Request By:
Morgan G. Ransdell
Roland D. Mullins
Thomas L. Jensen
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cumberland River Regional Mental Health-Mental Retardation Board, Inc. (d/b/a Cumberland River Regional Comprehensive Care Center) violated the Kentucky Open Records Act in denying the request submitted by Morgan G. Ransdell, in his capacity as Managing Attorney for the Kentucky Commission on Human Rights, for "copies of any and all records that identify the full name of each and every employee who was employed by your organization at any time during the period January 1, 2006, to present." Because Mr. Ransdell did not "precisely describe" the records being sought, nor can the records consequently be characterized as "readily available, " CRRCCC was not required to provide him with copies by mail; however, CRRCCC is required to make records which are potentially responsive available for inspection during regular business hours in accordance with prior decisions of this office interpreting KRS 61.872(3). In other words, the request describes the records with enough specificity for the CRRCCC's official custodian to "identify what documents [he] wish[es] to see," 1 when viewed in context, and CRRCCC is therefore required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce" records containing the names of the employees. CRRCCC is not statutorily required to conduct an exhaustive search in order to ensure that all such records have been located.
By letter directed to Roland D. Mullins, President of the Board, on January 23, 2008, Mr. Ransdell submitted his request under the Kentucky Open Records Act. In light of the Board's decision "to disregard the attached order compelling [the] organization to identify each employee discharged from January 1, 2006, to present," Mr. Ransdell was "directed to file a circuit court enforcement petition against [the] organization." 2 Because CRRCCC receives public funds, Mr. Ransdell determined "that a request under the Open Records Act may provide an alternate mechanism for obtaining the information the Commission seeks." 3 Accordingly, he asked Mr. Mullins for "copies of any and all records that identify the full name of each and every employee who was employed by your organization at any time during the period January 1, 2006, to present."
In a timely written response, Thomas L. Jensen, "on behalf of and under authority of Roland Mullins," denied Mr. Ransdell's request because it "is a nonspecific, overly broad blanket request for information which, even if it could be reasonably complied with, would place an unreasonable burden upon the agency to do so. KRS 61.872(6) ." Without further elaboration, Mr. Jensen cited "OAG 85-107 (blanket requests for information on a particular subject without specifying what documents are desired need not be honored)," and "OAG 89-8 (a request to inspect all records relative to two specifically named state troopers is too broad and too general to require a production of documents for inspection) " in support of his position relative to KRS 61.872(6). In the alternative, Mr. Jensen argued that complying with Mr. Ransdell's request, "even if it could be reasonably done, would result in the disclosure of personal information that is excluded from inspection by KRS 61.878[1](a). 'Any and all' records relating to the agency's employees would include, at a minimum, personnel, payroll and benefits/workers' compensation records."
Although the CRRCCC "may be subject to the Open Records Act, " Mr. Jensen asserts that "Kentucky case law has long recognized that the Open Records Act does not destroy a person's right of privacy." More specifically, Kentucky courts have recognized "that production of personal information such as marital status, number of dependents, wage rate, social security number, home address and telephone number is not authorized by the Open Records Act. " Citing
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994), Mr. Jensen notes that the Kentucky Court of Appeals "has held that this type of information is generally accepted by society as details in which [an] individual has at least some expectation of privacy." 4 Citing 00-ORD-137, Mr. Jensen further observes that information of a "purely personal nature and unrelated to public employment, such as home address, social security number, and marital status, may be redacted from any response to an Open Records Request." 5 Although Mr. Jensen is correct in these contentions, he fails to realize their limited significance on the facts presented; the Board was not justified in denying Mr. Ransdell's request in its entirety on the basis of KRS 61.878(1)(a) nor has the Board adduced clear and convincing evidence that honoring the request would be unreasonably burdensome as required to successfully invoke KRS 61.872(6).
Disputing CRRCCC's characterization of his request as overly broad, Mr. Ransdell initiated this appeal on behalf of the Commission by letter dated February 6, 2008, clarifying that he is only seeking "the names [of] all persons employed by CRRCCC at any time during the period January 1, 2006, to present." 6 According to Mr. Ransdell, the request "is highly specific and is limited in time." Conceding that he cannot use the Open Records Act "to compel CRRCCC to create a document," Mr. Ransdell asserts that is why he "simply requested 'copies of any and all records that identify the full name of each and every employee who was employed at [the] organization at any time during the period January 1, 2006, to present.'" In response to Mr. Jensen's argument regarding privacy, Mr. Ransdell notes that CRRCCC "can redact any portion of the requested documents that contains private information." As correctly observed by Mr. Ransdell, the Board "is cognizant of this," and "stated as much" in the denial of his request. Contrary to CRRCCC's assertion, "the names of CRRCCC's employees during the period specified are not exempt from production," and its failure to "simply redact private information is troubling to [Mr. Ransdell]." Based upon the foregoing, Mr. Ransdell asks this office to direct the CRRCCC to provide him "with copies, redacted or otherwise, of documents that will identify each of the individuals employed by CRRCCC from January 1, 2006, to present." 7 Although this office issued a "Notification to Agency of Receipt of Open Records Appeal" to both Mr. Mullins and Mr. Jensen on February 8, 2008, advising that CRRCCC was permitted to respond per 40 KAR 1:030, Section 2, but any response was due by February 14, 2008, "and that a copy of its response, and any accompanying materials" must be forwarded to the complaining party, this office has not received a response as of this date nor been advised of any further action by CRRCCC relative to Mr. Ransdell's request.
