Request By:
David E. CrittendenY. Denise Payne Wade
Staff Attorney
Kentucky Real Estate Commission
10200 Linn Station, Suite 201
Louisville, KY 40223Lee B. Harris
General Counsel
Kentucky Real Estate Commission
10200 Linn Station, Suite 201
Louisville, KY 40223
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 Kentucky Real Estate Commission violated the Kentucky Open Records Act in denying the request of David E. Crittenden for "an opportunity to review all complaints, and file materials associated with those complaints, filed with the [Commission] within the last four years by Norman Brown," or, in the alternative, "an opportunity to review all complaints, and file materials associated with those complaints filed with the [Commission] within the last four years." Because the Commission has not adduced clear and convincing evidence that honoring Mr. Crittenden's request would be "unreasonably burdensome, " this office finds that its reliance on KRS 61.872(6) is misplaced.
On December 19, 2006, Mr. Crittenden requested "copies of all complaints filed with the Kentucky Real Estate Commission within the last three years regarding advertising materials and real estate agents." In addition, Mr. Crittenden requested "copies of any documents which outline the ultimate resolution of the above-referenced complaints." Having been informed by the Commission that cases are not tracked in that manner, Mr. Crittenden requested, by letter dated August 8, 2007, "an opportunity to review all complaints, and file materials associated with those complaints, filed with the Kentucky Real Estate Commission within the last four years by Norman Brown." In a letter dated August 17, 2007, Y. Denise Payne Wade, Staff Attorney, responded on behalf of the Commission, 1 advising Mr. Crittenden that the Commission "is unable to comply with your request because it places an unreasonable burden on Commission staff to produce the public records you seek. KRS 61.872(6). The Commission does not track the cases you seek, which are interspersed among more than 600 cases."
On August 21, 2007, Mr. Crittenden revised his request, "seeking an opportunity to review all complaints, and file materials associated with those complaints, filed with the Kentucky Real Estate Commission within the last four years." In a timely written response, Lee B. Harris, General Counsel, responded on behalf of the Commission, advising Mr. Crittenden that his new request "will almost quadruple the files you now seek to review." As explained by Ms. Harris, the Commission's staff "will be required to pull all these files, determine which ones are responsive to your request (which is a research project, not an Open Records Request), secure any proprietary or private information, such as Social Security Numbers, and then re-file all of the case files." In her view, this request "is also unduly burdensome and therefore cannot be met by the Commission or its staff. " Citing KRS 61.878(4) and noting the Commission has rejected "both specific and broad requests to review information," Mr. Crittenden initiated this appeal by letter dated August 28, 2007.
Upon receiving notification of Mr. Crittenden's appeal from this office, Ms. Harris elaborated upon the Commission's argument. 2 As Ms. Harris understands it, Mr. Crittenden's final request "would require Commission staff members to pull approximately 600 files and then to review those files to determine which ones are responsive to Mr. Crittenden's request." Commission staff would "then have to remove all proprietary, confidential and attorney-client privileged information from those files before Mr. Crittenden could review them." In the Commission's view, this request is "also a research project, as Commission staff would have to determine which cases were actually filed with the Commission." According to Ms. Harris, "whenever Mr. Crittenden has made an appropriate request, the Commission has timely and efficiently responded to that request." However, the Act "does not require the Commission's limited staff to do the research to determine which documents Mr. Crittenden has requested."
In reply, Mr. Crittenden argues that the KREC concedes the information he requested is contained in "documents available for public review." Yet, when he submitted a request targeting specific information, "the KREC refused to comply." When Mr. Crittenden "later requested an opportunity to review a broader category of documents with the aim of finding the documents" being sought himself, "the KREC also refused to comply. Accordingly, Mr. Crittenden questions "how one can gain access to these public documents." While locating those records which are potentially responsive and redacting any protected information might very well be somewhat burdensome, the record is devoid of "clear and convincing evidence" that honoring Mr. Crittenden's request would be unreasonably burdensome for the Commission. Having failed to satisfy its burden of proof relative to KRS 61.872(6), the Commission is required to make the records available to Mr. Crittenden for on-site inspection after making appropriate redactions.
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 .
(Emphasis added). 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." 3 Id., citing 96-ORD-155, pp. 3, 4. 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 emphasized by this office at page 4 of 00-ORD-72, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. "
Id., p. 3.
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 satisfying 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 Commission's denial of Mr. Crittenden's request. See also, 97-ORD-88 (affirming denial by Cabinet of Health Services on this basis); compare 05-ORD-024 (denial of request for all grievances filed since jailer assumed position was factually unsupported because the record 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).
In 95-ORD-2, 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. To support 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; this office reaches the same conclusion on the facts presented.
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." From our perspective, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. 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. With regard to the precision required in drafting a request, the Attorney General has repeatedly observed:
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.
99-ORD-140, p. 6; 01-ORD-51.
Although Mr. Crittenden's requests are somewhat broad and he does not "precisely describe" 4 the records at issue, those records are necessarily of an "identified, limited class," as evidenced by the record. In other words, Mr. Crittenden framed his request with "sufficient clarity" to enable the Commission's records custodian to identify and retrieve those records which are potentially responsive and has indicated a willingness to conduct on-site inspection of same; nothing more is required. Upon his satisfaction of this "precondition to inspection, " the burden of proof shifted to the Commission. See 00-ORD-72.
