Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the North Oldham Fire Protection District violated the Kentucky Open Records Act in the disposition of Peter F. Neidhardt's April 4, 2011, request for nineteen (19) categories of information and records, including audits, contracts, payroll and training records, inspection reports, and other financial and operational records. The District partially complied with KRS 61.872(5) in providing a "detailed explanation" of the reason for the delay in providing access to records responsive to items one (1), two (2), three (3), and six (6), but failed to provide the specific "place, time, and earliest date" on which the records would be accessible. 1 It cannot indefinitely postpone access to existing nonexempt public records; however, as in 09-ORD-106, the District may require Mr. Neidhardt to conduct on-site inspection of records potentially responsive to items 1-3 and 6, and the remainder of his request, prior to providing copies per KRS 61.872(3)(b). When viewed in light of
Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the record on appeal does not establish by "clear and convincing evidence" that doing so would place an unreasonable burden on the District. 2
In addition to items 1-3 and 6, to which the Department did not deny access, but impermissibly delayed access indefinitely, as explained below, Mr. Neidhardt requested the following records which "are not only in various locations in the firehouse as you have described before, but are also in several computers located conveniently around" the fire station, officers' quarters, etc.":
4. [A]ny and all payments made in the last five years to any and all persons under the new category "Administrative Volunteer[,]" includ[ing] any year-end incentives and bonuses to form a more precisely described question;
5. [A]ny and all personal service or consulting contracts issued by the [District] or the [Department] over the last 15 years[,] including amount paid, specific services provided and to whom it [sic] was paid;
7. [A] complete breakdown of any out-of-station training cost[s], and list of individuals attending any training seminars, Chiefs' conventions or fire schools and hours earned by each individual attending for the past 10 years;
8. [C]opies of audits and inventories for the last 15 years and any and all correspondence with said auditors;
9. [A]ll payroll records for paid staff for the last 15 years;
10. [T]raining records and hours for all members for the last five (5) years;
11. [T]raining reimbursement payments for the last 10 years;
12. [A]ll fuel purchases and reimbursement records to any and all individuals for the last 12 years, including vehicle ID, mileage, purchaser ID and location;
13. [C]redit card records for all department credit cards for the last 12 years;
14. [R]ecords of any and all expense reimbursements for the last 10 years;
15. [A]ctive membership rosters as of July 1 for the last 10 years;
16. [A] list of all fire trucks (apparatus), command vehicles, trucks, SUVs and autos, boats and trailers purchased in the last 15 years (including those donated to the [D]epartment)[, including] the original purchase price, original maintenance assessment, and cost of repairs and maintenance and final disposition of and selling price for each individual fire truck, command vehicle, truck, SUV, auto, boat and trailer;
17. [R]ecords of employee evaluations for the last 10 years;
18. [R]ecords for fire safety and prevention classes taught in the last 5 years in area schools within the [D]istrict; [and]
19. [C]opies of all fire inspections made in the [district] by the [Department] in the last 10 years.
The District received Mr. Neidhardt's request on April 7, 2011, and Chairman Robert H. Martin issued a timely written response on April 12, 2011, initially advising that an estimated 144 pages of documents were responsive to each of items 1, 2, and 3, of his request, for a total of $ 14.00 (.10 [cents] per copy) per item, and that an estimated 1,250 pages were responsive to item 6, for each of the 20 years requested, for a total of $ 2,500.00 (.10 [cents] per copy). Chairman Martin further noted that the "North Oldham Fire Department has one (1) administrative assistant who works seven (7) hours per day for three (3) days per week for a total of twenty-one (21) hours per week to perform essential administrative requirements of the [District], including bookkeeping, payroll, volunteer incentive pay, filing, and other essential Fire Department business." According to Chairman Martin, it is "impossible to schedule the Administrative Assistant more than thirty (30) minutes per week to be taken away from essential Fire Department business." Upon receipt of the copying fee, Chairman Martin continued, "the Administrative Assistant will begin the research and copying in regard to Requests (# 1), (# 2), (# 3), and (# 6) on a weekly, thirty (30) minute basis, unless an emergency or urgent KRS Chapter 75 Fire Protection District obligations prevent [sic] and will continue until completed." He further observed that, "[i]n the unlikely event additional time becomes available that does not take away from Fire Department business or the research and copying goes faster than estimated, the work may be completed sooner." Given the estimated 20 file cabinets and 100 storage boxes implicated, Chairman Martin estimated that it would take 40 hours "to determine what documents actually exist."
