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 Office of Charitable Gaming properly relied on KRS 61.872(6) in denying Peter O. Samples' April 18, 2005, request for records relating to OCG's denial of renewal applications submitted by charitable organizations and resulting appeals and temporary license issuance. For the reasons that follow, and upon the authorities cited, we find that although Mr. Samples may be required to conduct an onsite inspection in order to locate the records identified in his request, OCG presents insufficient proof to establish that Mr. Samples' request was submitted for the purpose of disrupting its essential functions or is otherwise unreasonably burdensome and its reliance on KRS 61.872(6) to deny his request was therefore misplaced.
In his April 18 records application, Mr. Samples requested records for the preceding 36 months consisting of:
. all temporary licenses issued by OCG to all charitable organizations that have had their renewal applications (Form CG-1) denied and to which temporary licenses were issued after the organizations appealed the denials;
. all denial letters issued by OCG to all charitable organizations that have appealed the denials of their renewal applications and for which temporary licenses were issued;
. all appeal notices submitted by all charitable organizations to OCG appealing denials of their renewal applications and to which temporary licenses were issued.
On April 26, OCG denied Mr. Samples' request through its General Counsel Stephen B. Humphress. Relying on KRS 61.872(6), OCG asserted that Mr. Samples' request was "intended to disrupt essential functions of the public agency. " In support, Mr. Humphress noted:
Pursuant to a Master Settlement Agreement which [Mr. Samples] signed on February 22, 2005, [Mr. Samples] agreed "to never engage in or be involved with, directly or indirectly, any charitable gaming activities so long as this agreement remains in effect." See paragraph 7. Since [Mr. Samples is] prohibited from being involved in charitable gaming activities, [his] request serves no legitimate purpose, and therefore must be deemed to be intended solely to harass this office.
As additional proof of Mr. Samples' "malicious intent," OCG cited his April 26, 2005, letter to the Falmouth Outlook criticizing the agency.
Mr. Humphress also noted that OCG "does not maintain records or lists which contain the requested information" and "is not required to perform research, compile information, or create records and lists (from other records) that do not already exist." Shortly thereafter, Mr. Samples initiated this appeal, asserting that his request was not motivated by an intent to disrupt the agency's essential functions, but by his interest in conducting research into OCG's activities over the past ten years. He disputed OCG's statement that no records responsive to his request exist, noting that in conversations arising from an earlier, and nearly identical, open records request which was subsequently withdrawn, OCG acknowledged the existence of responsive records relating to "a handful" of charities which it was willing to produce.
In supplemental correspondence directed to this office following commencement of Mr. Samples' appeal, OCG elaborated on its position. Mr. Humphress explained that "much has changed between November, 2004, [the date of Mr. Samples' original request] and the time of the current request," most importantly, the parties' execution of a Master Settlement Agreement resolving a number of cases involving Mr. Samples "and his related charities . . . ." (Emphasis in original.) Again citing paragraph 7 of that agreement, which prohibits Mr. Samples from direct or indirect involvement in charitable gaming activities, OCG maintained that Mr. Samples' "pointless" open records request violated the terms of the agreement and represented nothing more than an attempt "to harass and get back at [OCG]."
OCG acknowledged that in previous discussions concerning Mr. Samples' November request, "Humphress did agree to provide him with information as to what charities had denial appeals pending and whether [OCG] had issued any temporary licenses while the appeals were pending" to "avert threatened court litigation." (Emphasis in original.) Nevertheless, OCG asserted:
There are no records that meet Samples current and past open record requests. The information can only be gathered by the time-consuming process of manually going through hundreds of Office legal files to discover which ones involved cases where license denials were appealed, and then gather information of the dates that the appeal started and ended. Once gathering that information, the Office would then have to go through hundreds of licensing files to see if a temporary license was issued while an appeal was pending. Then a list would have to be created with the information gathered from this research.
(Emphasis in original.) OCG refused "to be [Mr.] Samples' 'cabana boy' . . . [by] perform[ing] research and creat[ing] lists for [him]" in the absence of any statutory duty to do so, concluding that its denial of his open records request was proper. Respectfully, we disagree.
Characterization of Mr. Samples' request as illegitimate
In an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3; see also OAG 89-76. Twelve years later, Kentucky's Court of Appeals confirmed this position in
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), observing:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to access to information as the next.
In sum, neither KRS 61.872(2) nor any other provision of the Open Records Act "authorizes public agencies to inquire into a requester's motive in seeking access to public records, or to consider those motives in determining whether the records should be released." 1 01-ORD-8, p. 5.
For this reason, we find that OCG's characterization of Mr. Samples' purpose in submitting an open records request as "pointless" and otherwise illegitimate, was improper. We are not persuaded that Mr. Samples forfeited his right under the Open Records Act to inquire into the activities of OCG relative to other charitable organizations by signing an agreement not to engage in charitable gaming activities. Nor are we persuaded that any such inquiry is, by virtue of the agreement, "pointless" and therefore "not legitimate." Whatever his intended use 2 of the information gleaned from his request to inspect public records, we believe that as a member of the public Mr. Samples is entitled to the same right of access to those records as any other member of the public.
Harassing nature of request
On this basis, we reject OCG's argument that Mr. Samples' request was submitted in order to "harass" or "get back at" the agency within the meaning of KRS 61.872(6). This office has rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions. KRS 61.872(6) 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 an early open records opinion, the Attorney General construed this provision:
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.
In the year of the law's enactment, this office also recognized:
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. Twenty-two years later, we amplified on these statements observing:
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.
