Request By:
Richard G. Griffith
Noelle Brodeur
David N. Shattuck
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Environmental and Public Protection Cabinet violated the Open Records Act in the disposition of James D. Allen's October 15, 2007, request for fourteen categories of records relating directly or indirectly to a citation issued to his client, Industrial Tech Services, Inc. (ITS) on January 11, 2007. For the reasons that follow, we find that although its original denial was deficient, the Cabinet ultimately corrected these deficiencies by providing clear and convincing evidence of an unreasonable burden within the contemplation of KRS 61.872(6) .
In his October 15 records application, 1 Mr. Allen requested "access to and copies of" a broad range of records maintained by the Cabinet and described as:
1. All documents Kentucky OSHA has regarding any matters for which a citation has been issued under 29 CFR 1910.23(c)(1).
2. All documents pertaining to any inspections, investigations and/or citations issued by Kentucky OSHA regarding falls from platforms.
3. All documents that involve any inspection or investigation of individuals or employees working at heights four (4) feet or more above adjacent floor or ground level and for which Kentucky OSHA did not issue a citation to the employer or other entities.
4. All documents contained in the inspection, case or administrative file for Inspection No. 310124409, for which Industrial Tech Services, Inc. ("ITS") was issued a citation on or about January 11, 2007.
5. All documents in any inspection, investigative, case or administrative file involving falls from truck beds, loading or unloading areas of trucks, railroads and/or marine docks. The intent of this request is to seek any and all documents pertaining to what is mentioned in the preceding sentence for which citations were either issued or not issued to an entity. In the event a citation was issued, and the respondent/entity contested the matter, we request copies of all documents contained in the inspection, investigative, case or administrative file.
6. All statements or notes taken during the course of the Inspection referred to in Request No. 4 above.
7. All documents that refer to fall protection in general or that refer to 29 CFR 1910.23(c)(1) and/or 29 CFR 1910.21(a)(4), which defines "platform" .
8. The agreement and related documents between Kentucky OSHA and the Federal Occupational Safety & Health Administration that pertains to Kentucky's authority to operate a state-run OSHA program.
9. All documents contained in any inspection, investigative, case or administrative file that related to temporary platforms in circumstances in which the entities in question were not cited for violation of a Kentucky Occupational Safety & Health Standard.
10. All documents Kentucky OSHA has received from the Federal Occupational Safety & Health Administration pertaining to 29 CFR 1910.23(c)(1), including any directives that relate to that standard or the definition of "platform" set forth in 29 CFR 1910.21(a)(4).
11. All work notes of the investigator taken during the inspection referred to in Request No. 4 above.
12. All documents contained in any inspection, investigative, case or administrative file of Kentucky OSHA wherein a Compliance Safety & Health Officer observed employees working from truck beds at heights four (4) feet or more above adjacent floor or ground level and the entity in question was not cited by Kentucky OSHA.
13. All documents contained in any inspection, investigative, case or administrative file that related to citations issued for falls from truck beds.
14. All documents contained in any inspection, investigative, case or administrative file that involves working from trucks.
Mr. Allen's request was not restricted by time frame or any other qualifier.
In a response dated October 22, 2007, the Cabinet largely denied Mr. Allen's request advising him as follows:
The file you requested is currently in litigation, therefore, pursuant to KRS 61.878(1)(h), the records in the file are exempt from release, with the exception of the citation, a copy of which is enclosed. The Cabinet feels that the premature release of information could jeopardize administrative adjudication by releasing strategies for hearing or witnesses. If you need additional information from this file, you may wish to resubmit your request in ninety days.
In response to your other requests, due to the number of records requested as well as the estimated amount of time and expense to this agency, the remainder of your request is denied based on your request being an unreasonable burden to the agency.
