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 Education and Workforce Development Cabinet's Unemployment Insurance Appeals Branch violated the Open Records Act in the disposition of Steve Kepley's November 22, 2008, request for nine categories of records which "he needs to assist [him] with [his] hearing" in the appeal of the decision of his case. For the reasons that follow, we find that the Cabinet's belated response was procedurally deficient and that it failed to meet its statutory burden of proof relative to the invocation of KRS 61.872(6). We affirm its denial of Mr. Kepley's remaining requests.
In his November 22, 2008, request, Mr. Kepley asked for:
1. [A]ll findings for the last year regarding KRS 341.370(2), KRS 341.080(3), KRS 341.390(1), and KAR 1:240 [sic];
2. [A]ll cases referred for criminal prosecution under KRS 341.990(5) during the last year, and the sex, age, and residence of those affected;
3. [C]opies of . . . KRS 341.990(5), KRS 341.370(2), KRS 341.080(3), KRS 341.390(1), KRS 341.415, KRS 341.420(2), 787 KAR 1:110; KAR 1:230 [sic];
4. [With regard to any appeals arising under these statutes] during the last year, the age, sex, and residence of those involved;
5. [C]opies of all cases audited during the week [Mr. Kepley's] case was audited and the outcomes;
6. [C]opy of the first check mailed to [his] address and when it was mailed;
7. A list of when technical services were performed on the Cabinet's system in the last year and the companies that performed these technical services.
Having received no response to his request, Mr. Kepley initiated this appeal on February 18, 2009.
In correspondence directed to this office following commencement of Mr. Kepley's appeal, the Cabinet defended its "denial by silence" of Mr. Kepley's request. The Cabinet explained that his request was misdirected to the Unemployment Insurance Appeals Branch where it was treated as an administrative appeal of a Notice of Determination. Nevertheless, the Cabinet argued, Mr. Kepley was "not prejudiced by the Cabinet's inadvertent failure to respond to his request, because the Cabinet would have been compelled to deny . . . all but [his request for a copy of the first check mailed to him and that part of his request for copies of statutes that implicates regulations promulgated by the Cabinet, 787 KAR 1:110 and 787 KAR 1:230." Noting that Unemployment Compensation records are generally confidential per KRS 341.190(3), the Cabinet denied Mr. Kepley's remaining requests as follows:
1. Request 1 denied per KRS 61.872(6) as "vague and overly cumbersome," "encompassing literally thousands of pages of documents . . . and requiring a substantial number of work hours by staff to locate and copy all such files."
2. Request 2 denied per KRS 61.872(6) as "vague and overly cumbersome" and as an improperly framed request for a list. The Cabinet explained that an estimated 200 cases were referred for criminal prosecution in the previous year, and his request would therefore "encompass thousands of pages of documents, would take a substantial amount of time to compile and copy, and would place an 'unreasonable burden' on the agency." With reference to the request for the sex, age, and residence of those individuals referred for criminal prosecution, the Cabinet denied same as an improperly framed "request for information."
3. Request 3 denied as a request for copies of statutes that "are not records of the Cabinet . . . [or] maintained . . . as separate records." As noted above, the Cabinet provided Mr. Kepley with two administrative regulations which it had promulgated.
4. Request 4 denied as "a request for information" or, alternatively, as "overly burdensome" since every appeal within Unemployment Insurance "will involve at least one of the statutes or regulations" identified in Request 3, constituting tens of thousands of pages and requiring an "inordinate amount of time for multiple staff to assemble and copy."
5. Request 5 denied as excluded from inspection by KRS 61.878(1)(l) incorporating KRS 341.190(3) into the Open Records Act and prohibiting disclosure of "records made by the cabinet in the administration of chapter [341].
6. As noted, Request 6 was honored.
7. Request 7 denied as "too vague. " Because Mr. Kepley did not indicate what "technical service" and "system" to which his request refers, the Cabinet maintained that it could not possibly respond.
In closing, the Cabinet attributed its failure to respond to Mr. Kepley's request to his "own failure to send his request to the 'Records Custodian, ' and the Cabinet's inadvertent, excusable neglect."
Respectfully, we disagree. The Cabinet violated KRS 61.880(1) in failing to respond to Mr. Kepley's request in writing and within three business days. KRS 61.880(1) provides in part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
In its belated response to Mr. Kepley's appeal, the Cabinet does not deny receipt of his request. Instead, the Cabinet maintains that his original request was misdirected to the Unemployment Appeals Branch where it was treated as an appeal of a Notice of Determination notwithstanding the fact that it was identified as a "request for copies of documents under Kentucky's access to public records act." It was incumbent on the Cabinet to insure that the request was forwarded to the official custodian for timely processing and written response or, at a minimum, to promptly notify Mr. Kepley that the Branch did not have custody of the requested records and provide him with the name of the agency's custodian of records. 1 On this issue, we find that Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006) is controlling. There, the Kentucky Court of Appeals held that "delivery to the office of the [agency] was sufficient to trigger [the agency's] obligation," and that to require personal delivery to a particular public official "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged." Public agency inaction is not a viable option under the Open Records Act. Having thus determined that its failure to respond constituted a violation of KRS 61.880(1), we urge the Cabinet to review the cited provision to insure that future responses conform with the requirements of the Open Records Act.
Turning to the Cabinet's argument in chief, we find that it failed to meet its statutorily assigned burden of proof in invoking KRS 61.872(6) in relation to requests 1, 2, and 4, or to provide clear and convincing evidence of an unreasonable burden. In so holding, we are guided by Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), recognizing 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.
In 08-ORD-231, this office observed:
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 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 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). 3 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.
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").
