Request By:
Vyron MitchellKim Wiggins
Trigg E-911 Director
Trigg County Emergency Services
P.O. Box 672
Cadiz, KY 42211H. B. Quinn
Trigg County Attorney
P.O. Box 1549
14 Court Place
Cadiz, KY 42211-1549
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Trigg County Emergency Services violated the Kentucky Open Records Act in denying the request submitted by Vyron Mitchell, General Manager of The Cadiz Record , "for an opportunity to inspect and copy records - during normal business hours - pertaining to calls/officers/departments dispatched to Barkley Manor Apartments, located in the general vicinity on West End Street between 3rd Street on the south and the Cadiz Police Department Substation on the north[,]" including "any and all apartment numbers that may be located in the above referenced apartments" from the "period between May 1, 2007 and September 21, 2007." Because TCES has not established by clear and convincing evidence that honoring Mr. Mitchell's request for an opportunity to inspect existing records which are potentially responsive to his request would be unreasonably burdensome, this office concludes, based on governing precedents, that TCES improperly relied upon KRS 61.872(6) in denying his request, albeit in good faith.
By letter directed to Kim Wiggins, Trigg E-911 Director, on September 25, 2007, Mr. Mitchell submitted his original written request "for the dates, times and department (Trigg County Sheriff's Department or Cadiz Police Department) for calls/officers dispatched to West End Apartments, West End Avenue, Cadiz, Ky." during the specified time frame. In a timely written response, Ms. Wiggins advised Mr. Mitchell that "the area, West End Apartments, and the roadway indicated, West End Avenue, do not exists [sic] in the City of Cadiz nor in Trigg County"; accordingly, she was "unable to produce any information at this time." On September 30, 2007, Mr. Mitchell submitted a revised request "for the dates, times and department (Trigg County Sheriff's Department or Cadiz Police Department) for calls/officers dispatched to Barkley Manor Apartments, located in the general vicinity on West End Street between 3rd Street on the south and the Cadiz Police Department Substation on the north." Further, the request covered the same period of time and included "any and all apartment numbers that may be located in the above referenced apartments. "
By letter dated October 3, 2007, H. B. Quinn, Trigg County Attorney, responded on behalf of TCES, advising that Mr. Mitchell was "not specifically asking for records." Instead, Mr. Mitchell was "asking for information as to the dates, times, departments, and officers that were dispatched to Barkley Manor Apartments. " As correctly observed by Mr. Mitchell, "the Attorney General's Office has long recognized that [a] request for information, as opposed to [a] request for a specifically described public records [sic], need not be honored. See OAG 76-375. Open records provisions address only inspection of records." Public agencies are not required to "compile specific information to conform to the parameters of a given request. OAG 89-77." Accordingly, TCES denied Mr. Mitchell's request. In closing, Mr. Quinn further indicated that, "as suggested by the Attorney General's Office, we can certainly attempt to" honor a request for specifically described public records. "It might help the dispatch director and myself if you could specifically state what records you are seeking." Based upon Mr. Mitchell's request as framed, Mr. Quinn advised "there are approximately 1845 documents involved." At "$ .25 a page, that is a substantial sum of money for the paper to pay." 1
In response, Mr. Mitchell rephrased his request and sought an "opportunity to inspect and copy [the previously described] records." 2 By letter dated October 29, 2007, 3 Mr. Quinn denied Mr. Mitchell's request as "unreasonably burdensome" after discussion with Chief Alexander and Ms. Wiggins, both of whom "estimated there are over 1,800 pages of information that would have to be perused prior" to his inspection. As noted by Mr. Quinn, they believe it would take "7 to 10 working days" to complete this process "and, therefore, that it is unreasonably burdensome to provide these records." 4 By letter dated November 6, 2007, Mr. Mitchell initiated this appeal on behalf of The Cadiz Record .
Upon receiving notification of Mr. Mitchell's appeal from this office, Mr. Quinn elaborated upon his client's position, in relevant part, as follows:
The records requested are handwritten logs. Pursuant to regulations, the 911-Director is the only person authorized to review those records. According to the Director, this request would require her to review 1,800 pages of handwritten logs to identify information that is mandatorily confidential. Further, after the review, the Director would then have to redact any confidential information and then provide copies of the records to [ The Cadiz Record ].
The [C]hairman of the Emergency Services Board and the Director have estimated it would take 7 to 10 working days (8 hours per day) to review this volume of logs and to redact the information. It would also require the Director an additional amount of time to copy the requested documents for [ The Cadiz Record ].
In reviewing previous [Open Records Decisions], there does not appear to be any particular guideline as to what constitutes an unreasonable request. However, it seems reasonable that to require any public agency to devote this much time and expense to provide these records is an unreasonable request.
Based upon the foregoing, Mr. Quinn asserts that TCES has sustained its denial by clear and convincing evidence as required to successfully invoke KRS 61.872(6). Although TCES appears to have acted in good faith, and the facts of this appeal present a close question, this office must respectfully disagree. 5
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.
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." Id., citing 96-ORD-155, pp. 3, 4.
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.
Id., p. 3.
Only if the agency has adduced clear and convincing evidence to support a finding that the burden is indeed unreasonable, will the Attorney General then uphold its action. See 00-ORD-180; 00-ORD-72. As this office emphasized at page 4 of 00-ORD-72, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " Said another way, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79.