In February 2008, Mr. Allen's colleague, Richard G. Griffith, initiated this open records appeal on behalf of ITS, questioning the adequacy of the Cabinet's response and its implied reliance on KRS 61.872(6). In particular, Mr. Griffith observed, "[t]he Cabinet has plainly failed to meet its statutory burden of demonstrating, by 'clear and convincing evidence, ' that compliance with ITS's open records request would amount to an 'unreasonable burden. '"
In supplemental correspondence directed to this office following commencement of ITS's appeal, the Cabinet elaborated on its original denial. Acknowledging the deficiencies in its original response, the Cabinet addressed each of ITS's fourteen requests. The Cabinet asserted that requests 1, 2, 3, 5, 7, 9, 12, 13, and 14 2 "place an unreasonable burden on the agency per KRS 61.872(6)" because the requests are "overly broad in subject matter," "are not limited to a reasonable time frame," and the records sought are not "maintain[ed] in a format that would allow [the Cabinet] to locate them as requested." Moreover, the Cabinet noted, the responsive case files "contain at least some information which is exempt, " exacerbating the difficulties associated with production. In response to an earlier discovery request, the Cabinet located "in excess of 900 cases" involving citations issued under 29 CFR 1910.23 between January 1, 1980, and November 11, 2007. With respect to numbered request one and these responsive cases, the Cabinet maintained:
Responding to the request [for documents regarding citations issued under that provision] would require the agency to spend untold hours retrieving then printing the 900 files, reviewing each file by hand to determine if it involved a fall from a truck or a platform, and then redacting exempt date from each of those files. An hour per file constitutes a conservative estimate for retrieval and review of each file by a paralegal. An additional hour would be needed to redact and prepare the file for inspection or copying. 3
Additionally, the Cabinet noted that requests 3, 5, 9, and 12 are unreasonably burdensome because they relate to instances in which no citation was issued and the Cabinet maintains "no database containing records of citations not issued." Finally, the Cabinet indicated that it maintains no records responsive to ITS's request for "documents Kentucky OSHA has received from federal OSHA interpreting the standards and/or definitions at issue in the citation contest," suggesting that "all such interpretative documents are located on the federal OSHA website." 4 We believe that the Cabinet adduced, by the slightest of margins, sufficient evidence to support its claim of undue burden in this supplemental response.
The provision upon which the Environmental and Public Protection Cabinet relies, KRS 61.872(6), states:
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 recognized:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records [or is intended to disrupt its essential functions] 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 -- request to inspect "10,000 cases [is] certainly 'voluminous, '" but not necessarily unreasonably burdensome [or disruptive of an agency's essential functions].
OAG 90-112, p. 5, citing OAG 84-278, p. 2.
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 (or a series of requests) 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:
Repeated requests to inspect 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. We have also recognized, however, 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. 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 an agency in effectively executing its public function.
96-ORD-155, p. 3, 4.
The statement of legislative intent codified at KRS 61.871 firmly establishes that the purpose and intent of the Open Records Act is to permit "free and open examination of public records. " KRS 61.871. If an agency 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. A cursory review of open records decisions analyzing the applicability of KRS 61.872(6) to specific fact patterns reflects a marked disparity in the extent to which public agencies attempt to meet this statutory burden. In a recent decision, this office reaffirmed the longstanding principle that a public agency cannot evade its statutory duty by invoking KRS 61.872(6) without clear and convincing evidence supporting this claim. 08-ORD-047 (Cumberland River Regional Comprehensive Care Center adduced no evidence in support of a denial based on KRS 61.872(6)). Similarly, in 05-ORD-024 the Simpson County Jailer argued that a request for grievances filed since he assumed the office of jailer was unreasonably burdensome. Because the record on appeal 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, we held that the jailer's reliance on KRS 61.872(6) was factually unsupported, concluding that "[a] bare allegation that the request is unreasonably burdensome [or intended to disrupt essential functions] does not satisfy the requirements of the statute." 05-ORD-024, p. 5, citing 96-ORD-201; 96-ORD-193; 96-ORD-100; 98-ORD-87; 00-ORD-72.
Conversely, in 00-ORD-72 the Kentucky Board of Barbering submitted a loose leaf binder measuring approximately four and one-half inches in width, and documenting every written and telephone communication with the open records requester in a one and one-half year period, to support its position that a request for licensing records relating to a named licensee "place[d] an unreasonable burden on the agency to produce records, and [was] intended to disrupt its essential functions." Notwithstanding the lengths to which the Board went to meet its burden of proof, we again found insufficient proof under KRS 61.872(6), observing:
The Board's original denial of the January 24 request contained little more than an unsupported allegation of an unreasonable burden. The Board supplemented that denial upon receipt of this office's notification of appeal by furnishing us with a copious record documenting all exchanges, written and verbal, with the requester from July, 1998, to the present. Our review of that supplemental denial discloses that in a period of approximately twenty months, the Board received roughly thirty requests for records, some of which cannot technically be characterized as open records requests (for example, requests for copies of his license for which the Board charged him ten dollars, and requests for copies of "law books"). Thus, on average the Board received 1.5 open records requests per month.
