Request By:
Karen Chrisman
Brenda James
J. Todd Shipp
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet violated the Open Records Act by failing to timely respond to the open records request of Karen Chrisman and whether it properly denied the request, under authority of KRS 61.872(6) , on the basis that to comply with the request would place an unreasonable burden on the agency.
By letter dated October 22, 2007, Ms. Chrisman submitted a request to the Cabinet for copies of the following records of the Medical Review Board:
1. Since 2001, the form TC 94-86 of all individuals that have a neurological or neuromuscular disorder with a diagnosis of category II Active Impairment A No interference with driving at present AND the documentation from this individual's file that the Medical Review Board required this individual to submit a driving road test AND documentation from the file that shows whether this person was a licensed driver or whether the license was a learner's permit.
2. Since 2001, the form TC 94-86 of all individuals that have a neurological or neuromuscular disorder with a diagnosis of category II Active Impairment B Potential interference with driving at present AND the documentation from this individual's file that the Medical Review Board required this individual to submit a driving road test AND documentation from the file that shows whether this person was a licensed driver or whether the license was a learner's permit.
Ms. Chrisman indicated that she understood that the information in the TC 94-86 was medical information, but stated that she had no interest in any information that would identify any individual and specifically requested that any identifying information be redacted.
In her letter of appeal, dated October 30, 2007, indicated that, as of that date, she had received no response from the Cabinet and interpreted the lack of response as a denial of her request.
After receipt of notification of the appeal, Todd Shipp, Assistant General Counsel, provided this office with a response on behalf of Cabinet addressing the issues raised in the appeal. He provided this office with a copy of the Cabinet's November 5, response to Ms. Chrisman's request, which he described as a "blanket request for information and documentation on a particular subject involving neuromuscular disorder or neurological disorder, and information that shows whether the person was licensed or possessed a learner's permit." In his response he advised:
The reason for any delay in our response was simply due to the extensive nature of this request. We have attempted to retrieve the information sought but the Transportation Cabinet does not maintain a database isolating one condition from another. All cases are unique and stand on their own factual and legal footing. In order to have any marginal chance of meeting this request would be to search thousands of documents in hopes of finding the ones she seeks, then a review of driving statutes and a redaction. In essence, all activity of the Medical Review Board would cease to try to meet this request.
In the Cabinet's November 5, 2007, response to Ms. Chrisman's October 22, 2007, request, Ann Stansel, Records Custodian, denied her request, advising, in part:
Our Division of Driver Licensing does not maintain a database that would allow personnel to identify and pull only those files containing the information requested. Identification of the requested records would require Driver Licensing personnel to pull and review each and every file within the Medical Review Branch for the past six years, and then copy and redact all identifying information from each and every relevant file located. This would entail the review of literally thousands of documents. To comply with this request would place an unreasonable burden on the personnel within the Medical Review Branch and effectively cause those employees to have to cease all other necessary functions of that office until your request was satisfied. As those employees perform an essential function that cannot be disrupted to satisfy this broad request, your request is denied pursuant to KRS 61.872(6).
To begin, we find that the Cabinet's failure to timely respond to Ms. Chrisman's request constituted a procedural violation of the Act. KRS 61.880(1) governs agency response to an open records request. That statute requires public agencies to respond in writing, and within three business days , to all open records requests, regardless of the identity of the requester or the nature of the records requested. The Cabinet's failure to discharge this statutory duty constituted a violation of KRS 61.880(1).
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. If, on the other hand, any of those conditions exist, the agency must " immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, " unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection ." KRS 61.872(5) (Emphasis added); 02-ORD 165. On November 5, 2007, the Cabinet did respond to Ms. Chrisman's October 22, 2007. This did not cure the failure to timely respond to the open records request and to provide a detailed explanation for the delay in notifying the requester of its decision to comply with the request, as required by KRS 61.880(1) and KRS 61.872(5) .
