Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Ludlow violated the Kentucky Open Records Act in denying the request of Art E. Schutte to inspect eight categories of records concerning Joe Schutzman, including, "but not limited to, all correspondence, forms, notes, invoices, e-mails, memoranda, photographs, videotapes and audiotapes" that are responsive to his request. Because the City of Ludlow has not adduced clear and convincing evidence that honoring Mr. Schutte's request would place an unreasonable burden on the City, or that his repeated requests are intended to disrupt other essential functions of the City, this office finds the City's reliance upon KRS 61.872(6) is misplaced. Accordingly, the City is required to make available for inspection all nonexempt public records in the custody of the City during regular office hours, and to provide suitable facilities for the exercise of this right in compliance with KRS 61.872(1) and KRS 61.872(3).
By letter directed to Brian Dehner, City Administrative Officer, on October 17, 2005, Mr. Schutte requested access to the following:
. All records relating to the contract(s), pay rate, job description and job review/performance of the building inspector/zoning administrator, Joe Schutzman.
. All records of time worked by Joe Schutzman as submitted by him, including the payroll register (if applicable) from January 1, 2004 through September 30, 2005.
. All records of all payments and/or reimbursements made by the City to Joe Schutzman for the period January 1, 2004 through September 30, 2005.
. All cell phone records reflecting telephone calls made by Joe Schutzman and/or made [to Joe Schutzman].
. All other phone records reflecting telephone calls made by Joe Schutzman and/or made to Joe Schutzman.
. All insurance documents furnished to the City of Ludlow, Ky. by Joe Schutzman for his services.
. All documents relating to the mode of transportation by Joe Schutzman.
. The vendor balance detail sheet from the accounting records for the period January 1, 2004 through September 30, 2005.
In a timely written response, Mr. Dehner denied Mr. Schutte's request on the basis of KRS 61.872(6). According to Mr. Dehner, the denial is "based on the volume of documentation being requested during a time when the City is in the midst of tax collection, solid waste fee collection and audits." In addition, Mr. Dehner believed that Mr. Schutte's request was "meant to disrupt these services as well as Building and Zoning Services." As observed by Mr. Dehner, the request was also denied because Mr. Schutte requested "the same information for inspection in 2004." Mr. Schutte has repeated his request and the "continual collection of this information is burdening our administrative staff and disrupting" the daily operations of the City in Mr. Dehner's view. 1 In conclusion, Mr. Dehner advised Mr. Schutte that some of the information he requested is maintained by "Schutzman Inspection Services LLC, located at 2472 Kremer Lane, Villa Hills, Kentucky 41017," the company "the City of Ludlow contracts with to provide Building and Zoning services." 2
By letter dated January 4, 2006, Mr. Schutte initiated this appeal from the denial of his request; attached to Mr. Schutte's letter are copies of a nearly identical request that he submitted on December 24, 2003, on which Mr. Schutte notes that copies of the responsive records were "'received,'" as well as the response of Paul G. Weekly, Clerk/Treasurer, advising Mr. Schutte that Joe Schutzman is "not an employee of the city but a contractor," so the City does not maintain his personnel records. Mr. Schutte received "a prompt response per the Clerk/Treasurer at that time." Having inspected the records on January 9, 2004, Mr. Schutte advised Mr. Weekly, "who is no longer a City employee," which records to copy; Mr. Schutte received the copies "within a week." According to Mr. Schutte, the records "were not voluminous. " In summary, Mr. Schutte is requesting the same records that he received previously "but for the period of January 1, 2004 through September 30, 2005."
Upon receiving notification of Mr. Schutte's appeal from this office, Mr. Dehner supplemented his response on behalf of the City. As Mr. Dehner notes, Mr. Schutte has "requested inspection and review of the same information three consecutive years now." If Mr. Schutte was not trying to place an undue burden on the City, "he would have only requested those documents dated 2004 through 2005 for inspection. " Likewise, Mr. Schutte would "specifically state which document(s) he is interested in reviewing instead of stating he would like to review 'all' documents" relating to Joe Schutzman. In short, Mr. Schutte's request is not framed with "reasonable particularity. " Citing 05-ORD-014, Mr. Dehner argues that a request for all documents containing "a name, a term, or a phrase is not a properly framed open records request and can be denied" as an undue burden pursuant to KRS 61.872(6); such a request "does not identify records with 'reasonable particularity, ' nor are they records of an identified, limited class." In the City's view, Mr. Schutte's request falls within this category. Because Mr. Schutte has specified both a different timeframe and the type of records being requested, this office respectfully disagrees; the request is neither duplicative nor framed with insufficient clarity so as to preclude the City from identifying and retrieving potentially responsive records, as evidenced by the ability of the City to honor a nearly identical request in the previous year.
