Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Cumberland violated the Kentucky Open Records Act in failing to issue a written response upon receipt of Carl Hatfield's November 12, 2009, written request for specified records concerning the Cumberland Police Department and Officer Mike Nunley in particular, and in ultimately denying his request on the basis of KRS 61.872(6). By failing to issue a written response to Mr. Hatfield's request within three business days, the City violated KRS 61.880(1) . Inasmuch as the City has not provided clear and convincing evidence that Mr. Hatfield's "repeated requests are intended to disrupt other essential functions of the public agency" or that complying with his request would unreasonably burden the City, the City has failed to satisfy its burden of proof relative to KRS 61.872(6). In sum, the City's response was procedurally deficient and substantively incorrect.
By letter directed to Mayor Loretta Cornett on November 12, 2009, Mr. Hatfield requested the following:
1. A copy of Officer Mike Nunley's pay records since August 1, 2009 through November 13, 2009[;]
2. A copy of any authority that authorized the new position of Assistant Chief of Police which is different from the authorized position listing contained in Ordinance 391[;]
3. If the above records are not made available, I request a written response explaining why the provisions of the Open Records [Act] cannot be complied with.
Having received no response, Mr. Hatfield reiterated his previous request in a letter dated November 19, 2009, but hand-delivered on November 20, 2009, advising the Mayor that a response was required within three business days, and that if he did not receive a response by November 23, 2009, he would initiate an Open Records appeal. 1 By letter dated November 27, 2009, and received in this office December 1, 2009, Mr. Hatfield did exactly that. 2
Upon receiving notification of Mr. Hatfield's appeal from this office, City Attorney S. Parker Boggs responded on behalf of the City as follows:
According to the Affidavit of the Mayor [attached to his response], the Mayor denied Carl Hatfield's request because she believed that Mr. Hatfield's repeated requests were intended to disrupt essential functions of the [C]ity. KRS 61.872(6); OAG 83-386. Pursuant to [05-ORD-121], "[t]here is no limitation on the number of requests that an applicant may submit to the public agency for access to records. However, the public agency may establish a pattern of conduct where the repeated requests are shown to have the effect of harassing the public agency. "
Mr. Hatfield is currently a City Council member and a former Mayor of the City of Cumberland. Mayor Cornett believes that Mr. Hatfield is simply trying to be a thorn in her side and in the side of her administration.
Mr. Carl Hatfield has made 40-50 requests for documents this year. The City of Cumberland has honored most of the requests made by Mr. Hatfield. These numerous requests are made solely to disrupt essential functions of the [C]ity.
Mr. Hatfield frequently appears at the drive-thru window which is used for individuals paying their [C]ity utility bills merely to check up on the [C]ity employees. These same three (3) female clerks were also his employees when he was Mayor in 2005-2006. Mr. Hatfield asks who is not paying their utilities, requesting names of those individuals. It appears he is on a "witch-hunt" for individuals with delinquent utilit[y accounts].
Mr. Hatfield has filed numerous appeals to the Attorney General's [O]ffice concerning alleged open records requests and alleged open meetings violations. Mayor Cornett believes that Mr. Hatfield is using the Attorney General's [O]ffice for his own political gain to make her and her administration look bad. 3
By letter dated December 9, 2009, Mr. Hatfield disputed the City's position as follows:
. . . Any and all requests that I have made as a citizen or as a member of the Cumberland City Council have been absolutely legal and justified. My only intent being to fulfill the duties and responsibilities bestowed upon a member of the legislative body when they should determine that problems within the [C]ity exist. When allowed to ask a question or present a problem during the meetings the response I get is "I'll get back to you on that." She will not provide any information that I ask for during [C]ouncil meetings.
. . . Regardless of what Mayor Cornett believes, my efforts are toward improving a poorly administrated city government. There are video tapes of meetings that would confirm my statements.
. . . I have requested open records a maximum of six times this year, and each request was not honored in compliance with the Open Records Law[]. . . .
. . . [In o]ne instance a delinquent account was reported to me. I asked the billing clerk to check it, she did and stated the account was $ 1,500.00 delinquent and was still active. She had the account disconnected and the [M]ayor called the responsible person [on] the account, informed him that I had reported his account delinquent. The [M]ayor asked that I come to [C]ity [H]all for some reason and when I got there the owner of the account and one other individual was [sic] waiting for me. We had words and threats were made.