Addressing the substantive issue, Ms. Chrisman specifically requested that she be provided with copies of records containing the information she was seeking. KRS 61.872(3) establishes guidelines for records access under the Open Records Act by providing:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In construing these provisions, the Attorney General has observed:
The Open Records Act . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency . See, e.g., 95-ORD-52; 96-ORD-186. . . .
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 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, and provides that those records must be readily available within the agency. In 97-ORD-46, this office determined 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. See also, 01-ORD-225.
The narrow issue is whether Ms. Chrisman "precisely described" the records, and whether the records are "readily available within the public agency. "
Ms. Chrisman's request was broad in scope and did not describe in definite, specific, and unequivocal terms the records she wished to access by mail. She requested records, over a six year period, of all individuals that have a neurological or neuromuscular disorder with a diagnosis of category II Active Impairment A No interference or a diagnosis of category II Active Impairment B Potential interference with driving at present and documentation from each individual's file that the Medical Review Board required this individual to submit to submit a driving road test and documentation that shows whether this person was a licensed driver or whether the license was a learner's permit). It is the opinion of this office that Ms. Chrisman did not precisely describe the records with sufficient precision to enable the Cabinet to identify and locate the records she was seeking, as required by KRS 61.872(3)(b).
Moreover, we find that the requested documents are not "readily available within the public agency. " With reference to the third requirement found in KRS 61.872(3)(b), that the public records sought be readily available within the agency, this office has observed:
The third requirement, as we understand it, permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . ., 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, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours . KRS 61.872(1); KRS 61.872(2); KRS 61.872(3)(a); OAG 90-19; 97-ORD-12.
97-ORD-46, p. 5 (emphasis added). We did, however, note in 97-ORD-46 that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." 97-ORD-46, p. 5.
In its response the Cabinet advised that all cases are unique and stand on their own factual footing and it does not maintain a database isolating one condition from another that would allow the agency to identify, locate and pull only those files containing the information requested. The Cabinet explained it would have to review each and every file maintained in the Medical Review Board for the past six years, constituting literally thousands of documents, in order to search for the records and information requested. The Cabinet further explained that it would then have to copy and redact all identifying information from each and every relevant file located. Citing KRS 61.872(6), the Cabinet denied the request, stating that to comply with this request would place an unreasonable burden on the personnel within the Branch and effectively cause those employees to have to cease all other necessary functions of that office until the request was satisfied. We agree.
KRS 61.872(6) 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.
In construing this provision, the Attorney General has observed:
The purpose and intent of the Open Records Act is to permit "the 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 request 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 in producing voluminous public records.
92-ORD-1261, p. 3.
In 99-ORD-14, we held that a request for copies of all Revenue Cabinet records relating to the requester or containing her name for a four year period, which did not identify the records with "reasonable particularity," and which were not of an identified, limited class, imposed an unreasonable burden on the agency. In affirming the Revenue Cabinet's partial denial of the request, we stated:
It is our view that a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
In 06-ORD-177 this office declared that a public agency could not:
evade its duty through a claim of unreasonable burden, per KRS 61.872(6), without "forecast[ing] what its actual burden will be." Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005), p. 4. 1
In the instant case, the Cabinet indicates that in order to comply with the request, it would be required to review each of literally thousands of documents created and retained by the Medical Review Board for the past six years to determine if any of its records fell within the described requested records, then redact all identifying information from each and every relevant file located.
Under these facts, it is the opinion of this office that because Ms. Chrisman did not precisely describe the records to which she requested access by receipt of copies through the mail, they were not readily available, as required by KRS 61.872(3)(b), and that the Cabinet demonstrated the difficulties associated with identifying, locating, retrieving, and redacting the records responsive to the request, we find that the Cabinet "forecasts what its actual burden will be," Chestnut at p. 4., although minimally, with the specificity envisioned by KRS 61.872(6), and properly relied upon that statute in denying the request.
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).