While this represents the proverbial tip of the iceberg relative to the total number of exchanges, written and verbal, that occurred in the same period, we must restrict our analysis to the January 24 records application, and the roughly 29 requests that preceded it as a basis for establishing an unreasonable burden or an attempt to disrupt essential functions. While we agree that the tenor of these written and verbal exchanges is evidence of the animosity the requester bears toward the Board, we believe the most compelling evidence of an intent to disrupt is the proof presented of six duplicative requests. Ultimately, however, we do not believe that this constitutes sufficient empirical evidence to support a claim under KRS 61.872(6), where the record demonstrates a total of only thirty requests in twenty months.
00-ORD-72, p. 6; accord, Department of Corrections v. Chestnut , 2004-CA-001497-MR (Ky. App. 12/29/05) unpublished opinion holding that in invoking KRS 61.872(6), an agency must "forecast what its actual burden would be." 5
The Cabinet invokes KRS 61.872(6) in the appeal now before us based on the claim that ITS's single multi-part request would impose an unreasonable burden in producing voluminous public records. The Cabinet documents how production of records responsive to only one of ITS's multipart request would occupy staff for up to 1800 hours based on its estimate of the time required to locate, retrieve, and review those records, and to redact protected information and reproduce copies. Although not limited by time frame or any other qualifier, that request was at least limited as to subject, namely, documentation relating to 29 CFR 1910.23(c)(1) citations, and thus an arguable limited class of records. The majority of ITS's requests are far more "open-ended any-and-all-records-that-relate-type of requests" that were specifically criticized in 96-ORD-101 and 99-ORD-14, or "broad discovery requests" that were similarly criticized in 00-ORD-79. Given the lack of specificity of these requests, the Cabinet could not estimate the number of records implicated or the amount of time its staff would expend in locating, retrieving, reviewing, redacting, and reproducing those records. It is particularly relevant here that many of the records sought reside in files that are subject to a permanent retention requirement found at Records Series 05718 of the Environmental and Public Protection Cabinet Department of Labor's Records Retention Schedule, and that the Cabinet would therefore be required to search its records from agency inception to the present. Having demonstrated that producing records responsive to the first, and most definite, of ITS's request would require up to 1800 hours of staff time, we believe that the Cabinet met the clear and convincing standard of evidence set forth at KRS 61.872(6), and affirm its denial based on this provision.
The Cabinet cannot, in this instance, open its records to ITS for unrestricted inspection in view of the fact that statutorily excepted records, such as compliance officer's work notes containing employee interviews, which are excluded from public inspection by KRS 338.101(1)(a), are commingled with nonexempt records. Compare 01-ORD-225 (Department of Alcohol Beverage Control satisfied its statutory obligation by permitting requester to conduct an onsite inspection of nonexempt records in its custody that might be responsive to his "discovery-like" request). While this fact, standing alone, is not always dispositive of the access issue, the presence of statutorily excepted records, coupled with the sweeping scope of ITS's multi-part request, and the absence of any restriction, such as time frame, compels us to affirm the Cabinet's position.
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 While it is not generally our practice to recite a multi-part request such as the request at issue in this appeal, we do so here to suggest the exceedingly broad scope of that request.
2 ITS does not dispute the Cabinet's right to withhold records relating to KY-OSH Inspection No. 310124409 (requests 4, 6, and 11).
3 Although the Cabinet did not, at this juncture, reference KRS 61.878(1)(j) and/or (l), incorporating KRS 338.101(1)(a) into the Open Records Act, in subsequent discussion the Cabinet invoked these exceptions in support of the need to redact case officer's preliminary work notes and employee interviews.
4 The Cabinet agreed to release the nonexempt portions of the inspection file identified in request 4, notwithstanding ITS's acknowledgment that the file could properly be withheld. The Cabinet also agreed to permit ITS to conduct an onsite inspection of four volumes of information responsive to request 8 relating to Kentucky authority to operate a state run OSHA program.
5 Department of Corrections v. Chestnut is an unpublished opinion rendered after January 1, 2003, that, pursuant to CR 76.28(4)(c), may be cited for consideration if there is no published opinion that adequately addresses the issue. Petition for discretionary review was granted in this case in May 2006 (2006-SC-000086).