In 99-ORD-63, this office analyzed the propriety of the Breathitt County Clerk's disposition of a broadly framed request for copies of "any and all" records concerning a particular subject. More specifically, the Clerk denied the request, but agreed to provide the requester with access to existing records in his custody for on-site inspection. Because the requester had failed to satisfy the requirements of KRS 61.872(3)(b), and therefore was not entitled to receive copies of the records by mail, this office affirmed the Clerk's disposition of his request. In our view, the reasoning of that decision is persuasive on the facts presented. As noted at page two, KRS 61.872(3) establishes the following guidelines for inspection of public records:
(1) 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 other words, the Open Records Act contemplates access to records "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. " 03-ORD-067, p. 4. Therefore, 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. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the 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." Id., p. 5; 04-ORD-011.
Because the Commission is located in Louisville, Kentucky, and the records in question are presumably located in Corbin, Kentucky (the postal address for CRRCCC according to its website and the address to which Mr. Ransdell directed his request to Mr. Mullins), 8 the Commission satisfies the threshold requirement of KRS 61.872(3)(b). However, Mr. Ransdell is entitled to receive copies of the records by mail only after he "precisely describes" the records, which must be "readily available within the public agency. " As consistently recognized by this office:
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(3)(b), this office has observed:
. . .
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). 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.
. . .
The third requirement (that the records be "readily available within the public agency" ) 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.
99-ORD-63, p. 3, 4; 97-ORD-46; 01-ORD-225; 01-ORD-185; 03-ORD-195 (emphasis added). In 97-ORD-46, and many subsequent decisions, the Attorney General noted that "it is . . . incumbent on the agency to indicate, in at least general terms, the difficulty in identifying, locating, and retrieving the requested records." Id., p. 5. This CRRCCC has not done.
As in 99-ORD-63, 01-ORD-185, 03-ORD-195, and 05-ORD-152, the requester has failed to describe the records he wishes to access by receipt of copies through the mail in "definite, specific, and unequivocal" terms, and, therefore, fails to satisfy the requirements of KRS 61.872(3)(b). Because the records were not precisely described, the records cannot accurately be characterized as "readily available" in the relevant sense. 06-ORD-155, p. 10; 01-ORD-185. Unlike the records at issue in 04-ORD-028 (any and all " investigatory records relating to an isolated incident involving a named individual that occurred at a designated location on a specific date"), for example, the records to which Mr. Ransdell sought access were not described with sufficient precision to enable the records custodian at CRRCCC to conclusively determine that all such records were identified, located, retrieved, and copied, the intentionally higher standard which a requester must satisfy in order to access records by mail. However, CRRCCC has not even attempted to establish the approximate number of records implicated by the request, the difficulties associated with accessing records which are potentially responsive, or the estimated manpower that would be required in making a good faith effort to honor the request. Compare 08-ORD-018 (holding that agency demonstrated the difficulties associated with identifying, locating, retrieving, and redacting the records). That being the case, CRRCCC may require Mr. Ransdell to conduct an on-site inspection of the records prior to furnishing him with copies; however, CRRCCC may not deny the request entirely. 06-ORD-155, p. 10. Where a requester does not identify the records being sought with precision, or wishes to extract information that has not already been compiled, 9 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.
Because Mr. Ransdell's request was sufficiently specific for the records custodian at CRRCCC to "identify what documents [he] wish[es] to see," 10 CRRCCC is required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records" he requested. 06-ORD-177, p. 6 (citations omitted). CRRCCC cannot evade this duty altogether by claiming the request was improperly framed and nonspecific, but must "expend reasonable efforts to identify, locate, redact, and make available for inspection all existing nonexempt records" which are responsive to Mr. Ransdell's request; nothing more, nothing less. Id.
Nor can CRRCCC evade this duty through a claim that honoring the request would be unreasonably burdensome under KRS 61.872(6) without "forecast[ing] what its actual burden will be." Chestnut at 4. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the General Assembly has provided that a denial under KRS 61.872(6) must be sustained by clear and convincing evidence. As consistently recognized by the Attorney General, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " 00-ORD-72, p. 4. In other words, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79. Here, CRRCCC merely cited KRS 61.872(6) and referenced two prior decisions without applying the law to these facts in denying the Commission's request. CRRCCC did not choose to supplement its denial. In accordance with 06-ORD-028 and the authorities upon which that decision is premised, this office finds that CRRCCC failed to satisfy its burden of proof relative to KRS 61.872(6); a copy of that decision is attached hereto and incorporated by reference. See also 06-ORD-177.
