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 Department of Revenue violated the Open Records Act in denying Mark F. Sommer's June 23, 2006, request to inspect "all documents or materials related to a sales tax collection agreement entered into by and between a certain group of large multistate retailers and several states, including the Commonwealth of Kentucky, in return for amnesty or waiver from previous tax period(s) potential states sales and use tax liability." (Emphasis in original.) For the reasons that follow, we find that the Department improperly denied Mr. Sommer's request.
In an attempt to explicate his June 23 request, Mr. Sommer indicated that the referenced "agreement provided, inter alia, that participating retailers would begin to collect and remit state sales tax on purchasers from on-line customers beginning on or about February 3, 2003," noting that the "participating retailers" are "the so-called 'bricks and clicks' retailers that maintain facilities within the state, but also maintain a separate on-line presence." By letter dated June 29, 2006, the Department denied Mr. Sommer's request through Attorney Manager Douglas M. Dowell. Citing 03-ORD-025 and OAG 89-3, the Department maintained that the request was "not sufficiently clear and specific to constitute a proper open records request." Moreover, the Department asserted, "it appears that [Mr. Sommer's] request would encompass confidential tax information exempt from disclosure under the Open Records Act. KRS 61.878(1)(a), (b), (i) and (l); 131.190; 131.081(15); 131.990(2); 139.710."
Shortly thereafter, Mr. Sommer submitted an "amended/renewed" request "for purposes of clarity and specificity, " attaching several articles that described the scope, nature, and extent of the document or documents sought. In addition, he requested access to:
Any document(s) or materials related to any agreement(s) (including voluntary disclosure agreement(s)) entered into by the Commonwealth of Kentucky and any retailer (s) during the period of September 1, 2002, through September 1, 2003, regarding sales and/or use tax collection and the amnesty, waiver, abatement, compromise, or settlement of sales and/or use tax for any or all prior periods which are similar to agreement(s) referenced in the attached articles.
It was Mr. Sommer's position that "the requested document(s) is unquestionably in the public domain. They are classic examples of public records as they constitute final agency action." Acknowledging that portions of the requested records might contain confidential taxpayer information, he urged the Department to "provide the document(s) with the identifying information (such as names or addresses) blacked out," thereby addressing the Department's concerns about disclosure of protected information.
The Department denied Mr. Sommer's amended request by letter dated July 19, 2006. On behalf of the Department, Mr. Dowell reiterated that the request was improper because it did not describe the information sought with sufficient specificity. Further, he observed:
The request is potentially unreasonably burdensome, as it could be construed to require the Department to search for and then review numerous documents to see if they meet its terms. There are many retailers subject to the Kentucky sales and use tax and with whom the Department (or Finance & Administration Cabinet) interacts in the administration of that tax. It would be an unreasonable burden to conduct a search of the potentially thousands of records relating to these taxpayers to ascertain the existence of agreements "similar to" those [the] request seems to seek and documents or materials "related to" those agreements, as well as to separate or redact from that material portions not subject to the Open Records Act.
In closing, Mr. Dowell again invoked KRS 61.878(1)(a), (b), (i), and (l), as well as KRS 131.190, 131.081(15), 131.990(2) , and 139.710, rejecting the inference that "the existence or contents of any agreements or related materials [are] matters of 'public record' for purposes of the exception to the confidentiality rule stated in KRS 131.190(l)." Because the Department fails to demonstrate that it "can[not] identify what documents the applicant[] wish[es] to see", or to "forecast what [its] actual burden will be" in fulfilling the applicant's request, Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005), 1 we cannot affirm its denial of Mr. Sommer's open records request.
With reference to the issue of the specificity of Mr. Sommer's request, we note that he asked to conduct an onsite inspection of the records identified in that request, rather than to obtain copies by mail. The degree of specificity in the description of records to which an individual requests access by means of onsite inspection has been the subject of a series of open records decisions recognizing that:
The Open Records Act . . .contemplates records access by one of two means: onsite inspection during the regular office hours of the agency in suitable facilities provided by the agency, or receipt of records from the agency through the mail.
97-ORD-46, p. 3.
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 onsite inspection, KRS 61.872(3)(b) requires the requester to "precisely describe[]" the records which he wishes to access by mail. In construing these provisions this office has observed:
The Open Records Act provides in part in KRS 61.872(1) that all public records, with certain exceptions, shall be open for public inspection. While persons will obviously acquire information from these records, the primary purpose of the Act is making records available for public inspection. The act does not require a public agency to provide information beyond that which is made available from permitting access to the public documents. Thus, if the agency is to provide access to public documents the person seeking to inspect those documents must identify them with sufficient clarity to enable the public agency to locate and make them available.
