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 Kenton County Board of Education violated the Open Records Act in the disposition of Gailen W. Bridges' July 17, 2007, request to inspect eleven categories of records relating to Board employees, 1 Board members, 2 the Board's attorney, 3 and various operational matters. 4 For the reasons that follow, we find that the Board's denial of Mr. Bridges' request is contrary to the Court of Appeals' published opinion in 41 S.W.3d 860 (Ky. App. 2001), and therefore violated the Open Records Act.
In a response dated July 23, 2007, Jeremy J. Deters notified Mr. Bridges that his requests "violate[] both KRS 61.872(6) and, more importantly, KRS 61.878(1)." Mr. Deters explained:
[R]equests 1, 2, 3, 4, 5, 8, and 11 are too broad and unspecific. The remaining requests are an attempt to circumvent the rules of civil procedure, which is forbidden by KRS 61.878(1) . Request 6 is clearly a repetitive request which may be refused according to KRS 61.872(6).
There are currently three cases pending between the Board of Education and you, your wife, and one of your companies. In at least one of those cases, motions relating to discovery are pending before Judge Jaeger. Given the subject matter of these requests, it is obvious that this records request is an attempt to circumvent the rules of civil procedure governing pretrial discovery.
In closing, Mr. Deters asserted that on these bases he had "advised [his] client to refuse the requests."
Shortly thereafter, Mr. Bridges initiated this appeal, acknowledging the existence of three lawsuits filed by the Board "against [his] property under eminent domain," and questioning "how a citizen who is sued by the Board of Education for [his] property . . . loses [his] right to file requests under the Open Records Act. " Noting that, in general, employment contracts, records documenting the expenditure of public funds, and portions of personnel files are subject to public inspection, Mr. Bridges concluded that the Board of Education did "not rely on any exceptions . . ., [did] not claim anything to be privileged, private, or preliminary," and erroneously relied on KRS 61.878(1).
In supplemental correspondence directed to this office following commencement of Mr. Bridges' appeal, Mr. Deters amplified on the Board's position noting that discovery in one of the referenced condemnation suits "has led to several objections to interrogatories and corresponding motions to compel." In particular, he commented, Mr. Bridges has requested the personnel records of Board employees, the Board has objected to the request, and the Kenton Circuit Court "has taken the matter for ruling." Moreover, Mr. Deters observed, "at least five requests . . . have already been dealt with in prior open records requests," are "broad and/or unspecific," intended "to be harassing, disruptive, and a circumvention of the rules of civil procedure, " and have prompted the Board to file a motion for a protective order in the circuit court. Included in the Board's response were a November 2, 2006, request from Mr. Bridges seeking access to, inter alia, physical and electronic correspondence sent to or received by the Board employees, the Board's attorneys, and the Board members and a November 7, 2006, request seeking access to similar, but more narrowly defined, 5 records. Not included in the Board's response were its written responses to these requests.
In a reply to the Board's supplemental response, Mr. Bridges notified this office that on August 21, 2007, the Kenton Circuit Court ruled on the various motions before it, including the Board's Motion for Protection Order, providing us with a copy of that order. Because the statutory scheme in the filing of the Commissioner's Report was not followed, necessitating the reappointment of the Commissioners, the court held all discovery in abeyance pending receipt of a new Commissioner's Report. The court determined that it was "without jurisdiction to issue a Protective Order regarding the information sought by the Defendant pursuant to KRS 61.870 to 61.884, " and that Mr. Bridges' "open records request is outside the scope of this litigation. " Mr. Bridges provided us with a copy of the Board's terse response to his November 2 request, permitting him access to only one of six of the requested categories of records sought, and acknowledged that "[t]he narrower requests of November 7, 2006, were answered, but they were not really similar to the pending requests." 6
Having considered these arguments, we believe that the court properly declined jurisdiction in the open records dispute between Mr. Bridges and the Board based on clearly established legal authority, that the Board's reliance on KRS 61.878(1) was misplaced, and that the Board ultimately failed to meet its statutorily assigned burden of proof in denying Mr. Bridges' request on the basis of overbreadth, nonspecificity, or an intent to harass.
Fundamental to the Board's position is the language found at KRS 61.878(1) which states:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.
(Emphasis added.) The Board asserts that Mr. Bridges' open records requests represent an attempt to circumvent the rules of civil procedure in contravention of the referenced provision. This position has been rejected by both the courts and the
Attorney General. Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860 (Ky. App. 2001) is dispositive of this issue. Agreeing with those Attorney General's opinions recognizing that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," the court quoted from OAG 89-65 in which this office opined:
Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein is suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3, cited in Stewart at 864. In interpreting KRS 61.878(1), the court reasoned:
That statute does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the rules of Civil Procedure governing pretrial discovery.
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 863 (2001) (emphasis in original). Reaffirming the principle that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next," 7 and quoting from Attorney General's decisions holding that "[a]lthough there is litigation in the background of the open records request . . ., the requester . . . stands in relationship to the agency under the Open Records Law as any other person," 8 the court refused to interpret KRS 61.878(1) in such "an absurd and unreasonable" way as to allow a nonparty's right of access while disallowing a party's right of access. Thus, Mr. Bridges "stands in relationship to" the Board of Education under the Open Records Law as any other person. Accord, 04-ORD-058; 04-ORD-208; 07-ORD-057. He is not foreclosed from accessing public records through the Open Records Act, notwithstanding the fact that he is a litigant in a case involving the Board, and our analysis proceeds accordingly.
With reference to the issue of the specificity of Mr. Bridges' 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 a greater 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:
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.
