Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington Police Department violated the Open Records Act in partially denying Helen Henson's June 28, 2006, request for "'all' the offense/incident police reports and 'all' the associative supplemental sheets that go with it [sic] . . ." relating to twenty-one addresses identified in her request for the period from January 1, 2004, to June 28, 2006. For the reasons that follow, we find that the Department provided sufficient proof to support its claim that Ms. Henson's duplicative request was unreasonably burdensome and disruptive of its essential functions. Accordingly, we affirm its partial denial of Ms. Henson's request.
In a letter dated July 5, 2006, Captain Patrick Swift notified Ms. Henson that the Department had located 220 documents that were responsive to her request and that said records would be forwarded to her upon prepayment of reproduction and postage charges in the amount of $ 27.00. Additionally, Captain Swift advised:
Four offense reports are withheld as they were previously released to you in your request dated May 31, 2005 which requested all offense reports from August 1, 2004 to June 1, 2005 for 1929, 1941 and 1943 Augustine. In addition, two offense reports are withheld as they were previously released to you in your request dated June 14, 2004 requesting criminal mischief reports on June 3, 2004 in the names of Chris Henson (1939 Augustine) and Dora Eversole (1949 Augustine).
The Attorney General sated in 99-ORD-107:
Shortly thereafter, Ms. Henson initiated this appeal.
In her lengthy letter of appeal, Ms. Henson is highly critical of the manner in which her request was handled, questioning the Department's reliance on a seven year old open records decision instead of one or more of the exceptions codified at KRS 61.878(1)(a) through (n), and declaring that the Department is foreclosed from relying upon "current or past 'open records decisions,' 'circuit, appellette [sic], supreme court, or federal court decisions to justify their withholding of a nonexempt public record. '" 1 Ms. Henson disputes the Department's contention that fulfilling the duplicative portion of her request will unreasonably burden the Department, or otherwise disrupt its essential functions, inasmuch as that portion her request implicates only six to twelve documents, and "[i]t will take the same amount of time to copy 6-12 pages of previously records [sic] as it would different and new ones." She expressed the belief that as an employee of the Covington Police Department, Captain Swift's sole function is processing open records requests, and that it is therefore illogical to suggest that her requests can, or will, disrupt the Department's "other essential functions."
With reference to an earlier open records decision issued by this office, and involving these parties, Ms. Henson observes:
THE ATTORNEY GENERAL SAID IN ITS LAST OPEN RECORDS DECISION 2 ON "HELEN HENSON VS. COVINGTON POLICE" THAT I HAVE ASKED FOR "FULL" AND "COMPLETE" PHOTOCOPIES OF POLICE REPORTS AND HAVE "ONLY" GOTTEN THE FRONT SIDE OF A COMPUTER GENERATED REPORT, WITH NEVER ATTACHED ASSOCIATIVE DOCUMENTS. THIS IS THE MEANING OF "FULL" AND "COMPLETE" COPIES. THE ASSOCIATIVE DOCUMENTS WERE NEVER GIVEN TO ME, "EVER". THE ATTORNEY GENERAL RULED THAT I HAVE THE ABSOLUTE RIGHT TO "RESUBMIT" MY REQUESTS (THE SAME), IN ORDER TO RECEIVE THE REPORTS WITH THEIR ASSOCIATIVE DOCUMENTS.
It was her position that the Department "should have realized that there is a need for redisclosure of 'some' previously disclosed documents because the Department was (for a long time) refusing to give the associative documents that went with the front side of the police offense report." Noting that the "public records" belong to the public, of which she is a member, Ms. Henson concludes that the Covington Police Department "'needs to stop' looking for every last single way it can ever possibly withhold 'public' records from the 'public,'" and instead be guided by the fundamental mandate of the statute found at KRS 61.871. 3
In supplemental correspondence directed to this office following commencement of Ms. Henson's appeal, Covington City Solicitor Frank E. Warnock asserts that his review of the "multiple requests that the Hensons have made to the City of Covington over the years" makes it "abundantly clear that they use open records statutes as a method to annoy and harass the City of Covington and their requests are essentially meaningless, petty, and mean-spirited ways to attempt to cause problems for Covington city officials." In light of these "long-winded, detailed requests for meaningless information and documentation," and the express language found at KRS 61.872(6), Mr. Warnock seeks "guidance and common sense recommendation from [the Attorney General's] office to deal with this problem." Although we cannot provide the requested guidance, given our quasi-adjudicative role under KRS 61.880(2), we are hopeful that our decision will address the Department's concerns.
