Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Fayette Urban County Government (LFUCG) properly relied on KRS 61.872(6) in denying John Fritz's March 11, 2005 request to inspect documents related to training materials, General Orders, CALEA standards, radio dispatcher procedures, teleport text messages policies and procedures and messages transmitted to and from officers, written communications, policies and procedures related to communications of the Division of Police generally and in connection with traffic accidents involving two separate traffic collisions between police officers and citizens. For the reasons that follow, we affirm the LFUCG's denial of Mr. Fritz's request.
By letter dated March 11, 2005, directed to the LFUCG "Corporate Counsel for Open Records Requests" and "Open Records Custodians, " Mr. Fritz requested "access to the originals (including listening to the original recordings) and one true copy each (if requested upon inspection) of the following documents and information of the LFUCG and its agents and assigns specifically the Division of Police:"
1. Documents (including but not limited to training material, General Orders, CALEA standards) and communications (including but not limited to memoranda, notices, letters, General Orders, CALEA standards) regarding the procedure for recording live dispatch radio channels in use each day including but not necessarily limited to the following specific items (in use on and effective for January 28, 2005):
2. Documents and communications (including but not limited to training manuals, training material, memoranda, notices, letters, General Orders, CALEA standards) that were in use and effective on January 28, 2005 regarding policy and procedures about the use of text-messages (including but not limited to digital text messages) via teleport including but not limited to the following specific material: when text messages via teleport are allowed to be used: the policy on said teleported text messages, procedures on said teleported text messages; operation manuals on said teleporting text messages: training material on said teleported text messages.
3. Text messages transmitted via teleport to and from Officer Cobb (who collided with a vehicle driven by citizen Tracey Carter on Friday January 28, 2005) for the time period range of 0100 hour to 0800 hour on January 28, 2005 and teleport-transmission text messages transmitted to and from each other officer responding to LFUCG Div of Police incident number 2005-00016917.
4. The separate audio recording of each of the separate radio dispatch channels 1, 2, 3, 4, 5, 6, and 7 broadcast from 0100 hour through 0800 hour on Friday January 28, 2005. NOTE: This is not a request for an audio dump of all seven channels onto one set of tapes. I also want to listen to the original recordings in their original format.
5. The video recording taken by the dash-board mounted video-camera located in Officer John Lamb's vehicle for the period of time of ten minutes before the fatal collision between Officer John Lamb and Rachel Burns to the period of time until the said video recording ends; and the video recording taken by the dash-board mounted video-camera located in the vehicle of each Officer and detective responding to the fatal collision between Officer John Lamb and Rachel Burns.
6. Documents (including but not limited to training material, General Orders, CALEA standards) and communications (including but not limited to memoranda, notices, letters, General Orders, CALEA standards) regarding police vehicle emergency travel [including but not limited to use of lights, siren, slowing at intersections, non signal 7 and non-signal 9 responses] written after the date of the fatal collision between Officer John Lamb and Rachel Burns.
7. Documents and communications (including but not limited to training manuals, training material, memoranda, notices, letters, General Orders, CALEA standards) that were in use and effective on January 28, 2005 regarding Signal 07 and Signal 09 responses by officers in the field including but not limited to the following specific material:
8. Documents (including but not limited to training material, General Orders, CALEA standards) and communications (including but not limited to memoranda, notices, letters, General Orders, CALEA standards) regarding the procedure to use to file criminal charges against sworn active-duty police officers.
9. The order form, invoice, and yellow copy of the original check used to pay for the equipment that is used to do the following tasks:
10. The documents and information listed in requests 1 through 9 hereinabove, in electronic format (including but not limited to cassette tape copy, video tape recording, DVD, digital video recording, audio recording, computer diskette copies in all software formats) as well as paper copies.
(Emphasis in original.)
By letter dated March 16, 2005, Michael R. Sanner, Corporate Counsel, LFUCG, responded to Mr. Fritz' request. Relying upon KRS 61.872(6) and OAG 91-42, he denied Mr. Fritz' request in its entirety, advising:
KRS 61.872(6) provides that if the application places an unreasonable burden on 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. Pursuant to the above referenced statute and OAG 91-42 your request is being denied as I am of the opinion that your request is motivated by a desire to place an unreasonable burden on the Government in producing voluminous public records. I am further of the opinion that your intent is to harass and disrupt the operation of the Government. The basis of my opinion is that many of these records have been previously provided to you, some of your requests are duplicative requests sought by your attorney, your requests are overly broad and blanket in character. In the past you have engaged in disruptive conduct while making accusations against employees and made threats of criminal action against the undersigned. 1
By letter dated April 5, 2005, Mr. Fritz initiated the instant appeal, arguing that the United States Constitution, the Kentucky Constitution, the Open Records Act, and in addition to public policy, supported his access to the requested records. He stated that his request for records was not to disrupt the operation of government but was "directed at obtaining the official public record regarding possible police misconduct in the investigation of two separate [traffic] collisions between police officers and citizens in which the police appear to be at fault . . . ."
