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 Kentucky State Police (KSP) violated the Open Records Act in denying the request of William P. Sturm to inspect "[a]ll lab reports produced by the Kentucky State Police's Region 5 Lab in London, Kentucky from January 1, 1986 through December 31, 1989." For the reasons that follow, we conclude that the KSP has not established by clear and convincing evidence that granting Mr. Sturm's request would be unreasonably burdensome and thereby violated the Act in denying his request on the basis of KRS 61.872(6).
Responding to Mr. Sturm's request, the KSP initially denied the request on the bases of KRS 189.635 and 99-ORD-14, stating that the request placed "an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " After receipt of notification of the appeal, the KSP submitted a response to the issues raised in the appeal. Supplementing and enhancing its initial response, Brenn O. Combs, Staff Attorney, KSP, explained in part:
The response Mr. Sturm received from Ms. Perkins was not entirely correct, in that it cited the inapplicable KRS 189.635, but it also provided an independently sufficient legal basis for the denial, as an unreasonably burdensome blanket request, citing 99-ORD-14 . . . .
With regard to Ms. Perkins' denial on the basis that the request was unduly burdensome, the London lab produced an average of approximately 1,855 reports per year, or a total of more than 7,400 reports, during the four-year period corresponding to Mr. Sturm's request. (See Fischer Aff., attached hereto as Exhibit A). Each report is approximately 7-10 pages in length, for about 63,000 pages of documents. ( Id. ) Those documents, with the possible exception of an unknown number of long-open or re-opened files at various state police posts, are currently archived on microfilm and would have to be located printed individually, page by page. ( Id. )
More importantly, the KSP Central Lab facility where those documents are archived would have to shut down all current document preparation to have the one person qualified and permitted to access, print and store lab reports on microfilm, retrieve the documents that Mr. Sturm requested. ( Id. ) She would have to shutdown current document preparation, thereby adding to constantly problematic lab backlogs, to retrieve the 63,000 or so pages Mr. Sturm has requested. ( Id. ) She estimates it would take about one month per year of cases to locate and print, without taking into account the need to review and redact confidential information. ( Id. ) Under the system currently in use, each record has to be searched individually and then printed page by page. ( Id. )
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The lab reports requested would, because of their age, be mostly closed cases but may include some open cases in which, "the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication." The lab does not know which cases are open or closed or which information may need to be kept confidential to protect witnesses, informants, undercover officers and ongoing investigations. ( Id. )
After receipt of KSP's supplemental response, Mr. Sturm provided this office with a reply in which he argued, in relevant part:
In a nutshell, the KSP is seeking to deny inspection of admittedly public records by the use of a filing system so difficult to use and retrieve documents that only one person in all state government seems trained to use it.
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It is my position that the Kentucky State Police can file documents by whatever means it wants (as long as it complies with the law). But if it uses an antiquated, outmoded, hard to access system such as apparently the KSP is using here, it still has the responsibility to permit access to requestors who want to review admittedly public KSP documents.
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It also ought to be added that when an agency asserts "unreasonable burden, " it must prove such unreasonable burden by clear and convincing evidence. KRS 61.872. While my request on behalf of my client is voluminous, it does not rise to an unreasonable burden. The "burden" on the KSP has been mostly placed there by its own decisions and record keeping. Such decision making should not be permitted to allow the KSP to deny my client the right to inspect admittedly public records.
If the KSP denies inspection in this case, the KSP will be able to deny inspection of almost any document of a similar nature on the grounds that the records are kept on difficult to access microfilm and only one employee to access and copy them. This is not the result envisioned by the Open Records Act.
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In conclusion, the KSP should not be allowed to thwart Mr. Kutnyak's right of inspection by having an antiquated, outmoded, or a difficult system on which to access and retrieve archived records. Nor should it be allowed to deny inspection for the lack of personnel. Third, it should not be allowed to deny inspection on the grounds that Mr. Kutnyak is asking to inspect a lot of documents. In short, KSP should be required to honor Mr. Kutnyak's request, even though his request may not be able to be fulfilled immediately and may take some time.
(Emphasis in original).
We find Mr. Sturm's arguments persuasive and conclude that the KSP violated the Open Records Act in denying the request on the basis of KRS 61.872(6). Pursuant to KRS 61.872(6):
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 97-ORD-6, this office was asked to determine if a request for specific information appearing on accident reports was unreasonably burdensome where the requester agreed to provide all manpower necessary to extract the information. We concluded that the request was not unreasonably burdensome, relying on OAG 89-76. In the latter opinion, the requester asked to inspect all automobile accident reports prepared by a local police department during a four week period. The department resisted disclosure, arguing that the request would impose an unreasonable burden, and an appeal followed. The Attorney General held that the department had not made a sufficient showing of undue burden since the requester could "be shown where the reports are filed and review the reports himself." Applying this reasoning to the facts presented in 97-ORD-6, the Attorney General observed:
OAG 89-76 echoes a line of Attorney General opinions dating back to 1976 when the Open Records Law was enacted. In OAG 76-375, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . ." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the requester asked that he be allowed ". . . to inspect the . . . documents during the regular office hours of the department. . . ." OAG 81-198, p. 4. The Attorney General concluded that the requester had "not made any demand on [the] agency which is beyond the scope of the Open Records Law. " Id. Finally, in OAG 84-278 the Attorney General held that a request for 10,000 records, although "certainly 'voluminous', . . . is not indicative of an 'unreasonable burden' on the office[]" where the requester stated that she was willing to inspect the records a few at a time. OAG 84-278, p. 2.