Although some of the records implicated by the Commission's request may contain exempt information, the necessity of separating "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 . . . [records] does not relieve [CRRCCC] 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." Given the mandatory language of this provision, CRRCCC is not permitted to deny access merely because redaction of some information is required under KRS 61.878(1)(a); CRRCCC concedes as much in arguing that information of a personal nature "may be redacted from any response" to a 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 Department of Corrections v. Chestnut , Ky. App., 2004-CA-1497-MR (2005). Although Department of Corrections v. Chestnut is an unpublished opinion which, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of this state, Chestnut is presumably indicative of the view which the courts might ultimately adopt in a published opinion addressing the degree of specificity required in formulating a request under the Open Records Act. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-000086).
2 On February 28, 2008, Mr. Ransdell faxed a copy of the referenced order to this office at the request of undersigned counsel; a copy was necessarily provided to CRRCCC upon issuance and presumably again with Mr. Ransdell's request. In relevant part, Commission Chair Priscilla Johnson ordered CRRCCC to "file a discovery response that identifies the full name, last known home address, last known telephone number, last job title with the respondent, and reason for discharge for each employee that the respondent has discharged from January 1, 2006, to present." Further, Mr. Ransdell was directed to file an "enforcement petition" in the appropriate circuit court if CRRCCC did not comply within twenty days, including "a request for an award of the Commission's costs and attorney fees arising from the respondent's failure to respond as ordered."
3 To clarify, the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool; however, this office has also recognized that requests under the Open Records Act are based upon a statutory basis independent of the rules governing discovery and no exceptions are provided for denying inspection on the ground that litigation is either contemplated or in progress. In Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), the Kentucky Court of Appeals expressly agreed with the line of decisions dating back to 1982 in which this office recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act. See 06-ORD-208, pp. 3-6.
4 With regard to application of KRS 61.878(1)(a), commonly referred to as the "privacy exception," the analysis found at pp. 5-10 of 06-ORD-006, a copy of which is attached hereto and incorporated by reference is controlling. Of particular significance, 06-ORD-006 applies KRS 61.878(1)(a) and Zink in the context of a request for specified information contained in personnel records of public employees, and the names of public employees in particular.
5 In 03-ORD-012, this office held that a public agency had improperly denied a request for the complete personnel records of named employees on the basis of KRS 61.878(1)(a), reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," and, therefore, the agency must "determine what is and is not subject to Open Records." Id., p. 7. Quoting extensively from 97-ORD-66, the Attorney General held:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. [Citations omitted.] In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. [Citations omitted.] Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. [Citations omitted.] Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5. To summarize, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and[,] therefore[,] the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3. A public employee's date of birth and home telephone number may also be withheld per KRS 61.878(1)(a) as a personal detail accepted by society as carrying an expectation of privacy that outweighs the minimal public interest in disclosure. See 07-ORD-141; 04-ORD-143. Although Mr. Ransdell did not specifically request copies of personnel files, CRRCCC has acknowledged that such records would be among those responsive and this line of decisions expressly refutes the argument that CRRCCC may withhold such files in their entirety merely because redaction of confidential information would be necessitated under KRS 61.878(1)(a).
6 Although a review of the record as a whole validates Mr. Ransdell's assertion, this office must review the actions of CRRCCC in light of the request as originally framed.
7 Had Mr. Ransdell narrowed his request in this manner and, for example, requested payroll records or personnel files, which contain this information, as opposed to asking for "any and ALL" records that identify each of the individuals employed by CRRCCC during the limited time frame, CRRCCC's characterization would be far less credible. Although this office has generally disfavored "open-ended-any-and-all-records-that-relate-type-requests" concerning a particular subject (s) or individual(s) historically, as correctly observed by CRRCCC, inclusion of the words "any and all" is not necessarily fatal to a request; this determination is made on a case-by-case basis and the request at issue falls between those requests deemed impermissibly broad and those which "precisely describe" the records in our view. With regard to the degree of precision required, this office has consistently recognized that 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 (citation omitted). In Chestnut , the Court has gone one step further in declaring that records description is adequate if the agency's custodian is able to "identify what documents the applicant[] wish[es] to see . . ." Id . at 4.
8 Although the agency has facilities in a number of southeastern Kentucky counties, Jefferson County does not have any such facility nor does the record indicate that records for the agency are maintained somewhere other than Corbin. Mr. Jensen's office is located in London, Kentucky.
9 A public agency such as CRRCCC is not statutorily required to honor requests for information as opposed to requests for specifically described public records; nor is a public agency obligated to compile a list or create a record to satisfy a request. See 05-ORD-006. Public agencies are required to make available for inspection, during normal office hours, records that may yield the information being sought. Id., pp. 7-8.
10 Chestnut at 4.