The provision upon which the Covington Police Department relies, KRS 61.872(6), states:
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 recognized:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records [or is intended to disrupt its essential functions] 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 - request to inspect "10,000 cases [is] certainly 'voluminous,'" but not necessarily unreasonably burdensome [or disruptive of an agency's essential functions].
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
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 (or a series of requests) 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. We have also recognized, however, 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." 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 an agency in effectively executing its public function.
96-ORD-155, p. 3, 4.
The statement of legislative intent codified at KRS 61.871 firmly establishes that the purpose and intent of the Open Records Act is to permit "free and open examination of public records. " KRS 61.871. 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. A cursory review of open records decisions analyzing the applicability of KRS 61.872(6) to specific fact patterns reflects a marked disparity in the extent to which public agencies assay to meet this statutory burden. In 05-ORD-024, for example, the Simpson County Jailer argued that a request for grievances filed since he assumed the office of jailer was unreasonably burdensome. Because the record on appeal was devoid of specific proof relative to the length of his tenure in office, the number of grievances implicated by the request, the difficulties in accessing those grievances, and any other problems associated with production, we held that the jailer's reliance on KRS 61.872(6) was factually unsupported, concluding that "[a] bare allegation that the request is unreasonably burdensome [or intended to disrupt essential functions] does not satisfy the requirements of the statute." 05-ORD-024, p. 5, citing 96-ORD-201; 96-ORD-193; 96-ORD-100; 98-ORD-87; 00-ORD-72.
Conversely, in 00-ORD-72 the Kentucky Board of Barbering submitted a loose leaf binder measuring approximately four and one-half inches in width, and documenting every written and telephone communication with the open records requester in a one and one-half year period, to support its position that a request for licensing records relating to a named licensee "place[d] an unreasonable burden on the agency to produce records, and [was] intended to disrupt its essential functions." Notwithstanding the lengths to which the Board went to meet its burden of proof, we again found insufficient proof under KRS 61.872(6), observing:
The Board's original denial of the January 24 request contained little more than an unsupported allegation of an unreasonable burden. The Board supplemented that denial upon receipt of this office's notification of appeal by furnishing us with a copious record documenting all exchanges, written and verbal, with the requester from July, 1998, to the present. Our review of that supplemental denial discloses that in a period of approximately twenty months, the Board received roughly thirty requests for records, some of which cannot technically be characterized as open records requests (for example, requests for copies of his license for which the Board charged him ten dollars, and requests for copies of "law books"). Thus, on average the Board received 1.5 open records requests per month.
While this represents the proverbial tip of the iceberg relative to the total number of exchanges, written and verbal, that occurred in the same period, we must restrict our analysis to the January 24 records application, and the roughly 29 requests that preceded it as a basis for establishing an unreasonable burden or an attempt to disrupt essential functions. While we agree that the tenor of these written and verbal exchanges is evidence of the animosity the requester bears toward the Board, we believe the most compelling evidence of an intent to disrupt is the proof presented of six duplicative requests. Ultimately, however, we do not believe that this constitutes sufficient empirical evidence to support a claim under KRS 61.872(6), where the record demonstrates a total of only thirty requests in twenty months.