97-ORD-6, p. 4. Here, as in OAG 89-76 and 97-ORD-6, Mr. Sturm advised that his client is willing to inspect the large volume of records, "even though the request may not be able to be fulfilled immediately and may take some time." This would eliminate much of the burden associated with production of the desired records. Here, as in the cited open records decisions, the requester "is asserting nothing more than his right, under KRS 61.872(3)(a), to inspect public records during regular office hours of the public agency. " 97-ORD-6, p. 4. And, here, as in our earlier decisions, we find that "such a demand is within the scope of the Open Records Law. " Id. 1 The KSP should arrange for Mr. Sturm's client to inspect the requested lab reports. Although the inspection of the records may require days or weeks, "the process must be begun." 97-ORD-6, citing OAG 89-81, p. 4.
Admittedly the number of records involved in this request is voluminous, but as acknowledged by the KSP, most of the requested lab reports (for the years 1986 - 1989), because of their age, would be closed cases and would be subject to public inspection, once closed. See KRS 61.878(1)(h) and KRS 17.150(2).
As argued by Mr. Sturm and explained by the KSP, the burden of producing the records is due, in part, by the manner in which they are maintained. KSP argues that the records would have to be reviewed manually for possible redaction of some information. While the KSP may have chosen to organize its files without separating confidential information from non-confidential information, thus creating the need for a manual search, such cannot be the basis for denying access to otherwise open public records under KRS 61.872(6). 00-ORD-180. See, 93-ORD-41 (An agency's failure to maintain a central filing system by which records may be easily accessed does not constitute a recognized exception to the Open Records Act. ) The Court of Appeals has noted, in an unpublished decision, that an agency "has no right to deny access to nonexcepted documents simply because it mixes those documents with excepted documents." Revenue Cabinet v. F. Keith Brown, No. 96-CA-0843-MR (Ky. App. 1997). 2
In 97-ORD-6, this office rejected KSP's argument that its Henderson Post had insufficient manpower to manually search some 2,500 accident reports to redact and thus, improperly relied upon KRS 61.872(6) in denying the request. We noted that the presence of some exempt information in the disputed records did not necessarily relieve the agency of the obligation to provide all the nonexempt information "the alleged necessity of separating exempt from nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5. This holding was predicated on the notion that the decision to redact rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1), with the exception of KRS 61.878(1)(k) and (l), are permissive, not mandatory. For the same reason, we find the necessity of going through each of the microfilmed records involved in the instant appeal to redact possible confidential information is within the discretion of the KSP, and thus cannot serve as a basis for denying access of the records, under KRS 61.872(6). Particularly in light of the KSP's acknowledgment that most of the requested lab reports are closed cases.
Moreover, while we also recognize that the time required to provide access to the requested lab reports may be burdensome, we do not find that it would be unreasonably burdensome, under the facts of this case, to justify the invocation of KRS 61.872(6) . In this regard, this office in 93-ORD-41, stated:
While we concede that the clerical hours required to compile those documents may be burdensome, we remind KSP of the position taken by this Office in an early open records appeal:
OAG 77-151, p. 3. Hence, at page 2 of OAG 84-278, we held that a request to inspect "10,000 cases [is] certainly 'voluminous, '" but not necessarily unreasonably burdensome. KSP should expeditiously make arrangements for [the requester] to review these records, and advise her of the earliest date, time, and place for inspection.
For these reasons, we conclude that the KSP has not established with clear and convincing evidence that providing the requested lab reports for Mr. Sturm's client's inspection would constitute an unreasonable burden and find that KSP's reliance upon KRS 61.872(6) in denying inspection of the records constituted a violation of the Open Records Act. Accordingly, the records should be made available for inspection. As noted above, although the inspection may take some time, the process must be begun.
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.
William P. SturmSuite 150, PMB 1353735 Palomar Centre DriveLexington, KY 40513
Rick StiltnerOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Brenn O. CombsStaff AttorneyKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " [a]ny person shall have the right to inspect public records. " KRS 61.872(3)(a) and(b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof . . . ."
2 Although Revenue Cabinet v. F. Keith Brown is an unpublished opinion that, in accordance with CR 76.28(4)(c) cannot be cited or used as authority in any other case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies to redact per KRS 61.878(4).