letters:
1. Ms. Vaughn's most recent requests mirror earlier requests to which the Company "has provided more than one response." 3
2. Ms. Vaughn's requests are vague and overbroad, implicating voluminous public records, and she has refused to narrow the scope of these requests.
3. Ms. Vaughn demands access to the records identified in her request by receipt of copies through the mail, refusing to conduct onsite inspection of the records.
Relying on these arguments and OAG 91-42 and OAG 92-91, in which the Attorney General affirmed, respectively, agency denial of a request which was preceded by 13 requests in 15 months and agency denial of duplicative requests for the same records, especially in light of the agency's offer of onsite inspection, the Company reiterates that Ms. Vaughn has made 13 requests in 6 months and refused its offer to inspect the records identified in her duplicative requests. In closing, the Company concedes that Ms. Vaughn is not foreclosed from making open records requests by virtue of the fact that she is engaged in litigation with the Company, but asserts that "the fact that she continues to repeatedly ask for the same [and voluminous] information . . . via open records requests while she is also requesting information via the discovery process is . . . evidence that . . . [her] intent . . . [is] to burden the Company and/or disrupt other essential functions of the Company." Respectfully, and acknowledging that this is a very close issue, we disagree.
The provision upon which the Louisville Water Company relies, KRS 61.872(6), states:
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 recognized:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records [or is intended to disrupt its essential functions] 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 - request to inspect "10,000 cases [is] certainly 'voluminous, '" but not necessarily unreasonably burdensome [or disruptive of an agency's essential functions].
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
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 [or a series of requests] 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:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. 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 that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. 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.
96-ORD-155, p. 3, 4.
The statement of legislative intent codified at KRS 61.871 firmly establishes that the purpose and intent of the Open Records Act is to permit "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 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. A cursory review of open records decisions analyzing the applicability of KRS 61.872(6) to specific fact patterns reflects a marked disparity in the extent to which public agencies assay to meet this statutory burden. In 05-ORD-024, for example, the Simpson County Jailer argued that a request for grievances filed since he assumed the office of jailer was unreasonably burdensome. Because the record on appeal was devoid of specific proof relative to the length of his tenure in office, the number of grievances implicated by the request, the difficulties in accessing those grievances, and any other problems associated with production, we held that the jailer's reliance on KRS 61.872(6) was factually unsupported, concluding that "[a] bare allegation that the request is unreasonably burdensome [or intended to disrupt essential functions] does not satisfy the requirements of the statute." 05-ORD-024, p. 5, citing 96-ORD-201; 96-ORD-193; 96-ORD-100; 98-ORD-87; 00-ORD-72.
Conversely, in 00-ORD-72 the Kentucky Board of Barbering submitted a loose leaf binder measuring approximately four and one-half inches in width, and documenting every written and telephone communication with the open records requester in a one and one-half year period, to support its position that a request for licensing records relating to a named licensee "place[d] an unreasonable burden on the agency to produce records, and [was] intended to disrupt its essential functions." Notwithstanding the lengths to which the Board went to meet its burden of proof, we again found insufficient proof under KRS 61.872(6), observing:
The Board's original denial of the January 24 request contained little more than an unsupported allegation of an unreasonable burden. The Board supplemented that denial upon receipt of this office's notification of appeal by furnishing us with a copious record documenting all exchanges, written and verbal, with the requester from July, 1998, to the present. Our review of that supplemental denial discloses that in a period of approximately twenty months, the Board received roughly thirty requests for records, some of which cannot technically be characterized as open records requests (for example, requests for copies of his license for which the Board charged him ten dollars, and requests for copies of "law books"). Thus, on average the Board received 1.5 open records requests per month.
While this represents the proverbial tip of the iceberg relative to the total number of exchanges, written and verbal, that occurred in the same period, we must restrict our analysis to the January 24 records application, and the roughly 29 requests that preceded it as a basis for establishing an unreasonable burden or an attempt to disrupt essential functions. While we agree that the tenor of these written and verbal exchanges is evidence of the animosity the requester bears toward the Board, we believe the most compelling evidence of an intent to disrupt is the proof presented of six duplicative requests. Ultimately, however, we do not believe that this constitutes sufficient empirical evidence to support a claim under KRS 61.872(6), where the record demonstrates a total of only thirty requests in twenty months.
00-ORD-72, p. 6. In a footnote, the Attorney General commented that on several occasions this office had concluded that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 00-ORD-72, p. 6, citing 99-ORD-107, p. 2 and 95-ORD-47, p. 6. We noted that we did not mean to suggest that Board "could not at some point build a successful case that . . . [the] requests have become unreasonably burdensome, only that it has not done so in the appeal before us." 02-ORD-72, p. 6; see also 04-ORD-028; 04-ORD-013. Citing 96-ORD-193, we concluded:
Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case.
96-ORD-193, p. 5 (emphasis added).