When denying Mr. Crittenden's initial request for "copies of all complaints filed" within the last three years "regarding advertising materials," and his amended request, which narrowed the scope by asking "to review all complaints . . . filed within the last four years by Norman Brown," the Commission did nothing more than cite KRS 61.872(6), make an unsupported claim that honoring the request would place an unreasonable burden on the agency, and indicate that it "does not track the cases" being sought, "which are interspersed among more than 600 cases." Reiterating this assertion, the Commission denied Mr. Crittenden's ultimate request for an opportunity to review "all complaints" filed within the last four years because it "will almost quadruple the files" implicated and the Commission would have to make necessary redactions prior to Mr. Crittenden's inspection. "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, Ms. Harris elaborates upon the Commission's position, but again relies exclusively upon the approximate number of records involved and the necessity of redacting unspecified "proprietary" and "confidential" information to establish the unreasonable burden allegedly placed on the agency. In the absence of more specific proof that honoring Mr. Crittenden's request as revised would be "unduly burdensome, " this office cannot uphold its denial on the basis of KRS 61.872(6). As in 06-ORD-177, the agency "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, that would support" its assertion. Id., p. 8. Some of the records at issue may be privileged or contain exempt information, but the fact that the Commission will have to "separate confidential documents from nonconfidential documents [cannot] serve as a basis for denying a request under KRS 61.872(6)." 00-ORD-180, p. 7. To the contrary, "the presence of some exempt information in the . . . [files] does not relieve the [Commission] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. If any public record contains material which is not excepted under KRS 61.878, "the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In sum, the "alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5; OAG 81-198.
Although Mr. Crittenden's request may implicate numerous records, such a "voluminous" request is not "necessarily unreasonably burdensome. " To hold otherwise would contravene the express mandate of KRS 61.8715, requiring public agencies to maintain records in such a way as to facilitate access. Pursuant to KRS 61.872(1) and KRS 61.872(3)(a), the Commission 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. 5 "'[I]nspection of the records [Mr. Crittenden] 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 Acknowledging that Mr. Crittenden's request was received on August 9, 2007, while she "was on vacation," Ms. Wade describes her letter as a "follow-up to General Counsel Lee Harris' August 13, 2007 e-mailed response." Insofar as the Commission initially failed to respond in writing to Mr. Crittenden's request dated August 8, 2007, within three business days, the Commission violated KRS 61.880(1). In the event that the official records custodian is absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). See also 96-ORD-185. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. 02-ORD-165, p. 3.
2 Despite feeling that Mr. Crittenden's initial request is properly characterized as a "research project, " rather than an Open Records request, "in an effort to be helpful, the Commission's counsel actually went above and beyond by looking for cases that dealt with the subject matter he sought and sending Mr. Crittenden information about those cases." Incidentally, Mr. Crittenden "could have located all of this information himself by a review of the newsletters on the Commission's website and by reading the Commission's textbook, which can also be found online." According to Mr. Crittenden, "the 'disciplinary actions' section of the KREC newsletter only lists brief summaries of complaints where the KREC determined that a violation had occurred. It does not identify advertising complaints received in which the KREC determined there were not violations." That is the "very information" Mr. Crittenden is most interested in reviewing. Also, "reviewing the brief summaries in the 'disciplinary actions' section of the KREC's newsletter is not [the] same [as] reviewing the documents sought." In this assertion, Mr. Crittenden is correct.
Regardless of whether the records are stored at another location or can also be accessed elsewhere (electronically or in hard copy form), a public agency "cannot avoid [the requirements of KRS 61.872(3)] by directing the requester to conduct his own search" online. See 95-ORD-52, p. 5 (concluding at pp. 1-2 that a public agency "must retrieve the records in order to make them available for inspection or copying, and that the [agency's] attempt to satisfy the Open Records Act by directing [the requester] to the King Library constituted a violation of the Act"). See also 05-ORD-277. As in the cited decisions, the Attorney General finds that such a practice is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3).
3 In 00-ORD-72, the Attorney General articulated the following standard by which to determine whether a request is framed with adequate specificity:
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.
4 In 97-ORD-46, this office observed the following relative to the burden imposed upon requesters asking 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. Here, Mr. Crittenden ultimately requested an opportunity to review the records during the regular office hours of the Commission. Accordingly, the question becomes whether Mr. Crittenden satisfied the lesser burden of identifying the requested records with "reasonable particularity"; he did in our view. Even assuming that his final request would otherwise be deemed too broad, further discussion regarding the alternative means of accessing the records is unnecessary.To clarify, the Commission would be permitted to require inspection prior to producing copies under KRS 61.872(3) since Mr. Crittenden's "principal place of business" appears to be in the same county where the records are located and he did not "precisely describe" the records. However, it was, and is, incumbent on the Commission "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records" he asks to inspect. 04-ORD-028, p. 10, citing 95-ORD-96, pp. 7-8.
5 Where a requester cannot identify the records being 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; 03-ORD-195.