00-ORD-72, p. 6. In a footnote, the Attorney General commented that on several occasions this office had concluded that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 00-ORD-72, p. 6, citing 99-ORD-107, p. 2 and 95-ORD-47, p. 6. We noted that we did not mean to suggest that Board "could not at some point build a successful case that . . . [the] requests have become unreasonably burdensome, only that it has not done so in the appeal before us." 02-ORD-72, p. 6; see also 04-ORD-028; 04-ORD-013. Citing 96-ORD-193, we concluded:
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 (emphasis added); accord, Department of Corrections v. Chestnut, Ky. App., 2004-CA-001497-MR (12/29/05) unpublished opinion holding that in invoking KRS 61.872(6), an agency must "forecast what its actual burden would be." 4
In the appeal before us, the Covington Police Department asserts that it would impose an unreasonable burden on it to honor Ms. Henson's duplicative requests for the same records, and that her actions suggest an intent to disrupt the Department's essential functions. The decisions referenced above are premised on the notion that "[t]o produce records once entails some inconvenience to the agency; to produce them three and four times requires a level of 'patience and long-suffering' that the legislature could not have intended." 95-ORD-47, p. 6, cited in 99-ORD-107. Thus, we have reasoned, "common sense dictates that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential function," and that unless a requester can explain the necessity of reproducing the same records twice, an agency is not required to satisfy the same request a second time.
Ms. Henson explains that "upon reviewing all of [sic] collected archived records that will be used in conjunction with the newly requested records to begin the investigative research into the crime and disturbing happenings in this neighborhood, . . . it was discovered that the records that Captain Swift is illegally withholding are missing[, and] we cannot locate those very needed records anywhere." In referencing 06-ORD-045, Ms. Henson further notes that this office recognized her right to resubmit her requests to obtain the records identified in that request in light of the Department's failure to produce all responsive records.
This office did not, however, recognize Ms. Henson's right to resubmit all prior open records requests. Instead, we expressly limited our holding to requests for offense reports generated after the Covington Police Department modified the offense report form by "creat[ing] a separate 'Investigation Report' rather than utilizing the back of the existing offense report or a continuation page for investigative information." 06-ORD-045, p. 2. This modification in reporting practices occurred in the period between April 2005 and December 2005. The disputed offense reports were generated in the period from June 2004 to June 2005. With the exception of a scant two month overlap, all of the reports were generated before the modification in reporting practices, and 06-ORD-045 cannot be said to apply to them. Accordingly, the Attorney General has not "ruled that [she] ha[s] the absolute right to 'resubmit' [her] requests . . . in order to receive the reports with their associative documents." In view of this fact, and the absence of any legitimate justification for resubmission of a duplicative request other than her own records mismanagement, we find that the Department properly denied that portion of her request as an unreasonable burden, notwithstanding her assumption that it implicated only six to twelve documents and that the Department employee assigned to process open records requests has "'no' other duties to perform." In so holding, we remind Ms. Henson that the named employee is "the servant [] of all the people and not only of persons who may make extreme and unreasonable demands on [his and the Department's] time." OAG 76-375, p. 4.
We leave for another day the question of whether Ms. Henson's repeated, albeit nonduplicative, requests, along with those of her son, Chris, over a period of time extending back to 2001, justify invocation of KRS 61.872(6) with respect to future requests. As we noted in 02-ORD-82, "objective indicia exist to establish an identity of purpose between Chris Henson . . . and Helen Henson." It is, as noted above, for the Covington Police Department to build a case, by clear and convincing evidence, that the series of open records requests submitted by Helen and Chris Henson over a period of years dating back to 2001 has imposed an unreasonable burden on that agency.
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.
Helen Henson1939 Augustine AvenueCovington, KY 41014
Captain Patrick SwiftCovington Police Department1 Police Memorial DriveCovington, KY 41014
Frank WarnockCovington City Attorney638 Madison AvenueCovington, KY 41011
Footnotes
Footnotes
1 If Ms. Henson attaches so little precedential value to an Attorney General's open records decision, we question why she expends so much effort in bringing open records appeals to this office, and suggest that she consider other legal avenues for pursuing her claims.
2 There is a certain irony in Ms. Henson's reliance on the referenced open records decision, given her apparent disdain for other decisions issued by this office. See footnote 1, above.
3 KRS 61.871 provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
4 Although Department of Corrections v. Chestnut 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 latter published opinion addressing agency invocation of KRS 61.872(6).