. . . Mayor Cornett has demonstrated complete ignorance of [C]ity ordinances, Kentucky Revised Statutes, and Federal Law, and the opinions of the Kentucky Attorney General's Office. . . .
Because the City has not provided any objective proof in support of its claim that Mr. Hatfield's "repeated requests are intended to disrupt other essential functions," rather than being intended to "fulfill the duties and responsibilities bestowed upon" him as a member of the City Council, nor has the City established with clear and convincing evidence that complying with his current request would unreasonably burden the City, as required to successfully invoke KRS 61.872(6), the City violated the Act in denying Mr. his request. In addition, the City violated KRS 61.880(1) in failing to issue a written response citing the applicable statutory exception and briefly explaining how it applied within three business days of receiving Mr. Hatfield's written request.
As a public agency, the City is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records. 4 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency " shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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. " (Emphasis added.) A "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). See 05-ORD-134, pp. 3-5. Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exception to this general rule is found at KRS 61.872(5), which the City did not invoke. 02-ORD-165, p. 3. As the Attorney General has consistently recognized, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failing to respond in a timely and proper fashion, as the City did here, constitutes a clear violation of KRS 61.880(1). To avoid future procedural violations, the City should issue a written response, within three business days of receiving a request, including a statement of the specific exception(s) authorizing the withholding of the records, and a brief explanation of how the exception(s) applies to the records withheld, if any.
This office has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 05-ORD-152, p. 5. Nor has "clear and convincing evidence" been presented in this case. Pursuant to KRS 61.872(6):
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.
Early on, this office was asked to determine whether repeated requests made by an individual to a school district in a five-month period adequately demonstrated an intent to disrupt the district's essential functions within the meaning of this provision. In holding that sufficient evidence had not been presented, the Attorney General reasoned as follows:
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. However, this office had previously recognized that "[s]tate 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 a later decision, this office reached the same conclusion as in OAG 77-151 with respect to fifteen requests made to the Transportation Cabinet by an individual in a six day period. OAG 89-79. Anticipating ten more requests, the Cabinet resisted complying due to a concern that the records might be used in a subsequent legal action against the Cabinet, arguing that the number, detail, and nature of the requests suggested an intent to disrupt its essential functions. Id., p. 1. In that decision, 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 for which the records were requested. Id., p. 2. In summarizing the relevant inquiry, the Attorney General subsequently observed:
In determining whether a series of open records requests is intended to disrupt a public agency's essential functions, 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. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests . . . are intended to disrupt its essential functions.
98-ORD-130, pp. 5-6. In the latter decision, this office concluded that because the requester had received written confirmation from the agency that his request would be honored on a date certain, and the agency failed to meet its own deadline, "we [could] not say that [the requester's appeal to the Attorney General] was filed in bad faith, or that his subsequent records requests [were] intended to disrupt [the agency's] essential functions." Id. at 6; see also, 93-ORD-72 (holding that investigative reporter's repeated requests into public agency's financial operations was "a function of the restrictions which were placed on him in inspecting the records rather than a malicious intent to harass the [agency]").
Nevertheless, this office has declared on several occasions that although there is no limit on the number of requests and subsequent appeals that may be submitted, "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). It is for the public agency to build the case. " 96-ORD-193, p. 5 (emphasis added); 05-ORD-152 (Office of Charitable Gaming improperly relied on KRS 61.872(6) in denying single request for documents relating to "a handful" of charitable organizations merely because requester was a known critic of the OCD and the parties had previously entered into a Master Settlement Agreement when OCD presented no evidence of abusive conduct or intent beyond a bare allegation that his intent was to disrupt essential functions rather than continue monitoring functions of the agency); 99-ORD-130; 01-ORD-124; compare 02-ORD-230 (affirming City of Richmond's denial of broadly worded request which, in conjunction with requester's "past pattern of conduct and conviction for harassing communications" aimed at City employees, validated City's position).