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Sanner provided this office with a response to the issues raised in the appeal. In his response, he argued that Mr. Fritz had practiced a pattern of abuse of the open records law over a period years and the denial of his current March 11, 2005 request was warranted under authority of KRS 61.872(6). In support of LFUCG's position, Mr. Sanner argued in part:
The current open records request which is the issue of this appeal continues Mr. Fritz's pattern of placing an unreasonable burden on the government and disrupting essential functions of the government.
Mr. Fritz's request that is under appeal uses the same format and language as that of OAG 91-42 that the Attorney General's Office has already found to be overbroad and blanket in character. In fact, the request that is the subject of this appeal is even more extreme than the request that was found to be over broad and blanket.
In February of 2002, Mr. Fritz was provided access to all of the CALEA standards along with the pertinent General Orders and documents showing that the training requirements had been met regarding each standard. Mr. Fritz inspected only a fraction of the documents provided to him. In his current request, items 1, 2, 6, 7, and 8 all request inspection of CALEA standards, General Orders and training compliance that had been made available to Mr. Fritz and that were never inspected by him. Government Exhibit 11 shows the change in CALEA standards since Mr. Fritz's original CALEA request. The change in the standards since Mr. Fritz's original request do not modify his instant request.
In his response, addressing the 2002 records production mentioned above, Mr. Sanner indicated that Mr. Fritz was provided "approximately 440 CALEA standards together with the appropriate General Order for each standard together with training documents proving compliance with each standard. These standards had to be retrieved from several Bureaus that were using the standards. The total amount of documents provided to Mr. Fritz for his inspection, comprised of 4 to 5 file cabinet drawers. The conservative estimate of the number of documents provided to Mr. Fritz for his inspection was 5,000 to 6,000. Mr. Sanner further indicated that Mr. Fritz only inspected a fraction of the 5,000 to 6,000 records made available to him and made no further appointments to review the remainder of the records. Mr. Sanner argued that to require a public agency to produce 5,000 to 6,000 pages of documents and then only to inspect only a fraction of the documents uninspected can only be interpreted as an attempt to burden government by wasting government resources and taxpayer money to produce records which were not inspected.
In further support of LFUCG's position, Mr. Sanner cited the voluminous requests of Mr. Fritz of February 3, 4, and 5, 2003, stating:
On consecutive days in February, 2003 (February 3, 4, and 5), Mr. Fritz submitted nine (9) pages of open records requests that comprise Exhibit 6.
?
Even though these requests were voluminous in nature, the LFUCG gave Mr. Fritz the benefit of the doubt. I wrote sixteen (16) letters in response to Mr. Fritz's requests finally ending the matter of March 20, 2003. The documents Mr. Fritz requested, included documents in the Lexington Fayette Urban County Government Division of Accounting, Risk Management, Council Office, Public Information Office, Mayor's Office, Council Clerk's Office, and Computer Services. Documents Mr. Fritz requested were also researched and in possession of an independent photographer and three (3) private law firms.
?
Documents were made available for Mr. Fritz's inspection as they were located. The undersigned spent approximately from February 3, 2003 through March 20, 2003 working exclusively on these three (3) open records requests. Documents were provided to Mr. Fritz in the Department of Law Office and in the offices of a private law firm who had custody of many thousands of documents requested.
?
. . . On March 4, 2003, Mr. Fritz appeared for an appointment at the law firm and did not stay long. Mr. Fritz requested the paralegal to pull 3,000 to 5,000 pages of documents and that he would come back to inspect them. The paralegal complied with Mr. Fritz's request in obtaining the 3,000 to 5,000 pages of documents to make available for Mr. Fritz's inspection. Mr. Fritz did not make another appointment to review the specially requested documents. The paralegal held the documents for approximately six (6) months before returning them to their file. . . .
Even though Mr. Fritz's requests are blanket requests and are overly broad and voluminous in nature, the Urban County Government tried to comply with Mr. Fritz's request and produce thousands of documents. However, upon specially requesting approximately 3,000 to 5,000 pages of documents, Mr. Fritz did not show up to inspect said documents. The only explanation for making such a special voluminous request and not showing up to inspect the documents is to burden the government by wasting government resources and taxpayer money.
Mr. Fritz has now established a pattern of making voluminous open records requests and not showing up to inspect the documents requested.
In concluding his response to the issues raised in the appeal, Mr. Sanner argued:
Mr. Fritz's request that is the subject of this appeal taken as a whole uses language the Attorney General's Office has already found to be overly broad and blanket in character, requests documents that have already been made available for his inspection and duplicates requests of his attorney. Given Mr. Fritz's past pattern of voluminous requests, disruption of the government, Mr. Fritz's request was denied pursuant to KRS 61.872(6) as an undue burden.
We are asked to determine whether the LFUCG's denial of Mr. Fritz's request violated the Open Records Act. On the facts presented, we find the request could properly be denied under authority of KRS 61.872(6). 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.
