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 Office of Nelson County Judge Executive violated the Open Records Act in the disposition of Kevin Brumley's May 29, 2008, request for "any check(s) made out payable to Don Coffman that were paid out of any bank that Nelson County Fiscal Court has an account with from 2005 to May 29, 2008." For the reasons that follow, we find that the agency failed to meet its statutory burden of proof in denying Mr. Brumley's requests, under authority of KRS 61.872(6).
In his letter of appeal, Mr. Brumley stated that when he presented his May 29, 2008, request to County Judge Executive Dean Watts, Judge Watts pointed to a May 28, 2008, letter that had been included with records provided to Mr. Brumley in response to a May 23, 2008, request. The May 28, 2008, letter, which served as the basis for denying Mr. Brumley's May 29, 2008, request, in advance of its receipt, stated:
Enclosed you will find the requested information.
Any further requests will be considered an unreasonable burden on our office, and the repeated requests will be considered disruptive to essential functions of the public agency -- see enclosed KRS 61.872(6).
After receipt of notification of the appeal, Judge Watts provided this office with a response to the issues raised in the appeal. In his response, he advised:
I am the official custodian of all county records. I did deny Kevin's request due to the fact that it presented an undue burden on my office. I have one secretary in my office and her responsibilities include payroll, answering phones, and all human resource needs.
We have limited staff and Kevin and his partners have continued to be a burden. I truly felt this to be a burden as per the attached previous requests.
I take the responsibility of open records requests very serious and really believe I followed the law. I would be glad to meet and discuss further if you need me.
In support of the agency's position, he provided a copy of a May 8, 2008, request from Mr. Brumley, requesting a copy of the survey contracted by any entity of Nelson County Government with Meyer Surveying on Sanders Lane during 2008. He also requested any written contract and written correspondence between any entity of Nelson County government, and an invoice of all cost incurred by the county with the survey. At the bottom of the request, is Mr. Brumley's signature acknowledging receipt of the records.
Judge Watts also provided copies of three separate May 23, 2008, requests submitted by Mr. Brumley to the agency, which made the following three separate requests:
I want a copy of all letters, certified, registered, or regular mail sent from the office of Nelson County Code Enforcement to Jack Hurst 112 Reardon Blvd. Bardstown Kentucky 40004 in August 2007 regarding a water line on Sanders Lane.
1: I am requesting a copy of Nelson County's 502-348-1862 long distance phone bills for the following years 2006, 2007, and 2008.
2: I am requesting copies of all business expenses turned in by Logan T. Spalding for 2006, 2007, 2008.
3: I am requesting copies of all gas receipts turned in by Logan T. Spaulding for the year 2006, 2007, and 2008.
I am requesting via the open records request all the "plan reviews" conducted by Nelson County Code Office for the years 2007 and 2006.
In the agency's May 28, 2008, response to Mr. Brumley's, the agency provided the following response:
Request #1 - Letters -- Enclosed.
Request #2 -- Plan Review Documents -- Enclosed
Request #3 -- A. Phone bill for 348-162 -2006 -- Enclosed.
Phone bill for 348-162 -2007 -- Enclosed
Phone bill for 348-162 -2008 -- Enclosed
On May 28, 2008, Mr. Brumley submitted another request to the agency requesting the following records:
1: I am filing this open records looking for employment records for Logan T. Spaulding. I am looking for a copy of Fiscal Court records the documents the starting date that Logan T. Spalding was hired by Nelson Fiscal Court.
2: This open records request is for copy of time sheets for Logan Spaulding for the years 2005, 2006, and 2007.
3: Request # 3 is for copy of Nelson Fiscal Court records showing vacation time taken off by Logan Spaulding in 2005, 2006, and 2007.
4: Copy of Nelson Fiscal Court payroll records for the years 2005, 2006, & 2007 for Logan T. Spaulding.
We are asked to determine whether the Office of Nelson County Judge Executive properly relied upon KRS 61.872(6) in denying Mr. Brumley's request as overly burdensome or that its intent was to disrupt the essential functions of the agency. It is the decision of this office that the agency failed to satisfy its statutory burden of proof to sustain the evocation of KRS 61.872(6), and thus its denial of the request constituted a violation of the Open Records act.
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.
(Emphasis added.) In an early open records opinion, this office was asked to determine whether repeated requests submitted by an individual to a school district in a five month period constituted an intent to disrupt the district's essential functions, within the meaning of KRS 61.872(6). The Attorney General concluded that they did not, opining:
Repeated requests to inspect the 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. In a later decision, this office reached the same conclusion with respect to fifteen requests submitted to the Transportation Cabinet by an individual in a six day period. OAG 89-79. Anticipating ten more requests, the Cabinet resisted disclosure expressing concern that the records might be used in a subsequent legal action against the Cabinet and that the number, detail, and nature of the requests suggested intent to disrupt its essential functions. The Attorney General concluded that the Cabinet's reliance on KRS 61.872(6) was improper, expressly rejecting that part of the argument that was postulated on the use to which the records would be put. Recognizing that "[a]lthough there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6)," the Attorney General nevertheless concluded in each instance that the public agency had not successfully built its case. 96-ORD-193, p. 5.
In Department of Corrections v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008), the Kentucky Supreme Court discussed the high proof threshold an agency faces to establish the existence of the unreasonable burden "by clear and convincing evidence: "
Although the general policy favors broad availability of public records, the availability is not unlimited. Perhaps the main exception to the general presumption that public records are subject to public inspection is contained in KRS 61.872(6), which provides that an otherwise valid open records request may be denied if complying with it would cause "an unreasonable burden. ..." But a public agency refusing to comply with an open records request on this unreasonable-burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden "by clear and convincing evidence. " 1
The DOC [Department of Corrections] has submitted affidavits purporting to show how burdensome and time consuming it would be for it to sift through the voluminous inmate records to determine what material an inmate making an open records request is entitled to receive and what information ought properly to be withheld for institutional safety or privacy concerns. Although these affidavits are not particularly convincing because they are vague on the subject of how much extra time it would take to comply with inmate requests if we rule in favor of Chestnut, we are satisfied that the task of determining what materials are properly subject to an inmate's open records request is tedious and time-consuming.
However, that does not mean that complying with Chestnut's open records request automatically constitutes an unreasonable burden.
?
Thus, the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. . . .
Although the Office of the Nelson County Judge Executive expresses the good faith belief that Mr. Brumley's requests are unreasonably burdensome and intended to disrupt its essential function, the record on appeal does not contain clear and convincing evidence supporting that belief. There is nothing in the record indicating the difficulty in locating and accessing the records, the amount of time that would be involved in complying with the request, or any other problems that compliance with the request would impose an unreasonable burden. A bare allegation that a request or future request would impose an unreasonable burden on the agency does not meet the requirements of KRS 61.872(6). Accordingly, it is the decision of this office that because the agency has not established by clear and convincing evidence that honoring the request would be unreasonably burdensome, the agency violated the Act in denying the request. Given the apparent volume of Mr. Brumley's requests, the agency might at some point build a successful case under KRS 61.872(6). However, in the appeal before us, the agency has not established such a case.
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.
Distributed to:
Kevin BrumleyDean WattsJohn S. Kelley, Jr.
Footnotes
Footnotes
1 KRS 61.872(6).