In
Department of Corrections v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008), the Kentucky Supreme Court discussed the intentionally high burden of proof that a public agency faces in attempting to establish that complying with a request will place an unreasonable burden on the agency or that repeated requests are intended to disrupt other essential functions of the agency:
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. " 5
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 City has emphatically argued that Mr. Hatfield's requests are unreasonably burdensome and/or intended to disrupt its essential function(s), the record on appeal lacks clear and convincing evidence to substantiate that assertion. There is nothing in the record indicating the difficulty in locating and/or accessing the records, the amount of time that complying with the request would require, or any other specific indications that compliance with the request would impose an unreasonable burden. A bare allegation that a pending request or a future request will impose an unreasonable burden on the agency does not satisfy the requirements of KRS 61.872(6) nor do repeated requests amount to harassment standing alone. With regard to Mr. Hatfield's alleged intent to disrupt essential functions by submitting multiple requests during the past year, the record is equally unpersuasive. Mayor Cornett indicated her belief that Mr. Hatfield's "repeated requests are shown to have the effect of harassing the [C]ity [C]lerk and [M]ayor" and "are intended to be disruptive," but offered nothing objective in support of that belief. Rather, the Mayor alleged that Mr. Hatfield "has made 40-50 requests for documents this year," a number which Mr. Hatfield disputed and which, again, is not determinative standing alone. 6
Mayor Cornett also reiterated her contention that said "numerous requests are made solely to disrupt essential functions of the [C]ity. " Although Mayor Cornett may have a good faith belief that Mr. Hatfield "is simply trying to be a thorn in [her] side" and that his actions constitute "purely political sabotage," the record simply does not contain any evidence of such a motivation beyond the disputed number of requests, the unsubstantiated claim that he "frequents the drive-thru window which is used for individuals paying their utilities" to "check up on [C]ity employees," and the assumption that he is on a "'witch-hunt'" for those individuals with delinquent accounts.
To the contrary, Mr. Hatfield prevailed at least partially in each of the appeals that he initiated against the City of Cumberland under the Open Records Act during 2009, including the instant appeal, which lends credibility to his assertion that his requests were not solely motivated by an intent to disrupt essential functions of the City, but rather to fulfill his responsibilities and to improve how the City's government functions. 7 Although the City may at some point build a successful case under KRS 61.872(6), it has not done so here. 8
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.
Carl HatfieldLoretta CornettRobin SmithSteven Parker Boggs
Footnotes
Footnotes
1 Mr. Hatfield further advised that according to the Tri-City News, Officer Mike Nunley of the Cumberland Police Department is now the Assistant Chief of Police. According to Mr. Hatfield, "the City of Cumberland does not have an [A]ssistant [C]hief of [P]olice position authorized. Nor has a pay and classification plan been presented to the [City Council] in a legally convened meeting to justify authorizing the position which is required before advertising [for] and select[ing] a person to fill the position."
2 According to Mr. Hatfield, Mayor Cornett telephoned him on November 23, 2009, to advise that she would not provide him with any documents. The City does not deny this allegation. A verbal response does not satisfy the requirements of KRS 61.880(1).
3 Because Mr. Boggs essentially paraphrased Mayor Cornett's affidavit in his response and repeated sections of it verbatim, setting forth the contents of the affidavit is unnecessary.
4 In Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals expressly recognized that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." KRS 61.878(5) provides that statutory exceptions codified in that section "shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." In other words, the exchange of information/records between the City and Mr. Hatfield is desirable if not mandatory anytime that a legitimate governmental need is being met.
5 KRS 61.872(6).
6 The number of written requests probably falls between six and the City's estimate of 40-50 owing to verbal requests being counted in that figure, etc.
7 See 09-ORD-036 (City subverted intent of Act within meaning of KRS 61.880(4) by refusing to accept request by mail or facsimile and requiring use of its own form); 09-ORD-054 (City subverted intent of Act by disclaiming custody and control of employee timesheets and consequently failing to afford requester timely access to records); 09-ORD-137 (City violated Act to extent it failed to respond to requests or provide access to records concerning City finances); 09-ORD-206 (Mayor violated KRS 61.880(1) in failing to cite statutory exception and explain how it applied to records being withheld but properly denied access to unapproved minutes of Council meeting).
8 See 09-ORD-136 (nothing in record on appeal demonstrated that requester was abusing the process or disrupting essential functions of City of Mt. Vernon other than statement he made "more than one request per week" and "'bare allegation' of some 'reason to believe'" he intended to disrupt essential functions).