In construing this provision, we explained in 05-ORD-067, at p. 5-6:
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:
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. Amplifying on these statements, we observed in 02-ORD-230, pp. 3, 4:
In determining whether a series of open records requests is intended to disrupt a public agency's essential functions, 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. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests . . . are intended to disrupt its essential functions.
?
Nevertheless, this office has declared, on more than one occasion, that:
96-ORD-193, p. 5; 01-ORD-124.
Under the facts presented, we find that the LFUCG has successfully built such a case. The record shows that in 2002, Mr. Fritz was provided access to all of the CALEA standards along with the pertinent General Orders and documents showing that the training requirements had been met regarding each standard. This included 4 to 5 file cabinet drawers of approximately 5,000 records. Mr. Fritz inspected only a fraction of the documents provided to him. In 2003, Mr. Fritz briefly appeared for an appointment at the law firm to review requested public records and asked the paralegal to pull 3,000 to 5,000 pages of documents for his review. After the 3,000 to 5,000 pages of documents were made available for Mr. Fritz's inspection, he never returned to review the specially requested documents In the instant appeal, Mr. Fritz seeks to inspect CALEA standards, General Orders, and training compliance documents that were made available for his inspection in 2002, but which he conducted only a limited inspection. n2 Thus, we find that the LFUCG has established a pattern of conduct of Mr. Fritz of requesting voluminous documents to inspect, and after production of the documents, he either does not inspect the records or only a small fraction of them.
In addition, we find that the LFUCG has established a pattern of Mr. Fritz making requests that are overly broad and blanket in nature, placing an unreasonable burden upon the agency to search and retrieve the requested records for inspection. This office so found in OAG 91-42. Requests submitted to LFUCG in February 3, 4, and 5 use similar format, language, and style found by this office to be overly broad and blanket in character in OAG 91-42, but more extreme and we find the same is used in Mr. Fritz's request which is the subject of the instant appeal. Such broad sweeping and blanket requests place an unreasonable burden on a public agency to identify and locate the records being requested and are disruptive of its essential functions. Such requests can properly be denied under KRS 61.872(6).
It is our opinion that Mr. Fritz's overly broad and blanket in character request for previously requested and provided records, coupled with his pattern of conduct in previous open records requests of requesting voluminous documents and, after the LFUCG had provided access to those records, he either did not inspect the records or inspected only a small portion of them, reflects an attempt to unduly burden the agency and disrupt its essential functions. We therefore affirm the LFUCG's denial of his request on the basis of KRS 61.872(6).
In support of its denial, the LFUCG also alleged a pattern of abusive conduct by Mr. Fritz that was disruptive of the essential function of the agency. Although we do not reach this issue in the disposition of this appeal, we do note that this office has held that a pattern of abusive conduct and communications and efforts to disrupt the essential functions of a public agency by an open records requester could form the basis of a denial of the request under authority of KRS 61.872(6). See 02-ORD-230.
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.
Distributed to:
John Fritz, M.S.P.O. Box 1551Lexington, KY 40588-1551
Michael R. SannerCorporate CounselDepartment of LawLexington Fayette Urban County Government200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 To properly file an appeal under theOpen Records Act, KRS 61.882(2)(a) requires that a complaining party must submit a copy of his written request, a copy of the agency's written denial, if available, and a brief letter of explanation addressed to the Attorney General. (Emphasis added.) This is the record upon which we rely in reviewing the public agency's action. The copy of LFUCG's letter of denial provided by Mr. Fritz redacted the last sentence of Mr. Sanner's March 16, 2005 response quoted here. Along with his letter of appeal, Mr. Fritz attached an exhibit marked Exhibit C which he described as follows:
Exhibit C - The un-redacted page 4 of LFUCG's response to my open records request containing false and malicious scandalous statements about the undersigned together with my appellate argument regarding same, are enclosed in the separate sealed envelope labeled "Exhibit C - sealed portion Confidential appellate argument not for public dissemination."
The Open Records Act does not provide for confidential sealed appellate arguments or authorize the redaction of portions of either the written open records request or the agency's written response. As noted above, these documents make up the record upon which we rely in reviewing the public agency's action. Mr. Fritz does not indicate in his letter of appeal that LFUCG was provided with a copy of his confidential appellate argument and, thus, give the public agency an opportunity to respond to it. To consider one side's confidential appellate argument without the other side being given an opportunity to see and respond to it, would unfairly allow ex parte argument by Mr. Fritz. Accordingly, we have not opened the sealed Exhibit C of Mr. Fritz' appeal letter and will not consider the sealed confidential appellate argument. The same would apply to the "attached sealed statement from Hon. Gayle E. Slaughter," attached to Mr. Fritz's May 3, 2005 Addendum to Reply and Motion to Strike, submitted to this office in a sealed envelope and marked: "Do not copy: Not for public distribution." In its supplemental response to Mr. Fritz's letter of appeal, LFUCG provided an un-redacted copy of Mr. Sanner's March 16, 2005 response.