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. Bridges 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 . . . ." Department of Corrections v. Chestnut, 2004-CA-1497-MR (Ky. App. 2005). 9
In the absence of convincing evidence to the contrary, we find that Mr. Bridges' request satisfies this standard. The request is limited by time (June 1, 2005, to July 17, 2007), and by identified public employees or officials and/or records content. 10 As Mr. Bridges correctly notes, the Board does not invoke a statutory exception limiting access to these records, 11 assert that they were properly destroyed in the normal course of business per Records Series L4955, 12 L4956, 13 or L5866, 14 or describe any particular difficulties relative to the recovery and/or production of the records. Because Mr. Bridges' request was sufficiently specific to enable the Board's official custodian to "identify what documents [he] wish[es] to see," 15 it was, and is, incumbent on the Board "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records" Mr. Bridges asks to inspect. 04-ORD-028, p. 10, citing 95-ORD-96, p. 7, 8. The Board cannot evade this duty through its claim of an improperly framed and nonspecific request, but must expend reasonable efforts to identify, locate, and make available for inspection all existing nonexempt records that are responsive to Mr. Bridges' request.
Nor, in our view, can the Board avoid its duty under the Open Records Act by asserting that Mr. Bridges' requests are "harassing" or "disruptive" in the absence of specific proof that he has previously been afforded access to the precise records identified in his July 17 request. In characterizing Mr. Bridges' request as such, the Board relies on KRS 61.872(6) which 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.
(Emphasis added.) In an early open records opinion this office was asked to determine whether repeated requests submitted by an individual to a school district in a five month period constituted an intent to disrupt the district's essential functions, within the meaning of KRS 61.872(6). The Attorney General concluded that they did not, opining:
Repeated requests to inspect the 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. In a later decision this office reached the same conclusion with respect to fifteen requests submitted to the Transportation Cabinet by an individual in a six day period. OAG 89-79. Anticipating ten more requests, the Cabinet resisted disclosure expressing concern that the records might be used in a subsequent legal action against the Cabinet and that the number, detail, and nature of the requests suggested an intent to disrupt its essential functions. The Attorney General concluded that the Cabinet's reliance on KRS 61.872(6) was improper, expressly rejecting that part of the argument that was postulated on the use to which the records would be put. Accord, 93-ORD-72; 94-ORD-86; see also, 00-ORD-72; 05-ORD-067. Recognizing that "[a]lthough 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)," the Attorney General nevertheless concluded in each instance that the public agency had not successfully built its case. 96-ORD-193, p. 5.
We reach the same conclusion in the appeal now before us. The only distinguishing factor in the instant appeal is that some of Mr. Bridges' requests may have been duplicative. On this issue, the Attorney General has held that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-21 this office observed:
Id. The record on appeal is devoid of specific proof that Mr. Bridges has previously obtained the precise records identified in his July 17 open records request, or that the July 17 request, or any earlier request disrupted the Board's essential functions. Accordingly, we find that the Board violated the Open Records Act in refusing to honor Mr. Bridges' request on the basis of 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.
Gailen Bridges
Tim Hanner
Jeremy J. Deters
Footnotes
Footnotes
1 Mr. Bridges requested access to their personnel files, employment contracts, expense and travel vouchers of four named employees and electronic correspondence sent, received, or deleted by three of the four employees in the period from June 1, 2005, to July 17, 2007.
2 Mr. Bridges requested access to electronic correspondence sent, received, and deleted by the Board members in their official capacities for the period from June 1, 2005, to July 17, 2007.
3 Mr. Bridges requested access to electronic correspondence sent, received, or deleted by attorneys representing the Board for the period from June 1, 2005, to July 17, 2007.
4 Mr. Bridges requested access to lease agreements with the Sanitation District "regarding leasing of space on Eaton Drive," the contract with the architect "regarding the most recent work at Simon Kenton High School," and the budget for the superintendent's office expenditures.
5 That request was limited to correspondence relating to "facilities or the expansion of facilities at Simon Kenton High School, and anything concerning surrounding property."
6 Both parties devote considerable attention to the timeliness of the Board's July 23, 2007, faxed response to Mr. Bridges' July 17, 2007, faxed request. Mr. Bridges suggests that the Board forfeited its standing to contest the issues raised given the apparent untimeliness of its response. In a line of decisions beginning with 96-ORD-207, the Attorney General recognized that the computation of time statute found at KRS 446.030(1)(a), stating that in computing any period of time prescribed by order of court or applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included, is applicable to the three day period for response under the Open Records Act. Under this line of reasoning, the Board's response time commenced on July 18, and its July 23 response was one day late. Although its failure to issue a written response within three business days constituted a violation of KRS 61.880(1), we are aware of no authority supporting Mr. Bridges' view that the Board forfeited its standing to contest the issues raised by virtue of this procedural violation.
7 Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
8 OAG 82-169, p. 2.
9 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).
10 Clearly, a request for personnel files satisfies the specificity requirements (see 03-ORD-012), as, in our view, does a request for expense vouchers (see 95-ORD-18), and a request for financial and operational records such as leases, contracts, and budgets (see 00-ORD-133).
11 See, e.g., Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006).
12 L4955 provides for a two year retention period for general correspondence as described in the Local Government General Records Retention Schedule.
13 L4956 provides for an indefinite retention period, but destroy when no longer useful, for informational and reference material as described in the Local Government General Records Retention Schedule.
14 L5866 provides for the immediate destruction of nonbusiness related correspondence as described in the Local Government General Records Retention Schedule.
15 Chestnut, at 4.