In conclusion, Mr. Dehner reiterates that Mr. Schutzman is not an employee of the City. Accordingly, the City does not maintain "any employee records, cell phone records," or "other various records Mr. Schutte has requested." 3 Additionally, the City is concerned by the term "all" as "a municipality can not guarantee they can produce 'all' records an individual would perceive to relate to an individual." 4 In other words, the City "may not be aware of what Mr. Schutte may later say he requested and [the City] did not provide for review." It is the opinion of the City that Mr. Schutte needs to "specifically define" the records that he would like to inspect so the City knows which records "to pull for his inspection" ; the City has "used Schutzman Inspection Services LLC for 15 years." Nevertheless, the City has tried to comply with Mr. Schutte's request "the past two years by taking valuable staff time and resources to research and compile" the information requested. 5
Based upon the following, this office disputes the City's characterization of Mr. Schutte's request and, therefore, concludes that the City violated the Open Records Act in denying Mr. Schutte access to the requested records 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 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:
00-ORD-72, pp. 2, 3, citing OAG 77-151, p. 3. However, this office has 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 clear and convincing 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 this office 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 OAG 89-88, the Attorney General held that the Department of Insurance had sustained this burden by indicating that the requested records consisted of around 800 documents and explaining the difficulty of separating the confidential material from the nonconfidential material. Similarly, in OAG 91-58, this office found that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies. Because the agency explained that the requested documents might be located in six different offices throughout the city and county, and described the difficulty in separating the exempt from the nonexempt material, this office held that it had sustained its burden of proof under KRS 61.872(6). Perhaps the best illustration of this principle is 96-ORD-42, in which the Attorney General affirmed the Workforce Development Cabinet's denial of a request for P-1s reflecting promotions in the Department for Employment Services between July 1, 1994, and June 30, 1995, on the basis of KRS 61.872(6). In attempting to satisfy this intentionally high standard, the Cabinet explained:
The Workforce Development Cabinet does not have a list of DES employe[es] who received promotions during this period. The only manner in which the Cabinet could determine which DES employees received promotions during the time in question is to physically examine the 1,167 personnel files transferred to the Cabinet from the Cabinet for Human Resources [] at the time of the reorganization. The Division of Personnel Services [] estimates that it would take an average of fifteen (15) minutes to examine each personnel file. It would take staff of the Division, with an average salary of $ 16.49 per hour, 291.765 hours to determine which employees received promotions. It is estimated that it would cost $ 4,810.96 just to make this initial step to comply with your request.
After the individuals who received promotions during the time covered by your request are identified, the Division would have to remove the P-1s from their files; copy the P-1s, redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 back into the personnel file; and copy the redacted P-1s for your inspection. The Division estimates that it would take an average of fifteen (15) additional minutes to complete these procedures for each employee who received a promotion.
It is this degree of specificity that KRS 61.872(6) envisions but is noticeably absent from the City's denial of Mr. Schutte's request. See also, 97-ORD-88 (affirming denial by Cabinet of Health Services on this basis). In contrast, this office held that the Kentucky Revenue Cabinet improperly relied upon KRS 61.872(6) in denying a request for copies of all circuit court agreed judgments entered into by the Cabinet from 1993 through September 1994, requiring payments in excess of $ 10,000.00, in 95-ORD-2. In support of its position, the Cabinet argued that its Legal Services Division maintained a caseload well in excess of 200 cases during the relevant time frame and had closed a "substantial number of files during that time." As further argued by the Cabinet, manually retrieving and examining these files would be time consuming, unduly burdensome, and disruptive of its essential functions. In addition, a portion of the Cabinet's litigation and settlements are handled by the Enforcement Legal Section of the Division of Collections and its files are not maintained in a fashion that would enable it to readily respond to such a request. Because the Cabinet failed to establish by clear and convincing evidence that granting the request would be unreasonably burdensome, this office did not uphold the denial. See also 99-ORD-4 (holding that proof of four requests in a four and one-half week period did not constitute an unreasonable burden or establish intent to disrupt essential agency functions).
When assessing whether an open records request places an unreasonable burden upon an agency, this office has long recognized:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation . . . . However, it is stressed that this office has previously opined that a request to inspect 10,000 cases [is] certainly 'voluminous', but not necessarily unreasonably burdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2. In 00-ORD-180, the requester sought copies of "any/all complaints" brought against the Kentucky Department of Corrections or any of its divisions and the Kentucky Parole Board during the preceding two years that involved "the issue of drug testing by Kentucky probation and/or parole officers." In our view, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. Likewise, a request to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002," was narrow enough to meet this standard. 04-ORD-028, p. 8. Such is the case here.
In contrast, this office criticized "open ended any-and-all-records-that-relate-type of requests" in 96-ORD-101 and 99-ORD-14, as well as the "broad discovery request[s]" at issue in 00-ORD-79. By requesting to inspect specific types of documents, such as contracts, the "payroll register," insurance and transportation records, and the "vendor balance detail sheet," relating to Mr. Schutzman, during the limited timeframe of January 1, 2004, through September 30, 2005, Mr. Schutte narrowed the scope of his request enough to enable the City to identify and locate potentially responsive records. In our view, the City construes the request at issue more broadly than the language employed requires. With respect to the degree of precision required in drafting a request, the Attorney General has said:
An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6; 01-ORD-51.
