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 Office of the Henry County Judge-Executive's denial of Peggy Webster's June 30, 2005, request to inspect the following:
[a]ll documents pertaining to all money received from state and federal programs by Henry County during the period of July 1, 2003 through June 30, 2005.
For the reasons that follow, we conclude that Henry County violated the Open Records Act in denying Ms. Webster's request on the basis of KRS 61.872(6).
By letter dated July 6, 2005, Virginia Lee Harrod, responded to Ms. Webster's request on behalf of the Office of the Henry County Judge-Executive. In her response, addressed to William P. Sturm, Ms. Harrod advised:
Enclosed please find your client's most recent request. As you can tell by the nature of your client's request this places an unreasonable burden in producing public records on the Henry County Fiscal Court. Due to the coincidental nature of the timing of the request, it is clearly intended to disrupt essential functions, and is another litigation ploy to harass the Judge Executive and his office. The estimated cost to the county of your "Concerned Citizens" request is unduly expensive. I thought the "Concerned Citizens" wanted to save tax dollars, not merely waste them in harassment pranks. Please let me know if I assumed incorrectly. The statute upon which I rely is K.R.S. § 61.872(6).
Dissatisfied with Henry County's response, Mr. Sturm initiated the instant appeal, arguing that the agency had violated the Open Records Act by failing to meet its burden that the request was unduly burdensome or that the purpose of the request was intended to disrupt the essential functions of the agency.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Harrod provided this office with a supplemental response to the issues raised in the appeal. In her response, Ms. Harrod explained:
1. There is a history of harassment and fatuous ploys to disrupt the Henry County Judge Executive's office since November 5, 2003 by Hugh McBurney and the "concerned citizens" have made at least 13 harassing letter[s] to the Editor [of] the Henry County Local which are enclosed hereto as Exhibit "A".
2. This request is intentionally over burdensome. The requester Peggy Webster is the wife of George Webster a Plaintiff in the concerned citizens litigation which is enclosed hereto as Exhibit "B". Counsel Sturm who has requested "Class Action" status on behalf of the concerned citizens should know that Mrs. Webster is one of his alleged litigants.
3. As an example of the on-going harassment attached hereto is Exhibit "C," passed out by the "concerned citizens" and worn on their hats which actually caused a delay in the commencement in the regularly scheduled Fiscal Court meeting.
4. The records requested are audited annually with approximately 120 hours of auditor hours mandated to conduct the audit which costs the County approximately $ 30.00 per hour. The auditor knows where to look in the records for the requisite information, and spends at a minimum three (3) weeks full time man hours to obtain the requested records. The records requested are thus so burdensome the cost to research them would be excessive.
5. Over the past 25 years the Henry County Fiscal Court has never received this many open records requests, repeatedly, by any one group which has caused a disruption in the operation of governmental functions. Clearly, the requesting parties are succeeding in costing the county not only man-hours but also diverting the necessary functions of the office of the Henry County Judge Executive away from governmental functions to deal with the on-going harassment.
6. Another example of harassment by the concerned citizens and Appellant is enclosed Exhibit "D" which is a baseless allegation tantamount to attempted malicious prosecution intended only to disrupt governmental operations wherein the concerned citizens sought to prosecute the Judge Executive for pursuing mandatory garbage collection.
In a reply provided to this office, Mr. Sturm addressed issues raised in Ms. Harrod's response. In addressing Henry County's claim that Ms. Webster's request was over burdensome, Mr. Sturm argued:
In response paragraph 4, Henry County finally gets to the guts of its "over burdensome" case. The county states that "the records requested are audited annually which takes 120 hours of auditor time." Henry County then implies that only the auditor who audits the records knows where to look in the records for the requested information and that it will take the auditor a minimum of three weeks to obtain the requested records.