98-ORD-130, pp. 5, 6. In the latter decision, we concluded that because the requester had received written confirmation from the agency that his request would be honored on a date certain, and the agency failed to meet its own deadline, "we [could] not say that [the requester's appeal to the Attorney General] was filed in bad faith, or that his subsequent records requests [were] intended to disrupt [the agency's] essential functions." Id. at 6; see also, 93-ORD-72 (holding that investigative reporter's repeated requests into public agency's financial operations was "a function of the restrictions which were placed on him in inspecting the records rather than a malicious intent to harass the [agency]").
Nevertheless, this office has declared, on more than one occasion, that:
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; 99-ORD-130; 01-ORD-124; compare 02-ORD-230 (affirming City of Richmond's denial of broadly worded request which, when coupled with requester's "past pattern of conduct and conviction for harassing communications" aimed at city employees, substantiated City's position).
Mr. Samples submitted a single request 3 for records relating to "a handful" of charitable organizations. Although he has been a critic of OCG, the agency presents no evidence of abusive conduct, clear and convincing or otherwise, beyond a bare allegation. As we have so often noted, this is not sufficient to meet the agency's burden of proof, and we therefore find that OCG's reliance on KRS 61.872(6) was misplaced. In the absence of clear and convincing evidence to the contrary, we find that Mr. Samples' request was submitted in good faith, reflecting his commitment to monitoring OCG's activities and not to disrupting its essential function. 94-ORD-86, p. 9.
Obligatory search vs. non-obligatory research
Finally, we reject on these facts, OCG's argument that it is not required to conduct research, compile information, or create records in order to satisfy Mr. Samples' request. As a starting point, we note that that request was properly framed as a request for records and not improperly framed as a request for information. OCG acknowledges that records responsive to his request are located in "hundreds of office legal files" but refuses to act as his "cabana boy" by performing a search to extract the responsive records.
In OAG 89-45, this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. There the requester sought the addresses of individuals whose names he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records, " noting that the public agency from which the records were sought "had no compiled record corresponding to the request." See also 95-ORD-27; 96-ORD-53; 02-ORD-213.
For purposes of contrast, we examine 94-ORD-121. In that decision the requester sought copies of "'rules' promulgated by the Department for Libraries and Archives concerning the parameters within which the University of Kentucky Records Management Program must operate in its creation, maintenance, storage and servicing of records . . . ." According to the University's own Records Retention and Disposal Schedule, records containing these "rules" were required to be compiled and separately maintained in a designated area of the agency. Thus, the records had already been compiled for purposes of satisfying the agency's records retention obligation. No additional research needed to be performed. The records had only to be retrieved from the designated area, and produced for inspection. We concurred with the requester in his view that the agency had improperly equated an obligatory search with nonobligatory research. 94-ORD-121, p. 7.
We believe that the facts of this appeal are more closely akin to the facts before us in 94-ORD-121 and that OCG has "improperly equated an obligatory search with nonobligatory research." By OCG's own admission, the requested records exist within the agency. It is therefore incumbent on the agency to conduct a search for those records in order to honor Mr. Samples' request, or, alternatively, to open its "legal files" for his inspection so that he might locate the records.
On-site inspection
We believe that OCG may satisfy its obligation under the Open Records Act by permitting Mr. Samples to conduct an on-site inspection of its "legal files" to extract the records sought, in lieu of conducting its own search and mailing him copies, by virtue of KRS 61.872(3). That provision establishes guidelines for records access under the Open Records Act by providing:
A person may inspect the public records:
In construing these provisions, the Attorney General has observed:
The Open Records Act . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52; 96-ORD-186. . . .
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.
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.
97-ORD-46, p. 2, 3 (emphasis added).
Mr. Samples apparently resides in Grant County and apparently has his principal place of business in Pendleton County, Kentucky. The requested records are located in OCG's offices in Franklin County, Kentucky. He therefore satisfies the first requirement of KRS 61.872(3)(b) . The narrow issue, therefore, is whether Mr. Samples "precisely described" the records, and whether the records are "readily available within the public agency. " Mr. Samples' request, though broad in scope, is precise insofar as it describes three categories of records (temporary licenses, denial letters, appeal notices), for a finite period (the past thirty-six months), and related to particular subject (renewal applications submitted by charitable organizations that OCG denied).
Nevertheless, we find that the requested documents are not "readily available within the public agency. " With reference to the third requirement found in KRS 61.872(3)(b), this office has observed:
The third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., 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, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours. KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5 (emphasis added). We did, however, note in 97-ORD-46 that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." 97-ORD-46, p. 5.
In supplemental correspondence directed to this office, OCG demonstrated, albeit minimally, the difficulties associated with identifying, locating, and retrieving the records to which Mr. Samples requested access. Compare, 97-ORD-46 (Kentucky Labor Cabinet failed to make a sufficient showing that the records to which access was sought by receipt of copies through the mail were not readily available within the agency); 99-ORD-67 (Trimble County Fiscal Court did not assert that the records to which access was sought by mail were not precisely described or readily available within the agency). Where, as here, the public agency makes the case that the requested records cannot be readily identified, located, or retrieved, the agency fully discharges its duty under the Open Records Act by making records available for inspection. Should it elect to extend an offer to Mr. Samples to conduct an on-site inspection of its records, OCG's open records duties will be discharged. Alternatively, OCG must conduct its own search for responsive records and transmit them to Mr. Samples by mail upon prepayment of a reasonable copying charge, not to exceed ten cents per page, as well as postage charges. Mr. Samples must be afforded access to the records by means of on-site inspection or receipt of copies through the mail. His request cannot be otherwise avoided.
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 The only exception to this rule is found at KRS 61.874(4)(b), permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). Nevertheless, agencies may not deny access to records because they are requested for this purpose.
2 Although not statutorily required to do so, Mr. Samples advised this office that he was conducting research into OCG's activities for the purpose of preparing a legal critique of the entity.
3 His earlier request for these records was withdrawn.