Here, as in 02-ORD-72, 04-ORD-028, and 04-ORD-113, we find that although the Louisville Water Company "advances its KRS 61.872(6) argument in good faith, to date the [Company] has failed to build such a case." Id. The record on appeal documents numerous written exchanges between Ms. Vaughn and the Company, some of them of an apparently hostile nature. The same record confirms no more than two open records requests per month in the period under consideration and an allocation of staff resources of less than ten hours per month. Much of the correspondence documents the Company's efforts to locate and retrieve the records identified in Ms. Vaughn's earlier requests. The extraordinary efforts undertaken appear to be as attributable to problematic recordkeeping practice as they are to the nature of Ms. Vaughn's requests. For example, in attempting to fulfill its obligations under 04-ORD-169, 4 Ms. Dickens states that she "spent more than 12 hours going through archived files of former outside counsel," 5 in an unproductive search for a settlement agreement deemed nonexempt in the cited open records decision, in addition to three hours locating the other five agreements which the Company produced as a consequence of that decision. No less than seven letters were exchanged by the parties relative to this single request. Moreover, the Company asserts that more than one of Ms. Vaughn's requests was duplicative and that it "provided more than one response," 6 but does not indicate that on any of these occasions, the requests were honored and the records produced. Instead, it appears that the Company's responses consisted of demands for greater specificity. Inasmuch as the subject to those requests, namely, financial and operational records, "are those of generally recognized public recordation subject to public scrutiny in [the agency's] office," we do not believe it was incumbent on Ms. Vaughn to submit a narrower request, but that it was incumbent on the Company "to make available to [Ms. Vaughn] for [her] inspection, records that conform to [her] request . . . [notwithstanding the fact that] inspection of the records . . . may require days, or perhaps weeks." OAG 89-81, p. 3. 7 The Company notes that discovery was proceeding in the pending litigation between Ms. Vaughn and the Company at the same time that her open records requests were being submitted, but does not indicate that she attempted to obtain the same records through discovery that she attempted to obtain through the Open Records Act. The parties to this appeal are no doubt aware of the perils associated with any attempt to introduce records obtained through the Open Records Act in the courts. See, e.g., 03-ORD-207. Because the record on appeal does not fully support the Company's assertion that Ms. Vaughn has steadfastly refused to avail herself of the opportunity to conduct onsite inspection of Company records, 8 we must reject its argument that her repetitive requests are unduly burdensome because duplicative and nonspecific. 9
In sum, it is the decision of this office that although the Louisville Water Company expresses the good faith belief that Ms. Vaughn's requests are unreasonably burdensome and intended to disrupt its essential function, the record on appeal does not contain clear and convincing evidence supporting that belief. Simply stated, we cannot agree that the submission of two requests per month or the allocation of staff resources of less than 10 hours per month is indicative of an unreasonable burden or an intent to disrupt. Here, as in 02-ORD-72, we are not inclined to declare that Ms. Vaughn's repeated use of the law has become an abuse of the law. Nevertheless, and as noted above, we believe that this is a very close case and urge Ms. Vaughn to proceed with the knowledge that the Company came very close to making its case under KRS 61.872(6) in the instant appeal, and may well make its case under KRS 61.872(6) in the next appeal, should there be one.
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.
Debra Vaughn743 E. Broadway, # 301Louisville, KY 40202
Barbara DickensVice President, General Counseland Official Custodian of RecordsLouisville Water Company550 South Third StreetLouisville, KY 40202
Footnotes
Footnotes
1 Although we cannot affirm the Company's denial of Ms. Vaughn's requests on the basis of KRS 61.872(6), other exemptions to the Open Records Act may justify disclosure of portions of the records identified in those requests.
2 Ms. Vaughn acknowledges 13 requests in an 8 month period. In subsequent correspondence, Ms. Dickens alleges that Ms. Vaughn made 13 requests in a six month period. (March 22, 2005 supplemental response from Barbara Dickens to Office of the Attorney General.)
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3 The Company does not indicate that the earlier requests were honored by production of the requested records.
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4 In re: Debra L. Vaughn/Louisville Water Company.
5 Dickens' letter to Vaughn, January 28, 2005.
6 Dickens' letter to Office of the Attorney General, March 22, 2005.
7 The records sought in the cited opinion, OAG 89-81, consisted, inter alia, of documents itemizing all city revenues, and all bank statements, cancelled checks, checkbooks, and deposit tickets for all city bank accounts for a four year period, and therefore mirrored the records on appeal here.
8 In her January 28 letter to Ms. Vaughn, Ms. Dickens acknowledges that Ms. Vaughn reviewed microfiche on agency premises relative to her second request. In her response thereto, Ms. Vaughn agrees, albeit reluctantly, "to first review all the documents [she] has requested [in the requests that form the basis of this appeal] and then . . . request that they all be copied."
9 In the interest of absolute clarity, we note that Ms. Vaughn may be required to conduct an onsite inspection of the requested records prior to obtaining copies based on the language of KRS 61.872(3)(b) because she resides and has her principal place of business in Jefferson County and because the records identified in her requests are not "precisely described." See, e.g., 00-ORD-75.
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