In OAG 89-88, the Attorney General held that the Department of Insurance had sustained this burden by indicating that the requested records consisted of around 800 documents and explaining the difficulty of separating the confidential material from the nonconfidential material. Similarly, 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 attempting to satisfy 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 denial of Mr. Mitchell's request. See also, 97-ORD-88 (affirming denial by Cabinet of Health Services on this basis). In contrast, 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, in 95-ORD-2. In support of 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.'" Id., p. 2. As further argued by the Cabinet, manually retrieving and examining these files would be time consuming, unduly burdensome, and disruptive of its essential functions. Id. 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. Id. 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. Id., p. 3. See also 99-ORD-4 (holding that proof of four requests in a four and one-half week period did not constitute an unreasonable burden or establish intent to disrupt essential agency functions).
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." In our view, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. Likewise, a request to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002," was narrow enough to meet this standard. 04-ORD-028, p. 8. Such is the case here. 6
By requesting to inspect dispatch records concerning "calls/officers/departments dispatched to Barkley Manor Apartments, located in the general vicinity on West End Street between 3rd Street on the south and the Cadiz Police Department Substation on the north" during the limited time frame of May 1, 2007 and September 21, 2007, Mr. Mitchell narrowed the scope of his request enough to enable TCES to identify and locate potentially responsive records; the response of TCES verifies that conclusion. When denying Mr. Mitchell's request initially, TCES merely estimated that "1,800 pages of information" would have to be "perused prior to . . . inspection" which, according to Chief Alexander and Ms. Wiggins, would take "7 to 10 working days." Standing alone, neither this volume of records nor the amount of time required to redact information constitutes an unreasonable burden. Although TCES elaborates upon this assertion to a limited extent on appeal, TCES again fails to specify which items of information are "mandatorily confidential, " if any; likewise, TCES does not specify any federal or state law pursuant to which portions of the records implicated must be redacted. Also lacking is any explanation of how or why the records are maintained in such a way as tonecessitate such great lengths in order to separate allegedly protected material.<<7> 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.
Although some of the records requested by Mr. Mitchell may be privileged or contain exempt information, the fact that TCES 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 . . . reports does not relieve the [TCES] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. Pursuant to KRS 61.878(4): "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." As recognized by the Attorney General:
If the reports which [the applicant] requests access to contain both exempt and nonexempt information, the department may delete the exempt information, after stating, in writing, the statutory basis for withholding that information. As we observed at page 3 of OAG 89-76:
Stated alternatively, "The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4.
97-ORD-6, p. 4-5. In our view, the reasoning contained in 05-ORD-172, involving a request for "[a]ll lab reports produced by the Kentucky State Police's Region 5 Lab in London, Kentucky from January 1, 1986 through December 31, 1989," is equally controlling on the sufficiently analogous facts presented; a copy of that decision is attached hereto and incorporated by reference.
Having failed to satisfy its burden of proof under KRS 61.880(2)(c), TCES is required by KRS 61.872(1) and KRS 61.872(3)(a) to make available for public inspection all nonexempt public records in its custody during its regular office hours, and to provide suitable facilities in which Mr. Mitchell can exercise his right of inspection. "'[I]nspection of the records [Mr. Mitchell] 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 an 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 In Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), the Kentucky Court of Appeals held that ten cents per page is a reasonable copying charge under the Open Records Act. For this reason, the Attorney General has consistently held that unless a public agency can substantiate that its actual cost for making copies is greater than ten cents per page, any copying charge which exceeds this amount is excessive. OAG 80-421; OAG 82-396; OAG 84-91; OAG 87-80; OAG 89-9; OAG 91-193; OAG 91-200; 92-ORD-1491; 94-ORD-77; 98-ORD-95; 01-ORD-136.
2 In 97-ORD-46, this office observed the following relative to the burden assumed byrequesters seeking 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. As indicated, Mr. Mitchell ultimately expressed a willingness to inspect the records during the regular office hours of TCES. On appeal, Mr. Mitchell reiterates that The Record attempted to avoid the aforementioned expense by filing a request "seeking the opportunity to inspect and potentially copy" any documents among the 1,845 identified "as might be germane to the newspaper's inquiry." Accordingly, our analysis focuses exclusively on whether Mr. Mitchell has satisfied the lesser burden of identifying the requested records with "reasonable particularity."
3 To the extent TCES failed to respond within three business days of receiving Mr. Mitchell's request dated October 7, 2007, in writing, TCES violated KRS 61.880(1).
4 In closing, Mr. Quinn advises Mr. Mitchell that TCES (to its credit) is "willing to work with you on this matter," but feels "that at this time, your request is unreasonable."To the extent TCES has merely requested clarification as to the scope of Mr. Mitchell's request, such a response is not properly characterized as a denial. 04-ORD-198, p. 3; 05-ORD-137. However, invocation of KRS 61.872(6) is not appropriate on the facts presented. Although Mr. Mitchell's request may implicate numerous records, a "voluminous" request is not "necessarily unreasonably burdensome. " OAG 90-112, p. 5.
5 As correctly argued by Mr. Quinn, The Record's appeal raises other separate but related issues; however, our scope of review is narrowly defined by KRS 61.880(2)(a) to determining whether TCES violated the Open Records Act in denying The Record's written request for public records.
6 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.