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 responses of the City of Bellevue Police Department (BPD) to the requests of Greg Steenken for certain records related to the Department's application, testing, and hiring process violated the Open Records Act. For the reasons that follow, we find the responses in substantial compliance with the Act.
By letter dated July 20, 2005, Mr. Steenken requested a copy of the following records:
A copy or a brief written summary of the Bellevue Police Department's Policy and Procedures regarding hiring and processing applications for the position of Police Officer.
My score and ranking on the written test that was administered by your agency on 06/05.
The names and ranking of all individuals that received interviews from the written test on 06/05.
By letter dated July 24, 2005, William D. Cole, Chief of Police, BPD, responded to Mr. Steenken's request. Addressing his request for a copy or a brief written summary of the BPD's Policy and Procedures regarding hiring and processing applications, Chief Cole provided a brief written summary, explaining:
The process for handling applications and the hiring process is not a part of the Bellevue Police Department's Policy Manual. However, I will provide a description of the procedure used.
1. Applications are always accepted from any person.
2. Basic information from applications is entered into a data file. The actual application is kept on file in the office of the Chief of Police.
3. A letter was sent to each applicant informing them of an opening and inviting them to take part in the written test. Applicants were permitted to choose from a number of testing dates.
4. The applicants were rated from highest to lowest, based on the numerical scoring of the written test.
5. The top fifteen applicants were invited to take part in the oral test. In addition, the next five highest scorers, who were POPS certified and currently employed as peace officers (which enabled them to be considered as lateral transfers) were invited to take part in the oral test.
6. The applicants who took the oral test were rated from highest to lowest, based on the numerical scoring of the oral test.
7. The top eight applicants were invited to be interviewed by the City Administrator and Chief of Police.
8. A conditional offer of employment was made to one of those top eight applicants, based on the results from the interview.
9. A background investigation, medical evaluation, polygraph, drug screen, and psychological evaluation are completed on that applicant at this time. If that applicant successfully completes this process, he will begin employment with the City of Bellevue.
Next, addressing Mr. Steenken's request for his score and ranking on the written test administered on June 5, 2005, Chief Cole advised him that since he did not test with the BPD on that date there was no written score on that date.
In response to Mr. Steenken's request for the "names and ranking of all individuals that received interviews from the written test on 06/05," Chief Cole advised that no one received an interview based on the written test scores.
On August 8, 2005, Mr. Steenken submitted another request to the BPD, asking for the following information:
The names of the top (15) applicants that were invited to take part in the oral test, along with their numerical scores from the written test.
The names of the next (5) scorers, who were POPS certified that that were invited to take part in the oral testing, along with their numerical scores from the written test.
By letter dated August 15, 2005, Chief Cole denied Mr. Steenken's August 8th request on two grounds. In his response, he stated:
Pursuant to KRS 61.872(6), I deny your request:
Since applying for employment with this department you have filed three open records requests relating to your application and our employment selection process. In the first request you demanded a copy of your application. In the second request, you demanded information that had already been provided to you via phone conversation, and during the testing process. In your third request, you are demanding information that was offered during that same phone conversation, but which you declined.
It is apparent that your repeated requests are designed to disrupt the function of this department. Further, there is every indication that your requests are formed in such a way as to intentionally create an unreasonable burden on this department, and have become harassing in nature.
Additionally, KRS 61.870 to 61.884 provides a citizen with the right to inspect public documents. The statutes do not require a public agency to prepare special reports, compile special lists or statistics, or in any other way manipulate public information to make it more digestible or useable for any citizen. Your most recent request demands that I prepare a special list or report based on our applicant and employment selection files. Your second request demanded the same thing. I am not required to prepare such a report or lists. At this point it is apparent that you are framing your demands in such a way as to be disruptive to this department.
Dissatisfied with the responses of the BPD, Mr. Steenken initiated the instant appeal.
We are asked to determine whether the responses of the BPD violated the Open Records Act. We find that, with the exception that the BPD did not establish with clear and convincing evidence that the open records requests placed an unreasonable burden in producing records or that repeated requests were to disrupt the essential functions of the office, the responses were consistent with the Act and prior decisions of this office.
We note that some of the requests were for information, rather than for specific records, and for lists of information. An agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Moreover, this office has also long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251. Nevertheless, the BPD provided Mr. Steenken, as he requested, with a brief written summary of the process for handling applications and the hiring process. Accordingly, we conclude that these portions of the response went beyond that required by the Open Records Act and thus would not constitute a violation.
We next address Mr. Steenken's request for his score and ranking on the test given on June 5, 2005. In a supplemental response submitted to this office addressing the issues raised in the appeal, Chief Cole explained that Mr. Steenken had tested with the BPD on June 4, 2005 and thus he had no scoring and ranking for the test administered on June 5, 2005. Chief Cole indicated in his response that he had previously explained this to Mr. Steenken in a telephone conversation. A public agency discharges its duty under the Open Records Act by affirmatively advising that it does not have a record responsive to the request or that it does not exist. 99-ORD-98. The BPD discharged its duty under the Open Records Act by affirmatively so advising and explaining why the requested record did not exist. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
As to Mr. Steenken's request for the "names and ranking of all individuals that received interviews from the written test on 06/05," Chief Cole, in his supplemental response, advised:
Mr. Steenken's third demand was particularly confusing because Mr. Steenken had already been told on more than one occasion that no applicant proceeded directly from the written test to an interview. From the written test, applicants proceeded to the oral test. The top eight applicants from the oral test are the only ones who proceeded to an interview.
Further, during this applicant selection process the Bellevue Police Department had five (5) scheduled testing times to meet the needs of our applicants. The scores of the written tests from 06/05 (as requested by Mr. Steenken) were never ranked separately from the scores on the other testing dates. The final ranking was compiled after all of the testing dates and included the scores of all applicants who tested on any of the available testing dates. There is no such record that reflects the information requested in point 3, above.
Here, too, the BPD affirmatively advised that no record responsive to the request existed and explained why. This was all the agency was required to do. Moreover, as noted above, a public agency is not obligated to compile a list or create a record to satisfy an open records request. 02-ORD-88. The BPD was not required by the Open Records Act to create a record or list to meet the parameters of Mr. Steenken's request.
The same would apply to the two requests in Mr. Steenken's August 8, 2005, correspondence for the names and numerical scores of the top 15 applicants and the next 5 scorers, who were POPS certified. Chief Cole advised that records containing this information did not exist. The BPD was not required to create special lists to contain the information Mr. Steenken was seeking. We find no violation in this regard.
However, we conclude that the BPD has not established with clear and convincing evidence that Mr. Steenken's requests placed an unreasonable burden on the agency in producing records or that repeated requests were to disrupt the essential functions of the office.
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 construing the invocation of KRS 61.872(6) by a public agency, this office, in 05-ORD-152. pp. 5-6, observed:
In an early open records opinion, the Attorney General construed this provision:
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.
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.
Although Mr. Steenken may have made repeated requests for information, both by telephone and open records request, we conclude that in this instance, the BPD has not established with clear and convincing evidence that his intent was to disrupt the essential functions of the agency. Thus, its reliance upon KRS 61.872(6) was misplaced. This is not to say that such a case could not be made in the future, but that no such case was made by the BPD in this appeal.
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.
Greg T. Steenken6 Theta CourtErlanger, KY 41018
Col. William ColeChief of PoliceBellevue Police Department 616 Poplar StreetBellevue, KY 41073
Frank E. WarnockCity Attorney907 Grandview AvenueBellevue, KY 41073-1518