This paragraph, when examined closely, doesn't make much sense. I understand the part in which the county says it takes 120 auditor hours to conduct a mandated annual audit. I do not understand that it will take the same auditor another 120 hours of time to pull the requested records. In fact, the first part of the first sentence of paragraph 4 unequivocally states that "the requested records are audited annually . . . ." With that in mind, the county can put boxes of audited records on a table in some office in the Courthouse and allow Peggy Webster to review them. This would not seem to be a great task. And, if Henry County has delegated the task of keeping up with these public documents to outside auditor, it is the duty of the county to pay the auditor to retrieve the requested documents and present them for review to Ms. Webster. As I stated in my initial letter, Ms. Webster is asking to review records from programs, most of which should be self-contained in that the records for each program are kept together for auditing purposes. It should thus be relatively easy for the county to pull these admittedly public documents for review for Ms. Webster. If the requested documents are not well maintained in reasonable order, Henry County should bear the expense of sorting them out.
In replying to Henry County's claim that the intent of Ms. Webster's request was to disrupt the essential functions of the agency, Mr. Sturm noted that in regard to the county's claim that of the "13 harassing letters to the editor" sent to the local new newspaper, none were sent by Ms. Webster and even if some had been, letters to the editor about the workings of local government did not constitute harassment of Henry County. He further argued that the fact that Ms. Webster's husband was a plaintiff in the mandatory garbage litigation with the county, did not deprive Ms. Webster of her right to make an open records request to the local government. Addressing the issue that some of the citizens wore a $ 3.00 bill with presumably the County Judge Executive's picture in it and titled "the 'trashed' voters of Henry County," and had caused a delay in the fiscal court meeting, Mr. Sturm argues that the demonstration was merely a type of political statement. In addressing Henry County's complaint that the county has never received this many open records requests, repeatedly by anyone group which has caused a disruption of governmental functions, Mr. Sturm notes that Henry County does not bother to state the number of open records requests it has received in each calendar year for the last year or two. In summarizing his reply, including the citizen complaint letters about the local government sent to the County Judge/Executive and the Attorney General, Mr. Sturm stated:
In conclusion, Henry County's response is woefully inadequate. The documents requested are admittedly public records. It is not harassment of a county when citizens complain about the actions of county officials to their local newspaper, to their local County Judge/Executive, and to the Attorney General of Kentucky. It is not over burdensome on a county to produce program records which admittedly have to be audited annually which should thus make them more readily available for inspection. The fact that the county has to pay the auditor an hourly fee to retrieve them because no county employee can do this is the county's business and is not sufficient reason to deny inspection.
We are asked to determine whether Henry County properly relied upon KRS 61.872(6) in denying Ms. Webster's request as overly burdensome or that its intent was to disrupt the essential functions of the agency. It is the decision of this office that Henry County failed to satisfy its statutory burden of proof to sustain the evocation of KRS 61.872(6), and thus its denial of the request constituted a violation of the Open Records act.
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 this provision, the Attorney General has observed:
[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 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. However, we have also recognized 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.
00-ORD-72, p. 3, citing 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 the agency in effectively executing its public function." Id., citing 96-ORD-155, pp. 3, 4.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). 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.
Id., p. 3.
Only if the agency has adduced evidence to support a finding that the burden is indeed unreasonable, will the Attorney General uphold its action. See 00-ORD-180; 00-ORD-72. As we emphasized at page 4 of 00-ORD-72, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " Said another way, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79.
In its initial response, Henry County merely cites KRS 61.872(6) and makes an unsupported allegation that granting Ms. Webster's request placed an unreasonable burden in producing public records and, due to the timing of the request, was intended to disrupt its essential functions. This response clearly was inadequate to support a finding that the request met the requisite burden for invoking KRS 61.872(6). Likewise, we find that the supplemental response also was inadequate. The major portion of Henry County's response deals with the concerned citizens voicing their opinion on the mandatory garbage collection issue in the local paper, to local and state officials, and possibly causing a delay in the start of a public meeting, and generally relates to non-open records issues. Addressing open records related issues in its supplemental response, Henry County states that the amount of recent open records requests has caused a disruption of the operation of governmental functions. However, the agency fails to set forth the volume, frequency, and nature of the requests. This does not support, with clear and convincing evidence, a finding that the instant request and others were made with an intent to disrupt the essential functions of the agency, as required by KRS 61.872(6).