If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. OAG 84-342; OAG 89-8; 93-ORD-116; 94-ORD-12. The referenced decisions echoed the position which was first articulated by the Attorney General in OAG 76-375, and are premised on the notion that:
[Public] 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. It is . . . incumbent on a requester, in framing his request, to describe the records he seeks to inspect with reasonable particularity. If he does not, the agency is not obligated to conduct a search for the records.
95-ORD-108, p. 2, 3. Clearly, the Attorney General has gone to great lengths to define what constitutes an adequate "descri[ption]" for purposes of onsite inspection pursuant to KRS 61.872(2). We have also had occasion to articulate a standard for determining if a requester has described the records he wishes to access by mail with "precis[ion]".
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). This office has held 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. 97-ORD-46, p. 3, 4. Because Mr. Sommer asked to conduct an onsite inspection of the records, we assess the degree of specificity necessary under the KRS 61.872(2) standard, requiring a description that enables the agency's custodian to "identify what documents the applicant[] wish[es] to see . . . ." Chestnut at 4.
In the absence of convincing evidence to the contrary, we find that Mr. Sommer's request satisfies this standard. There request is limited by time (September 1, 2002, through September 1, 2003), and by a clearly defined subject area (the sales tax collection agreement entered into in February 2003, by Kentucky and retailers that maintain a physical and online presence in the state providing for the collection and remission of state sales tax in exchange for amnesty from previously incurred state sales and use tax liability). We find unpersuasive the Department's argument that the words employed in the description are not sufficiently specific or that the request is otherwise improper. The Department is no doubt in a position to determine which retailers maintain both a physical and an online presence in Kentucky, and should have in place a records management policy that provides a mechanism by which responsive records can be located. Accord, 04-ORD-028, p. 10. ("Although we do not speculate regarding the records management procedures adopted by [the agency], it stands to reason that a mechanism exists by which the [agency's] records custodian can locate and retrieve" records of an identified, limited class); see also, 06-ORD-032. (Revenue Department improperly denied, inter alia, request for training manuals and guides relating to unitary tax returns as an improperly framed request). Because Mr. Sommer's request was sufficiently specific to enable the Department's official custodian to "identify what documents [he] wish[es] to see," 2 it was, and is, incumbent on the Department "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records" Mr. Sommer asks to inspect. 04-ORD-028, p. 10, citing 95-ORD-96, p. 7, 8. The Department cannot evade this duty through its claim of an improperly framed and nonspecific request, but must expend reasonable efforts to identify, locate, redact, 3 and make available for inspection all existing nonexempt records that are responsive to Mr. Sommer's request.
Nor can the Department evade its duty through a claim of unreasonable burden, per KRS 61.872(6), without "forecast [ing] what its actual burden will be." Chestnut at 4. 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:
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. If an agency 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), noting that we did not mean to suggest that the Board "could not . . . build a successful case that . . . [a single request or series of requests] had become unreasonably burdensome, only that it had not done so in the appeal before us." 02-ORD-72, p. 6; see also 04-ORD-028; 04-ORD-013.
Clearly, the Revenue Department's burden of proof is not sustained by the bare allegation that Mr. Sommer's request is unreasonably burdensome. The record on appeal reflects the Department's view that "[i]t would be an unreasonable burden to conduct a search of the potentially thousands of records relating to these taxpayers to ascertain the existence of agreements 'similar to' those [the] request seems to seek and documents or materials 'related to' those agreements, as well as to separate or redact from that material portions not subject to the Open Records Act. " The Department provides us with no particulars as to the configuration of its records management system, and the commingling of exempt and nonexempt information within that system, 4 that would support these propositions. Because the Department offers no specific evidence of "what its actual burden would be," Chestnut at 4, we cannot affirm its disposition of Mr. Sommer's request. 5 Its bare assertion of an unreasonable burden, standing alone, is not sufficient to meet the clear and convincing standard of evidence found at KRS 61.872(6).
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 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 the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-0000 86).
2 Chestnut, at 4.
3 Mr. Sommer raises no objection to the redaction of confidential taxpayer information, acknowledging the Department's duty to protect said information under the cited provisions.
4 The Court of Appeals has noted, in an unpublished opinion, that an agency "has no right to deny access to nonexcepted documents simply because it mixes those documents with excepted documents." Revenue Cabinet v. F. Keith Brown, No. 96-CA-0843 MR (Ky. App. 1997).
5 The Department was afforded not one, but two, opportunities to forecast its actual burden, first in responding to Mr. Sommer's request, and second in responding to this office's Notification of Receipt of Mr. Sommer's appeal. The Department did not do so in its original denial and did not avail itself of the latter opportunity.