Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Fayette Urban County Government, Division of Police violated the Kentucky Open Records Act in denying the request submitted by James Donato, President of Capitol Publishing, for "one copy each of all police dispatch logs in the custody and control of the Department of Public Safety, Lexington Fayette Urban County Government, covering the period of January 1, 2008, to and including January 17, 2008." Although the LFUCG Division of Police initially failed to adduce clear and convincing evidence that honoring Capitol Publishing's request would be unreasonably burdensome as required to successfully invoke KRS 61.872(6), and the question is a close one given the facts presented, the Division ultimately satisfied its burden of proof under KRS 61.880(2)(c), albeit minimally.
Citing 94-ORD-133 (finding that a dispatch log is open for inspection and "particularized justification" must be provided if particular entries are redacted as a policy of blanket nondisclosure relative to names and other identifying information violates the Act) and 94-ORD-144 (upholding 94-ORD-133), Capitol Publishing, "as a news publishing company," requested copies of the aforementioned records. By letter dated February 13, 2008, Officer Aaron Kidd responded to Mr. Donato's request dated January 18, 2008, advising him that the Division "receives over two thousand five hundred calls a day." As Officer Kidd further explained to Mr. Donato:
The Attorney General has stated that as a precondition to inspection, a requesting party must identify with reasonable particularity those documents which he wishes to review. The Attorney General has stated 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. 00-ORD-132. The Attorney General has stated that the Open Records Act was not intended to provide a requestor with particular information or to require public agencies to compile information to conform to the parameters of a given request. 00-ORD-07. To attempt to compile information in response to your general request, which did not identify with reasonable particularity documents you wish to review, would require innumerable man-hours.
In a letter dated February 21, 2008, Mr. Donato initiated this appeal from the denial of his request, noting that he received a written response from the Division on February 19, 2008, "23 business days" after the Division received his written request. Correctly arguing that his request does not require the Division "to compile any information from any documents as the requested documents are records which are specifically prepared by the [Division] on a continuing daily basis," Mr. Donato asks the Attorney General to "order the release of the requested records."
Upon receiving notification of Capitol Publishing's appeal from this office, Michael R. Sanner, Attorney Senior, responded on behalf of the Division, requesting "that this appeal be dismissed pursuant to KRS 61.87[2](6) as an undue burden on the LFUCG." In addressing the procedural issue raised by Mr. Donato, the Division acknowledged receiving his request on January 22, 2008, but indicated that its response was mailed on February 13, 2008 (less than 23 days later). According to Mr. Sanner, the "LFUCG "receives approximately 3,000 to 4,000 open records requests per year and timely responds to approximately 98% to 99% of these requests. However, occasionally a [response] is delayed, as in this case, due to emergency circumstances regarding the personnel in charge of the response." In sum, there was "no intentional delay of the response by the LFUCG in this matter." 1 Elaborating upon the Division's argument relative to KRS 61.872(6), Mr. Sanner argues:
In the instant case, Capitol requested dispatch logs from January 1, 2008, through January 17, 2008. By letter of February 13, 2008, Capitol was informed that the Division of Police receives over 2,500 calls for assistance per day. The call volume for the requested time period by Capitol involves a search of approximately 42,500 calls. While not all calls are dispatched, a large majority of the calls have dispatch records. To provide documents responsive to this request, the Division of Police would have to print out tens of thousands of dispatch reports and review each report in order to redact personal information that may be contained in the report (i.e. home address, phone number, etc.). If Capitol is interested in particular dispatch reports, the reports are indexed by case number or address. Capitol could request dispatch reports based on case number or address for a specific time period. For the LFUCG to print, review and redact tens of thousands of reports, would be an undue burden on the LFUCG when Capitol could identify the reports sought by case number or address. Therefore, LFUCG requests this appeal be dismissed.
Although the question is a close one, this office agrees that honoring Capitol Publishing's voluminous request would be unreasonably burdensome on these facts; accordingly, consideration of the remaining arguments raised by the Division is unwarranted.
Resolution of this appeal turns on KRS 61.872(6), pursuant to which:
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 consistently noted:
[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 public 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), this office "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.
As evidenced by the declaration of legislative intent codified at KRS 61.871, the purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " 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 being sought are of an identified, limited class, 2 the requester satisfies this condition, as Capitol Publishing did here, thereby shifting the burden of proof to the Division. If a public 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. Only if the agency has adduced clear and convincing evidence to support a finding that the burden is indeed unreasonable, will this office then uphold its action. See 00-ORD-180; 00-ORD-72. As the Attorney General emphasized at page 4 of 00-ORD-72, "[t]his burden is not sustained by the bare allegation that the request is unreasonably burdensome. " In other words, "mere invocation of the cited exception does not sustain the agency's burden." Id. See OAG 89-79.
A review of prior decisions applying KRS 61.872(6) reveals the variety of contexts in which agencies have attempted to meet this burden as well as a marked disparity in their efforts. Most recently, this office affirmed the denial of a request on the basis of KRS 61.872(6) because many of the records being sought "reside in files that are subject to a permanent retention requirement," necessitating a search "from agency inception to the present," and because producing records "to the first, and most definite" of the requests "would require up to 1800 hours of staff time." 08-ORD-058, p. 9. Given the inability of the agency to provide "unrestricted inspection" or mail unredacted copies of its records due to statutorily exempt records necessarily being commingled with nonexempt records, "coupled with the sweeping scope of [the] multi-part request, and the absence of any restriction, such as time frame," the agency met its burden. 08-ORD-058, p. 10.
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. Subsequently, 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/agencies. OAG 91-58. 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 Division's initial response; however, the Division adequately explained why honoring the request would be unreasonably burdensome on appeal in our view. As in 08-ORD-058, permitting the requester to inspect per KRS 61.872(3) is not a viable option because of the vast number of redactions potentially required. See 97-ORD-88 (affirming denial by Cabinet for Health Services of requests for voluminous records containing information protected by state and federal legislation on the basis of KRS 61.872(6)).
