Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Oldham County Property Valuation Administrator violated the Kentucky Open Records Act in declining to provide J. Albert Harrison with "clean copies" of the twelve "Vehicle Management Reports" previously released to him "without any of the information redacted. " In failing to cite the applicable statutory exception, KRS 61.872(6) , and briefly explain how it applied to the information being withheld, the PVA violated KRS 61.880(1). Because disclosure of the credit card account numbers in dispute would "compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the" information, this office finds no substantive error in the disposition of Mr. Harrison's request. 95-ORD-121, p. 4.
By letter directed to PVA Ron G. Winters on June 8, 2010, Mr. Harrison advised that in January 2010 Mr. Winters provided him with "copies of twelve (12) 'Vehicle Management Reports' for the three (3) vehicles titled to" his office. According to Mr. Harrison, each of the reports "had the respective vehicle's identification numbers redacted. " Mr. Harrison indicated that "copies of the same type of reports" were given to him pursuant to a previous request, "and the identification numbers" were not redacted; accordingly, Mr. Harrison requested "clean copies of the earlier reports but without any of the information redacted. " Alternatively, Mr. Harrison asked to know "under what part of the statute such action" is allowed.
In a timely written response, Mr. Winters denied Mr. Harrison's request, advising him that "data redacted in the twelve reports you received in January 2010 was credit card numbers and other confidential data. [In t]he reports you recently received, the data that should have been redacted was [overlooked]." Shortly thereafter, Mr. Harrison advised Mr. Winters in writing that his response dated June 10, 2010, did not comply with KRS 61.880(1) and he would await either a "correct response" or "notice of when copies will be available and the corresponding charges for them." By letter dated June 17, 2010, Mr. Winters indicated to Mr. Harrison that his office had "already supplied, in whole, everything that" he requested. Mr. Winters explained that the "only redactions on the previous [statements] were [] account numbers." In responding to the subsequent request for the statements, the "account numbers were given in error." Mr. Winters advised Mr. Harrison that his office would "not reproduce any information" that had already been requested and provided.
By letter dated June 23, 2010, Mr. Harrison initiated this appeal. Mr. Harrison challenged Mr. Winters' failure to "cite the particular section of the law that applies to the denial along with a brief explanation of the exception's applicability." According to Mr. Harrison, there are "three (3) Chevron credit cards used by the PVA office, and the monthly bills from Chevron show the respective charges for which each card was used. The bills do not, however, show that the purchased fuel went into that particular vehicle." Mr. Harrison contended that he did "not need the full account numbers to develop the data for recent purchases, but it is necessary to have the charges assigned to the appropriate vehicle. To do so, I need, at a minimum, the last two digits of the account numbers." Even if Mr. Winters may properly invoke a statutory exception, Mr. Harrison believes that "he must state what that exception is and how it applies to this request."
Upon receiving notification of Mr. Harrison's appeal from this office, Mr. Winters advised that in or around May 2010 Mr. Harrison requested "copies of the last two months [sic] gas (Chevron Credit Card) statements." Mr. Winter's office inadvertently failed to "redact the credit card account numbers from these two statements" as it had "on the previous twelve months [sic] statements that Mr. Harrison" had requested. The statements that Mr. Harrison requested on June 8 had already been provided to him on a previous occasion; accordingly, the PVA declined to send "duplicate information to him." Mr. Winters asserted that Mr. Harrison was incorrect in assuming that he "could use the account numbers to determine what gas [is] being put in each of the three ve[h]icles. " The "Chevron gas cards, " he explained, "are not assigned to a ve[h]icle. The numbers that have been redacted are simply the account numbers for that card. " Mr. Harrison's claim that his office redacted vehicle identification numbers "is simply not true." Because his office inadvertently gave Mr. Harrison the account numbers, Mr. Winters explained, it "had to contact Chevron Bank Services about the breach of security" and is "currently working with them to ensure these account numbers are not used in a frau[d]ulent way."
According to Mr. Winters, employees are not allowed to carry the Chevron Gas Card "and therefore when a car needs gas the employee takes one of the gas cards, purchases gas for that vehicle and immediately bring[s] the card back to the office." The cards are "stored together and picked at random. When an employee purchases gas he pays at the pump just like anyone else and he is not required to go in and sign or give any vehicle identification number to the attendant." Mr. Winters further explained that the only reason his office has more than one card is that "when employees must travel for schools, conference[s, etc.]...we do not want to be left with no way to purchase gas for our other ve[h]icles. "
By way of background, Mr. Winters advised that since Mr. Harrison "decided to run for Oldham County [PVA] and lost his bid for election he has filed numerous open records request[s] with this office" dating back to 2008. Mr. Winters' office "has worked d[i]ligently at answering these request[s]" which have become "a severe disruption to this small office." Mr. Harrison "filed complaints with The Attorney General[']s Office, The Board of Election Finance and contacted the Department of Revenue," Mr. Winters explained, "in an attempt to dis[r]upt this office over the past two years." In his view, "this new complaint is just another attempt" by Mr. Harrison "to dis[r]upt the flow of work in this office." In closing, Mr. Winters advised that Mr. Harrison "has had to be asked to leave our office due to his unpredictable behavior in the past. Most recently he became very hostile toward my Chief Deputy, Barbara Witers[,] at a [l]ocal Board of Tax Appeals meeting. . . [and] the verbal assault was witnessed by a [taxpayer] and several people that were associated with the appeals [proceedings]."
