Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal and the Attorney General being sufficiently advised, we find that the Oldham County Police Department failed to provide clear and convincing evidence of an unreasonable burden or an intent to disrupt essential functions in relation to Phillip A. Wells' September 12, 2010, request for updated records from May 1, 2010, to September 12 for Chief D. M. Griffin, Lieutenant Colonel W. B. Way, and Officer Justin Flynn. This request was the third in a series of requests submitted by Mr. Wells for the officers' personnel records. The Department partially honored Mr. Wells' earlier requests by providing him with responsive records in October 2009, and May 2010, but stated that it would "no longer respond to [his] request" because "such a request places an unreasonable burden on the Oldham County Police Department to produce often incalculable numbers of widely dispersed and ill-defined public records. " Additionally, the Department quoted that part of KRS 61.872(6) 1 authorizing a public agency to deny requests that are intended to disrupt the agency's essential functions. We find no evidence, clear and convincing or otherwise, in the Department's original or supplemental denials that Mr. Wells' September 12 request imposed an unreasonable burden on the Department or was intended to disrupt its essential functions. Therefore, we conclude that it violated the Open Records Act in denying Mr. Wells' request.
The Oldham County Police Department cannot avoid its duty through a claim of unreasonable burden or an intent to disrupt its essential functions without providing evidence of the actual burden imposed or the disruption of its functions. This office has long recognized that:
KRS 61.872(6) is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request (or a series of requests) is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence.
96-ORD-155, p. 2 (emphasis added). Thus, we have observed:
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. Conversely, we have recognized:
State 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 determining whether an open records request is unreasonably burdensome or intended to disrupt an 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 nonexempt agency records and that of an agency in effectively executing its public function. If a public agency invokes KRS 61.872(6) to support its denial of an open records request, the agency bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it or is intended to disrupt its essential functions Accord, 05-ORD-024, citing 96-ORD-201; 98-ORD-87, and 00-ORD-72; see also 06-ORD-177 (holding that "[a] bare allegation that a request is unreasonably burdensome [or intended to disrupt essential functions] does not satisfy the requirements of the statute").
The Department has produced no such evidence. Mr. Wells apparently wishes to access current personnel records on each of the named officers. He is not permitted to do so by means of a "standing request" for records that do not yet exist. Such requests are disfavored in the law, and public agencies are not required to honor them. See, e.g., OAG 91-78; OAG 92-30; 95-ORD-43; 09-ORD-203. The right to inspect public records attaches only after records have been created, and a public agency may require a separate written application for newly created records as those records come into existence. OAG 90-112. Mr. Wells implemented this rule of law by submitting separate requests for personnel records relating to these officers from the date after his previous request to the date of his current request. Given the prohibition on standing open records requests, he could do nothing else.
Kentucky's Supreme Court recently stated 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. " Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). By the same token, the fact that complying with an open records request will require agency employees to temporarily divert that attention from their normal duties is not sufficiently clear evidence of an intent to disrupt. The Department suggests that Mr. Wells' request implicates an "incalculable number of widely dispersed and ill-defined public records. " We question this statement in light of the fact that the requested records are maintained in the personnel files of the three named employees, and the Department has fulfilled Mr. Wells' requests for earlier personnel records in the past. Because the Oldham County Police Department offers no proof of an undue burden or an intent to disrupt its essential functions, we find that it improperly relied on KRS 61.872(6) in denying Mr. Wells' request and must provide him with the requested records.
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.
Phillip A. WellsLt. Col. W. B. WayCourtney Baxter
Footnotes
Footnotes
1 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.
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