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 Environmental and Public Protection Cabinet - Department of Labor violated the Kentucky Open Records Act in denying the request of Brent R. Baughman's colleague, Lori Barker Sullivan, for "copies of notices of violation and/or tentative findings of fact issued in which the Kentucky Department of Labor or the Kentucky Labor Cabinet has alleged that wages were due for walking activity." In failing to issue a written response within three business days, including a statement of the specific exception authorizing the denial, and a brief explanation of how the exception applies to the records withheld, the Department violated KRS 61.880(1). Although Mr. Baughman's residence and/or principal place of business is outside the county in which the records are located, which satisfies the first requirement of KRS 61.872(3)(b), his request does not precisely describe the records being sought, nor are the records "readily available within the public agency. " That being the case, Mr. Baughman is not entitled to receive copies of the records by mail prior to inspection; however, the Department is required to make potentially responsive records available for his inspection during regular office hours in accordance with KRS 61.872(3)(a) and prior decisions of this office.
On June 6, 2006, Margaret Goodlett Miles, Paralegal, Labor Legal Division, responded to Ms. Sullivan's request of May 25, 2006, on behalf of the Department, advising Ms. Sullivan that the information requested cannot "be retrieved as violations are not indexed in this manner" without further elaboration. Arguing that her response violates KRS 61.880(1), Mr. Baughman initiated this appeal by letter dated July 6, 2006. As correctly observed by Mr. Baughman:
There is a statutory presumption that all public records are open for inspection unless they fall within a category specifically exempted by KRS 61.878. KRS 61.872(1). The Division has not cited to any provisions exempting the disclosure of the requested documents, and there appear to be none which would apply to the instant request. Moreover, to the extent that the Division may now claim that the request has "place[d] an unreasonable burden on providing public records . . .," the Division's cursory refusal to provide the records, or to explain its efforts - if any - to locate such records, utterly fails to meet the "clear and convincing evidence" standard required to sustain such refusal. KRS 61.872(6).
Upon receiving notification of Mr. Baughman's appeal from this office, Ms. Miles supplemented her response as follows:
The Department receives about [] three thousand complaints a year regarding wages due. These records are normally kept for five years. The complaints cannot be electronically search[ed] for by "keywords." The records requested [cannot] be retrieved without manually pulling and reviewing each one of these thousands of files for a claim of "walking. " This would require a [full-time] staff person for approximately a month to work on this request.
In addressing the Department's "alleged difficulty in searching for the requested records," Mr. Baughman argues, in relevant part, as follows:
. The DOL's latest response mischaracterizes the open records request at issue. We did not request "complaints" alleging wages due for walking time; we asked for copies of notices of violation and/or tentative findings of fact issued by the DOL or its predecessor, the Kentucky Labor Cabinet. These are documents which the DOL prepared and which should be readily available through some form of word processing search. Presumably, a search of these internally produced documents will be less onerous and far fewer in number than the 3000 complaints the DOC claims have been received each year. 1
. The starting point in any open records analysis is that public records "shall be open for inspection, " KRS 61.872(1), and "that free and open examination is in the public interest," unless subject to some specific statutory exception. KRS 61.871. Having failed to invoke such an exception to disclosure, the DOL instead seeks to avoid any compliance with our request by citing the alleged inconvenience of such a search. Of course, "inconvenience" is not enough to avoid disclosure, KRS 61.891, and the DOL must instead establish, through "clear and convincing evidence, " that the request places upon it "an unreasonable burden. " KRS 61.872(6). As noted in our July 6, 2006, appeal, the DOL's original response made no effort to comply with this statutory requirement.
. That the DOL should have the capability to do a search is not simply our expectation; it is the expectation of the General Assembly. In order "to ensure the efficient administration of government and to provide accountability of government activities," the "General Assembly finds an essential relationship between the interest of" the Open Records Law and "KRS 171.410 to 171.740, dealing with the management of public records" and other statutes "dealing with the coordination of strategic planning for computerized information systems in the state government." KRS 61.8715. The General Assembly thus contemplates, and expects, government agencies such as the DOL to be able to locate their own, internally prepared, documents. The DOL's claimed inability to access such documents does not speak well to its ability to consistently apply and enforce the very laws under its watch.
While Mr. Baughman is correct in his interpretation of the cited statutory provisions, his argument is based upon a faulty premise, namely, that Ms. Sullivan's request "precisely describes" the records as required to receive copies through the mail. Because the request does not satisfy this prerequisite, the records identified in the request are not "readily available" in the Department within the meaning of KRS 61.872(3)(b); the Department is nevertheless required to make any existing records that are potentially responsive available for inspection during regular office hours in lieu of mailing copies. To hold otherwise would contravene governing precedent.
As a public agency, the Department is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106. Here, the Department did not respond to Ms. Sullivan's request of May 25, 2006, until June 6, 2006; 3 the Department has not offered any explanation for the delay.
By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). Although the burden on the agency to respond within three working days is not infrequently an onerous one, the only exceptions to this general rule are codified at KRS 61.872(4), (5), and (6), 4 none of which the Department invoked here. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7.