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. Here, the Division has established that approximately 42,500 calls were taken during the specified time frame with reports being generated in relation to "a large majority." Because dispatch reports are indexed by case number or address, neither of which Mr. Donato provided, the Division would have "to print, review and redact tens of thousands of reports" in order to satisfy his request. Standing alone, neither the voluminous nature of the request nor the necessity of separating confidential information per KRS 61.878(4) is determinative.
In past decisions, the Attorney General has recognized that a request for voluminous documents is not necessarily "indicative of an unreasonable burden where the requester is willing to inspect the records himself." 97-ORD-88, p. 4. Accordingly, this office has consistently noted that the presence of some exempt information in the disputed records does not relieve the agency of its obligation to provide all nonexempt information since "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5, citing OAG 81-198, p. 4. Our holding in those decisions was predicated on the notion that "the decision [to redact] rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." OAG 89-76, p. 3. In the instant appeal, the Division must engage in a case-specific analysis 3 to determine whether portions of the records must be redacted in accordance with applicable statutory provisions and case law; said another way, the decision to redact is not discretionary. 97-ORD-88, p. 4. See 03-ORD-211.
For example, in Bowling v. Brandenburg, Ky.App., 37 S.W.3d 785, 787 (2000), the Kentucky Court of Appeals upheld a 911 caller's right to privacy on the facts that were presented, agreeing with the rationale of the Attorney General in OAG 90-117 "in concluding that in this case, the recording of the 911 tape is not required to be released." In the Court's view, releasing such tapes, "particularly in instances of domestic violence, would have a chilling effect on those who might otherwise seek assistance because they would become subject to . . . retaliation, harassment of public ridicule." Id. at 788. Of additional significance, the Court applied the case-specific approach or balancing test established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), and followed by the Court of Appeals in Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Ky.App., 902 S.W.2d 825 (1994), in upholding the denial on the basis of KRS 61.878(1)(a) . See 06-ORD-230.
More recently, the Court of Appeals applied this standard in protecting the identities of rape and sexual assault victims, holding that the "redaction of names and addresses and other identifying information from the subject police incident reports is proper under KRS 61.878(1)(a)." Cape Publications v. City of Louisville, Ky.App., 147 S.W.3d 731 (2004). Another example of information which presumably might also be contained in dispatch logs/ reports but implicates legitimate privacy interests would be personal information relating to juveniles. Although this office has "stop[ped] short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime," the Attorney General has recognized that "there is . . . a public policy which militates in favor of protecting the privacy of juvenile victims," and that "the weight to be assigned the [juvenile's] privacy interest corresponds to the nature and circumstances of the crime perpetrated against the juvenile. " 96-ORD-115, p. 4 (applying the mandatory language of KRS 620.050(4) , incorporated into the Open Records Act by operation of KRS 61.878(1)(l)). See 03-ORD-057 (upholding the redaction of personal information related to juvenile offenders per KRS 610.320, also incorporated into the Act). 4
"When a request is made for voluminous records containing both exempt and nonexempt information," the burden imposed on the agency "in redacting the exempt information may be an unreasonable one." 97-ORD-88, p. 3. Given the "mandatory confidentiality provisions applicable to much of the information" contained in the licensure reports at issue, "and the volume of records implicated by the request," this office determined that the agency had adduced sufficient evidence to warrant a finding that honoring the request would place an unreasonable burden on the agency in 97-ORD-88. Id., p. 4. This reasoning is equally applicable on the facts presented. Because Capitol Publishing's request "involves numerous records in which confidential information is commingled with information that might be releasable," the difficulty of separating the information which the Division is legally bound to preserve the confidentiality of, "we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872[(6)]." Id., p. 3; 08-ORD-058.
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 As consistently recognized by the Attorney General, KRS 61.880(1) mandates that a public agency issue a written response citing the applicable statutory exception, if any, and briefly explaining how it applies, within three business days of receiving a request; KRS 61.872(5) is the only exception to this general rule. Although the Division belatedly complied with KRS 61.880(1), and the delay was apparently not intentional, the Division is required, "as a public agency, to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted pursuant to the Open Records Act. " 05-ORD-064, p. 6. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records or issuing a response. Id. Because the Division concedes that its response was untimely, this office will not belabor the issue any further.
2 Although not dispositive in this case, Mr. Donato arguably did not "precisely describe" the records being sought as required to receive copies via mail.
3 In 94-ORD-133, this office engaged in a lengthy analysis of a 911 dispatch center's blanket policy of denying access to its dispatch log on the basis of either KRS 61.878(1)(a) or (h), concluding that a generic determination that certain categories of information are excluded from the application of the Open Records Act under these exceptions, or any other exception, does not satisfy the requirements of the law. Exclusion of particular entries on a dispatch log, this office reasoned, must instead be articulated in terms of the requirements of the statutory exception. In 94-ORD-144, the Attorney General extended this holding to audiotapes of 911 calls. Although this office recognized that a public agency might assign greater weight to the privacy interests of a caller whose voice appears on a tape, since his or her identity might be determined through voice identification and therefore could not be protected, this office again held that a policy of blanket nondisclosure was improper. A "refusal of inspection of any portion of the tapes must be justified with specificity and with reference to the particular statutory exemption upon which the agency relies." 94-ORD-144, p. 4.
4 Further support for the instant decision is found in 07-ORD-141 (affirming the decision by the Kentucky State Police to redact dates of birth under KRS 61.878(1)(a) and addresses obtained through 911 Automatic Location Information or (ALI) under authority of KRS 65.752(3) and (4)).