Assuming, arguendo that these remain relevant considerations after Chestnut, the Cabinet offers very little in the way of an estimate of the actual volume of records implicated by Mr. Kepley's request, where or how those records are stored, or the difficulties associated with retrieval, review, and redaction. As noted, "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. " Chestnut at 665. Simply stated, the Cabinet's assertion that fulfilling Mr. Kepley's request "would take a substantial amount of time" is insufficient evidence of an unreasonable burden under the Chestnut standard.
In Chestnut, the Supreme Court briefly recognized that KRS 61.872(3) contains a "particularity requirement" when a requester resides or has his principle place of business outside the county in which the public records are located and requests access by receipt of copies through the mail. Id. at 661. KRS 61.872(3)(b) thus provides:
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.
Mr. Kepley resides outside the county in which the requested records are located. He requested access by receipt of copies through the mail. Since the records to which he requested access in Requests 1, 2, and 4 were not "precisely described," as that term has been construed by this office, 4 and readily available within the Cabinet, we do not believe that it is incumbent on the Cabinet to mail him copies of those records. Instead, the Cabinet may afford him the opportunity to conduct an onsite inspection of records containing the information sought. In contrast to Request 5, the record on appeal is devoid of any suggestion that the records implicated by Requests 1, 2, or 4 are excluded from public inspection. Moreover, permitting Mr. Kepley to conduct an onsite inspection of the records will minimize whatever burden the Cabinet might have faced in mailing copies to him. We therefore find that although the Cabinet did not provide clear and convincing evidence of an unreasonable burden, Mr. Kepley did not describe the records which he wished to access by mail precisely and those records were not readily available within the Cabinet. The Cabinet may, accordingly, discharge its statutory duty by making available for Mr. Kepley's onsite inspection records responsive to his requests 1, 2, and 4.
We affirm the Cabinet's denial of Request 3 for copies of various statutes because the statutes are in the nature of library and reference materials rather than agency records. This office has, for some time, recognized that although statutes may be owned, used, retained, and in the possession of a public agency per KRS 61.870(2), 5 "their disclosure would not enable the public to monitor public agency operations or serve any purpose which underlies the Open Records Act. " 99-ORD-35, p. 4; see also, 00-ORD-130; 01-ORD-165. Accord, Baizer v. U.S. Dept. of Air Force, 887 F.Supp. 225 (N.D. Cal. 1995) (holding that Department of the Air Force's database of U.S. Supreme Court decisions constituted "library reference material," and was not an "agency record" for purposes of a Freedom of Information Act request). Although KRS 61.870(2) does not expressly exclude library and reference materials from the definition of the term "public record," we are unwilling to define the term so broadly as to extend it to all noncopyrighted materials maintained by a public agency thereby opening the floodgates to open records requests for these materials when they are readily available in public libraries and on the internet. See, http://www.lrc.ky.gov/Law.htm. Compare, 09-ORD-026 (involving access to a specific agency policy, as opposed to general reference material, by directingrequester to agency's website).
In addition, we affirm the Cabinet's denial of Request 5 for cases audited during the week Mr. Kepley's case was audited, and the outcome of these cases, on the basis of KRS 341.190(3), incorporated into the Open Records Act by KRS 61.878(1)(l). 6
KRS 341.190(3) was amended in 1990 7 and now provides:
Information obtained from an employing unit or individual and other records made by the cabinet in the administration of this chapter are confidential and shall not be published or be open for public inspection, . . . [.]
It is this broadly worded confidentiality provision that must be deemed applicable to the records identified in Request 5 as "records made by the Cabinet in the administration of [Chapter 341]," and that precludes access except as otherwise specifically provided. Absent citation to express legal authority that is contrary to the Cabinet's position, we defer to its interpretation of the referenced confidentiality provision and affirm its denial of Mr. Kepley's fifth request. Accord, 05-ORD-186.
Finally, we concur with the Cabinet in its view that Mr. Kepley's seventh request satisfies neither the KRS 61.872(2) requirement of a description "adequate for a reasonable person to ascertain the nature and scope of" the record sought, Chestnut at 664, nor the KRS 61.872(3)(b) requirement of a "precise" description. Mr. Kepley does not identify the "system" in which he is interested or the nature of "technical services" to which he refers, and it is by no means self-evident. As the Supreme Court noted with approval in Chestnut:
An open records request should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure.
Chestnut at 663, citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). The Cabinet can neither make disclosure nor assert its reasons for nondisclosure when the request before it is not "definite, specific, and unequivocal," 97-ORD-46, much less "adequate for a reasonable person to ascertain its nature and scope," Chestnut at 661. Mr. Kepley may, of course, resubmit his request for copies of the record sought by describing them with greater precision.
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:
Steve KepleyJames C. MaxsonR. Shannon Morgan
Footnotes
Footnotes
1 KRS 61.872(4) addresses this situation by providing:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
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 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.
4 See, e.g., 97-ORD-46, 99-ORD-210, 03-ORD-179, and 07-ORD-086 (recognizing that "KRS 61.872(3)(b) places a greater burden on persons who wish to receive copies by mail to describe 'in definite, specific, and unequivocal terms,' the desired records").
5 KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
6 KRS 61.878(1)(l) provides:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
7 KRS 341.190(3) formerly made confidential "[a]ll letters, reports, communications, and other matters, written or oral, from employer or worker, to the secretary for human resources or any of its agents, representatives, or employees, or to the Commissioner, or to any board or official functioning under this chapter, which have been written, sent, or made in connection with the requirements and administration of this chapter . . . ." The provision now extends to "records made by the Cabinet in the administration of this chapter . . . ."