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 Lexington-Fayette Urban County Council properly relied on KRS 61.872(6) in denying Randy Tobia's September 22, 2008, request for "all emails incoming and outgoing from Tom Blues' city/county email address . . .[, and] any memos, emails, notes, and logs to and from Tom Blues and any city/county attorney . . . from the date Tom Blues took office on 12-31-06 through 9-22-08." For the reasons that follow, we find that although Mr. Tobia's request was broad in scope, the Council failed to demonstrate the existence of an unreasonable burden in producing the requested records, by clear and convincing evidence, and its denial therefore constituted a violation of the Open Records Act.
In a response dated September 22, 2008, Council Records Custodian Vicki Steele advised Mr. Tobia that his request "falls into the category of a blanket request because [he] ask[ed] for any and all emails, memos, notes, and logs. " Relying on 00-ORD-132, she explained:
The Attorney General has stated that as a precondition to inspection, a requesting party must identify with a [sic] reasonable particularity those documents he wishes to review. The Attorney General has stated that a request for any and all records which contain a name, term, or phrase is not a properly framed open records request and that it generally need not be honored.
In closing, Ms. Steele expressed the view that any attempt to fulfill his request "would require enumerable employee hours."
Shortly after he received the Council's response, Mr. Tobia initiated this appeal. 1 Having reviewed the record on appeal, we find no evidence, clear and convincing or otherwise, of an unreasonable burden. In light of the Kentucky Supreme Court's opinion in
Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), holding that "there is no statutory particularization requirement in KRS 61.872(2)," id. at 664, and that "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, " id. at 665, we find that 00-ORD-132 no longer represents persuasive authority and hereby withdraw those portions of the decision in which a particularity requirement was superimposed on the law.
Department of Corrections v. Chestnut, above, forever changed the landscape of open records analysis as it relates to KRS 61.872(2) 2 and KRS 61.872(6). Before Chestnut, this office had recognized an agency's general right 3 to deny a request that was not couched in reasonably particular terms. After Chestnut, the Court put this office, and all public agencies governed by the Act, on notice that no such requirement can be read into law. In Chestnut, the requester sought access to a "copy of [his] inmate file excluding any documents that would be considered confidential [sic]." The Court determined that Chestnut's request satisfied the standard found at KRS 61.872(2), concluding that the request "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. In so holding, the Court noted that he was required to do nothing more than describe the record sought, and "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . he had never seen." Id. The Court expressly declared that:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. And it is obvious that the General Assembly chose only to require the record to be described. It did not add any modifiers like particularly described.
Chestnut at 661.
The Court went on to reject the Department of Corrections' argument that satisfaction of the inmate's request would impose an unreasonable burden on the agency within the meaning of KRS 61.872(6). 4 The Court began by observing that "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. '" Noting that the affidavits submitted by DOC were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . .," the Court nevertheless stated that it was "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but that it was not persuaded that the request "automatically constitute[d] an unreasonable burden. " Id. at 664. Continuing, the Court determined that the "winnowing process required of the DOC," to separate excepted materials and make nonexcepted materials available did not "rise to the level of an unreasonable burden under KRS 61.872(6)," inasmuch as this is an existing statutory obligation under KRS 61.878(4). 5 Id. at 665.
Additionally, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure," and therefore does not provide a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor, the Court concluded, did the agency's "method of organizing its files . . . ." Id. In sum, the Court held that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. citing KRS 61.8715 (stating that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes").
Records management and maintenance practices are governed by the LFUCG Records Schedule and the Local Government General Records Schedule developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530 and promulgated into regulation at 725 KAR Section 1:061. The weight of written materials implicated by Mr. Tobia's request, namely, memoranda and notes sent or received by Mr. Blues, both electronic and hard copy, as well as logs maintained by Mr. Blues, fall within the parameters of:
Record Series L4954, Official Correspondence - a permanent record;
Record Series L4955, General Correspondence - a record that can be destroyed after two years;
Record Series L5866, Nonbusiness Related Correspondence - a record that should be immediately destroyed; and
Record Series L4956, Informational and Reference Material - a record with an indefinite retention period that can be destroyed when it is no longer useful.
Assuming that Mr. Blues and the Council have properly discharged their records management responsibilities, the majority of still extant records will consist of official correspondence that was permanently retained and general correspondence that was retained for a two year period. Assuming, arguendo, that these remain relevant considerations after Chestnut, the Council offers no estimate of the volume of records implicated by the request, where or how those records are stored, or the difficulties associated with retrieval, review, and redaction of the records. As noted, "the obvious fact that complying with open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Chestnut, above at 665. Simply stated, the Council's assertion that fulfilling Mr. Tobia's request "would require enumerable employee hours" is no evidence at all. We therefore find that the Lexington-Fayette Urban County Government violated the Open Records Act in denying Randy Tobia's September 22 request on the basis of KRS 61.872(6) as construed in Department of Corrections v. Chestnut, above.
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 The Council's October 8, 2008, supplemental response to Mr. Tobia's appeal, largely mirrored its initial response.
2 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 But see, e.g., 03-ORD-012 and 04-ORD-028.
4 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.
5 KRS 61.878(4) provides:
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.