Addressing the over burdensome issue in its supplemental response, Henry County advised that the requested records are audited annually with approximately 120 hours mandated to conduct the audit which costs the county approximately $ 30.00 per hour; that the auditor knows where to look for the requested records; and that it will take a minimum of three weeks to obtain the requested records. However, Henry County does not indicate the volume of records involved, how they are maintained, or why it would take the auditor 120 hours to pull the requested records. Although Ms. Webster's request is broad and does not precisely describe the requested records, the records are necessarily of an identified limited class as evidenced by Henry County's acknowledgment that the requested records are audited annually. The agency's response does not adequately establish that the cost of producing the records would be excessive. As Mr. Sturm argued in his reply, Henry County could put boxes of the audited records on a table and let Ms. Webster spend her own time in reviewing the requested records. Under these circumstances, Henry County has failed to establish with any clear and convincing evidence that production of the requested records for inspection would place an unreasonable burden on the agency. Accordingly, these records should be made available for Ms. Webster's inspection.
Finally, with respect to the issue of procedural noncompliance, Henry County's failure to respond directly to Ms. Webster, Mr. Sturm argues that Henry County violated the Open Records Act by sending its response to him, rather than to Ms. Webster, who made the original request.
In 05-ORD-166, we noted that in a line of open records decisions this office has observed:
OAG 82-169, p. 2. On the narrower issue of direct communication between an agency's employees, the agency's attorney, and a litigant, relative to the litigant's open records request, this office has concluded that Supreme Court Rule 3.130, Rule 4.2, does not prohibit such communications. 97-ORD-71; 97-ORD-98. That rule provides:
In 97-ORD-71, the Attorney General held that the fact that the requester was an attorney representing a party who was engaged in litigation with the agency that was the subject of his open records request did not relieve the agency of its duty to respond, or require the requester to address his request to the agency's attorney, Rule 4.2 notwithstanding.
In a case even more directly on point, the Attorney General affirmed 97-ORD-71, reasoning:
Although there are no Kentucky cases on point, this position finds support in a New York case, Fusco v. City of Albany, 134 Misc. 2d 98, 509 N.Y.S.2d 763 (Sup. 1986). Faced with the same question, and construing a nearly identical rule of professional conduct, the New York Supreme Court held that the contention that the rule "prohibits an attorney for a litigant suing a governmental body from communicating with employees of that governmental body for the purpose of examining public records under the Freedom of Information Law" was erroneous. Id. at 766. The court noted:
The key language is that permitting an attorney to directly contact an adverse party when "authorized by law to do so." The Freedom of Information Law is a law authorizing such direct contact without the prior consent of the government's lawyer. Any other construction would thwart the legislative intent behind FOIL. . . .
Id. Kentucky's Rule of Professional Conduct contains the same key language. In our view, the logic of Fusco City of Albany can be extended to the present appeal.
97-ORD-98, p. 5, 6. In the latter decision, the requester/ litigant was a non-attorney and not bound by the Rules of Professional Conduct. We concluded that there was no impediment to direct communication between agency employees, the agency's attorney, and the litigant/requester relative to his open records request. See also, 99-ORD-64. With the exception of the restrictions on access to nondiscoverable records imposed on parties to litigation, which is provided for at KRS 61.878(1), litigants stand in the same shoes as any other requester under the Open Records Act.
99-ORD-126, p. 3, 4. Extending this line of reasoning to the instant appeal, we find that the Henry County Attorney was not foreclosed by ethical considerations from directly responding to Ms. Webster's request, and that her failure to do so was inconsistent with the procedural requirements of the Open Records Act codified at KRS 61.880(1) , which provides, in relevant part,
. . . Each public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. . . .
(Emphasis added.)
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
John Logan BrentHenry County Judge/ExecutiveP.O. Box 202New Castle, KY 40050
Virginia Lee HarrodHenry County AttorneyP.O. Box 128New Castle, KY 40050