Although the PVA was presumably relying upon KRS 61.872(6) in relaying this factual history, albeit implicitly, this office makes no finding as to whether his office may be able to provide "clear and convincing evidence" that Mr. Harrison's "repeated requests are intended to disrupt other essential functions of the public agency, " 1 in the future, given our conclusion that complying with Mr. Harrison's current request would place an "unreasonable burden" on the agency within the meaning of that provision. The PVA violated KRS 61.880(1) in failing to cite KRS 61.872(6) and briefly explain how it applied to the information being withheld; however, this office finds no error in the final disposition of Mr. Harrison's request with the exception of this procedural violation. Because the account numbers at issue "could be used to circumvent or violate the law," if released to the public, that information was properly withheld. 95-ORD-121, p. 4.
As a public agency, the PVA 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, generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. 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." 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. " (Emphasis added). 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, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208.
In sum, the PVA was required to cite the applicable statutory exception and provide a brief explanation of how that exception applied to the records, or portions thereof withheld per KRS 61.880(1), in order to satisfy his burden of proof under KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232. As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. In other words:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
In responding to both Mr. Harrison's June 8 request and his appeal, the PVA neglected to cite a statutory basis for denial and failed to explain how the exception upon which his office was implicitly relying applied to the credit card numbers. Bearing in mind that public agencies have the burden of proof under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that the PVA violated the Act in failing to comply with the mandatory terms of this provision. Edmondson v. Alig, above, at 858. That being said, this office is compelled to undertake a substantive analysis of the issue presented rather than compound this violation or perpetuate the error committed when his office previously released the numbers by instructing the PVA to release the information requested as disclosure could necessitate an immediate revision of policy or practice in order to eliminate the potential for misuse of the information. See 95-ORD-121.
"Given the potential for improper use of public credit cards, " the Attorney General has expressly recognized "that appropriate precautions" may be taken to ensure their security pursuant to KRS 61.872(6). 07-ORD-172, p. 4, at note 5. In doing so, this office relied upon the reasoning found in 95-ORD-121, just as the Attorney General did in 04-ORD-058. "Although there is no 'catch-all' exception to the Open Records Act for records the disclosure of which would compromise significant agency operations and functions," the Attorney General noted in 04-ORD-058 (affirming nondisclosure of athletic practice tapes of state educational institutions because "disclosure will necessitate an immediate revision of the subject team's strategy, tactics, and plays"), this office has recognized:
that a public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
. . . In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination to a government vault or safe] nondisclosure is warranted if the records could be used to circumvent the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies.
04-ORD-058, pp. 11-13, quoting 95-ORD-121, p. 4 (affirming jail's denial of inmate request for policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); 97-ORD-26 (holding that nondisclosure of Kentucky State Police policy manual was justified on basis of KRS 61.872(6) to extent portions, if revealed, "would enable persons to impede the goals for which the policies and procedures were adopted" or could be used to "circumvent or violate the law"); 97-ORD-129 (affirming drug task force's denial of request for that portion of its manual dealing with the use of confidential informants); 99-ORD-83 (affirming Owensboro Police Department's denial of request for its Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city); 06-ORD-167 (holding that responsive financial records might be subject to redaction on basis of KRS 61.872(6) to ensure nondisclosure of sensitive information, "including account numbers and other identifiers"); 08-ORD-010 (upholding denial of request for videotape of polygraph and portions of related policy on basis of KRS 61.872(6) as release of such examination methods and tactics "would compromise a significant governmental interest or impede important operations"); compare 99-ORD-51 (holding that Revenue Cabinet's reliance on KRS 61.872(6) to deny access to Kentucky Revenue Protest and Appeals Guidelines was misplaced); 99-ORD-131 (holding that police department improperly relied on KRS 61.872(6) in denying access to detective's work schedule).
Although this office has no reason to believe that Mr. Harrison "intends to use the [account numbers] in a subversive manner, we remind [him] that if the [numbers] were released to [him], under the Open Records Act, [the information] would have to be released to any other requester." 04-ORD-245, p. 7. Here, as in 95-ORD-121, this office believes it is "incongruous to attribute to the General Assembly an intention to require public agency revelation of . . . public records which would facilitate" misuse of the requested information and circumvention of the law. Id., p. 5. The security concerns implicated here may not rise to the level of those implicated in 95-ORD-121 (disclosure of portions of Policy and Procedures Manual "affecting the security and safety of inmates, staff, and the public would significantly increase the risk of harm to those individuals and facilitate escape"); however, it could not have been the goal of the General Assembly to require a public agency such as the PVA "to overhaul an existing system each time [the credit card numbers] were requested and released[.]" Id., p. 4. As in 95-ORD-121, and the line of decisions premised upon its reasoning, the Open Records Act "must be given a construction that is reasonable, and promotes the public's interest in security and administrative order." Id., p. 5. To that end, this office concludes that disclosure of the requested account numbers would place an unreasonable burden on the PVA within the meaning of KRS 61.872(6). With the exception of the noted procedural violation, this office affirms the denial of Mr. Harrison's request.
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.
J. Albert HarrisonRon G. WintersDouglas Dowell
Footnotes
Footnotes
1 Mr. Winters indicated that he would be "happy to supply" this office "with complete copies of each and every open records request Mr. Harrison has filed as well as requests that Mr. Harrison has sent to my home and written statements about his behavior in my office as well upon request."
2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).