Although Mr. Schutte's request is somewhat broad and does not "precisely describe" 6 the requested records, the records are necessarily of an "identified, limited class," as further evidenced by the City's past action. In other words, Mr. Schutte framed his request with "sufficient clarity" to enable the City's records custodian to identify and retrieve potentially responsive records contrary to the City's assertion; nothing more is required. Upon his satisfaction of this "precondition to inspection, " the burden of proof shifted to the City.
When initially denying Mr. Schutte's request, the City cited the "volume of documentation" requested, without further elaboration, along with inconvenient timing, an irrelevant factor, as the reasons for invoking KRS 61.872(6). "A bare allegation that the request is unreasonably burdensome will not suffice." 99-ORD-119, p. 5. Rather, it is "incumbent on the agency to indicate, at least in general terms, the difficulty in identifying, locating, and retrieving the requested records." 99-ORD-72, p. 6. On appeal, Mr. Dehner elaborates upon the City's position, relying partially upon Mr. Schutte's prior requests to establish his purported intent to place an unreasonable burden on the City. Standing alone, the fact Mr. Schutte has submitted nearly identical requests for "three consecutive years now" does not constitute clear and convincing evidence of such intent since the requests have been neither duplicative (different timeframes) nor frequent; the remaining arguments raised by the City are equally unpersuasive for the reasons specified.
To the extent the City is merely requesting clarification as to the scope of Mr. Schutte's request, such a response is not properly characterized as a denial. 04-ORD-198, p. 3; 05-ORD-137. However, invocation of KRS 61.872(6) is not appropriate on the facts presented; the City does not indicate the locations at which responsive records might be stored or otherwise elaborate as to the difficulty associated with accessing those records. Although Mr. Schutte's request may implicate numerous records, such a "voluminous" request is not "necessarily unreasonably burdensome. " Absent evidence to the contrary, this office must assume that responsive records exist and are readily available within the agency. 7 Pursuant to KRS 61.872(1) and KRS 61.872(3)(a), the City is required to make available for public inspection all nonexempt public records in its custody during regular office hours, and to provide suitable facilities for the exercise of this right. "'[I]nspection of the records [Mr. Schutte] seeks. . . may require days, or perhaps weeks[,] but the process must be begun. Unreasonable restrictions upon inspection may not be imposed.'" 97-ORD-6, p. 5, citing OAG 89-81, p. 4.
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 A public agency such as the City is not statutorily required to honor requests for information as opposed to requests for specifically described public records; nor is a public agency obligated to compile a list or create a record to satisfy a request. See 05-ORD-006, a copy of which is attached hereto and incorporated by reference. Public agencies are required to make available for inspection, during normal office hours, records that may yield the information being sought. Id., pp. 7-8.
2 By directing Mr. Schutte to Schutzman Inspection Services, the City complied with KRS 61.872(4) as to those records its custody.
3 As the Attorney General has repeatedly observed, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 99-ORD-198; 98-ORD-200; OAG 91-112. On this issue, 05-ORD-193, a copy of which is attached hereto and incorporated by reference, is controlling.
4 In addressing such concerns, this office has consistently recognized that "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3 (reporter questioned validity of invoices produced in response to request, and Attorney General advised that relief sought was unavailable in this context); see also 04-OMD-182 (questions regarding authenticity of agency's meeting minutes not appropriate for review by Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to Open Records request, and Attorney General characterized the question as one that did not arise under the Open Records Act) ; 02-ORD-89 (recipient of public records questioned the quality and value of information contained in those records, and Attorney General declined to consider the issue). Likewise, this office is unable to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has been permitted, and those sought but not provided"; the role of this office is narrowly defined by KRS 61.880(2)(a). 03-ORD-61, p. 2, citing OAG 89-81, p. 3. In other words, such a "guarantee" is not required; a public agency complies with the Act by conducting a search governed by the standard articulated in 95-ORD-96, pp. 7-8.
5 To reiterate, complying with the procedural and substantive provisions of the Open Records Act is mandatory, and as much of a legal duty as the provision of other services to the public. 03-ORD-067, p. 2.
6 In 97-ORD-46, this office observed the following relative to the burden assumed by requesters seeking to receive copies of records by mail:
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. In construing KRS 61.872(2), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside Dictionary 926 (1988); "strictly defined' accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). 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.
Id., pp. 2, 3. As before, Mr. Schutte has expressed a willingness to inspect the records during the regular office hours of the City. Accordingly, our analysis focuses exclusively on whether Mr. Schutte has satisfied the lesser burden of identifying the requested records with "reasonable particularity. " Given our resolution of this dispositive issue, further discussion regarding the alternative means of access is unnecessary.
7 "The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p 4.