Noticeably absent from the Department's initial response are both mandatory elements - the applicable statutory exception and brief explanation of how it applies to the records withheld. 5 A public agency must cite the applicable exception, and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.882(2)(a). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
By failing to comply with the mandatory terms of KRS 61.880(1), the Department violated the Open Records Act; the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. To avoid future violations, the Department should respond in writing to requests, within three business days, including a statement of the specific exception(s) authorizing the withholding of any responsive records, and a brief explanation of how the exception(s) applies to the records withheld; in the alternative, the Department is required to provide a detailed explanation of the cause for delay, and designate the place, time, and earliest date on which the records will be available for inspection in accordance with KRS 61.872(5).
In 99-ORD-63, this office was asked to determine whether the Breathitt County Clerk had violated the Act in refusing to honor a request for "any and all coal leases" containing specified name variations. Although the Clerk erred in failing to cite the applicable statutory exception, this office affirmed his disposition of the request since the requester had not satisfied the requirements of KRS 61.872(3)(b) and, therefore, was not entitled to receive copies of public records by mail. Id., p. 3; such is the case here. Pursuant to KRS 61.872(3)(b):
(1) A person may inspect the public records:
In other words, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. Therefore, a requester that 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. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the 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." Id., p. 5; 04-ORD-011.
Based upon the evidence of record, this office presumes that Mr. Baughman resides and works (both Mr. Baughman and Ms. Sullivan are employed at Greenebaum Doll & McDonald PLLC) in Louisville, Kentucky; the requested records are located in Frankfort, Kentucky. Accordingly, Ms. Sullivan/Mr. Baughman satisfies the threshold requirement of KRS 61.872(3)(b). Before Mr. Baughman is entitled to receive copies of the records, he must "precisely describe[]" the records, and they must be "readily available within the public agency. " 6 As consistently recognized by this office:
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(3)(b), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University 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.
. . .
The third requirement (that the records be "readily available within the public agency" ) 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.
99-ORD-63, p. 3, 4; 97-ORD-46; 97-ORD-177; 01-ORD-225; 01-ORD-185; 03-ORD-195; 05-ORD-152. In 97-ORD-46, the Attorney General noted that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." Id., p. 5.
As in 99-ORD-63, 01-ORD-185, 3-ORD-195, and 05-ORD-152, the requester has failed to describe the records he/she wishes to access by receipt of copies through the mail in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, the records cannot accurately be described as "readily available" within the Department. On appeal, the Department has established the approximate number of records implicated by the request, the difficulties associated with accessing potentially responsive records, and the estimated manpower required to identify, locate, and retrieve the records; the records could not properly be characterized as readily available, in our view, even assuming same had been precisely described. That being the case, the Department may require Mr. Baughman to conduct an on-site inspection of the records prior to furnishing him with copies; the Department may not deny the request entirely. Where a requester cannot identify the records sought with precision, or wishes to extract information that has not already been compiled, he must be permitted to "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.
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.
Brent R. BaughmanGreenebaum Doll & McDonald PLLC3500 National City Tower101 South Fifth StreetLouisville, KY 40202-3197
Margaret Goodlett MilesParalegalEnvironmental and Public Protection CabinetOffice of Legal ServicesLabor Legal Division1047 U.S. 127 SouthFrankfort, KY 40601
Footnotes
Footnotes
1 See 95-ORD-96, pp. 7-8, for the standard by which the adequacy of a search conducted by a public agency is judged.
2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
3 Even allowing time for delivery, excluding weekends, and the holiday on Monday, May 29, 2006, the Department responded outside the permissible timeframe of three business days.
4 If the person to whom the request is directed does not have "custody or control" of the records, he or she is obligated to notify the requester and furnish the name and location of the custodial agency per KRS 61.872(4). If the records requested are "in active use, in storage or not otherwise available," the official custodian must immediately notify the requester, and specify a place as well as the earliest date and time on which the records will be available for inspection to invoke KRS 61.872(5). If complying with the request will place an unreasonable burden on the agency, or the custodian believes that repeated requests are intended to disrupt essential functions of the agency, he or she may refuse to permit inspection or mail copies of the records pursuant to KRS 61.872(6); such a refusal must be sustained by clear and convincing evidence.
5 Although the Department attempted to cure the latter deficiency on appeal, a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant a denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the original denial.
Given our resolution of the issue relative to application of KRS 61.872(3)(b), a determination regarding the propriety of the Department's belated and implicit reliance upon KRS 61.872(6) is unnecessary. See 04-ORD-028, pp. 4-10, for the analysis employed by this office in determining whether an agency has satisfied the intentionally high standard of KRS 61.872(6) in denying access.
6 Although the request at issue is broad, and does not "precisely describe" the records being sought, the records are necessarily of an "identified, limited class," as further evidenced by the Department's assertion that it receives about 3,000 complaints each year that are maintained for five years. In other words, the request is framed with "sufficient clarity" to enable the Department's records custodian to identify and retrieve potentially responsive records; nothing more is required. Upon satisfaction of this precondition to inspection, the burden of proof shifted to the Department. 04-ORD-028, p. 9.