Next, Chairman Martin observed that item 4 of the request "is unknown or cannot be identified as [F]ire [D]istrict documents." Quoting the language of KRS 61.878(1)(a) without explanation, 3 Chairman Martin denied access to item 17. He further asserted that the remaining items "place an unreasonable burden to produce the records because of the time involved and limited personnel to search the requested documents contained in an estimated 6,000 file folders contained in 20 file cabinets and 100 storage boxes" although upon fulfilling items 1-3 and 6 of the request "those requests may be considered and addressed specifically." Parroting the language of KRS 61.872(6), upon which the District implicitly relied, 4 Chairman Martin denied access, citing those items "as presenting clear and convincing evidence of repeated requests that are intended to disrupt essential functions of the [Department]." 5 Noting that his April 4 request is only the second request under the Open Records Act that he "ever submitted" to the District, the first being in January 2009, Mr. Neidhardt initiated this appeal shortly thereafter.
Upon receiving notification of Mr. Neidhardt's appeal from this office, Maurice A. Byrne, Jr., legal counsel for the District, responded directly to Mr. Neidhardt on behalf of his client, with a copy to this office, initially observing that the District has not denied his request. Because Mr. Neidhardt "rejected the proposal" of the District to mail records in response to items 1-3 and 6, Mr. Byrne noted that offer "is rescinded and KRS 61.872(3) inspection at the agency will be required following a KRS 61.880 determination." Mr. Byrne then observed that "KRS 61.872(3)(a) inspections will be schedule[d] on days and [at] times are [sic] not to interfere with the essential functions of the [District]." 6 Elaborating as to how many files in how many different locations are implicated relative to items 1-3 and 6, and how much time would be required to make copy, redact and refile the records, Mr. Byrne reiterated that the District "did not and does not refuse to allow the KRS 61.872 inspection, but in its KRS 61.880(1) " response, it "presented an estimate of the number of pages (25,432) involved and the costs for copying ($ 2,542.00) based upon the April 4, 2011, request for 'copies'."
Citing KRS 61.872(6), Mr. Byrne then reiterated Chairman Martin's assertion that honoring the remainder of the request, with the noted exceptions of items 4 and 17 (nonexistent and exempt, respectively), would place an unreasonable burden on the District. By letter directed to this office on May 5, 2011, Mr. Byrne briefly summarized his client's position, asking this office to dismiss the appeal and instruct Mr. Neidhardt to "proceed with a reasonable KRS 61.872(2) request and public documents will be provided pursuant to KRS 61.872(3)." Mr. Neidhardt replied, asserting that he only requested what the local Commonwealth['s] Attorney and the Attorney General's Special Prosecution Division recommended."
Although Mr. Neidhardt's request is unquestionably voluminous, and separating the excepted material per KRS 61.878(4) will certainly be "time-consuming and tedious work," neither this required "winnowing process" nor the agency's "method of organizing its files . . ." is clear and convincing evidence that compliance would constitute an unreasonable burden. Chestnut, above, at 665-666. Having limited personnel with other duties the agency deems more "essential" is an equally impermissible basis for invocation of KRS 61.872(6) as, contrary to the District's apparent belief, compliance with provisions of the Open Records Act "is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5; see 11-ORD-042 (duty to respond to requests and to "afford the requester timely access to the records identified in this request, is as much of a public servant's duty as any other essential function"). As previously indicated, the District is entitled to require inspection prior to providing Mr. Neidhardt with copies of potentially responsive records per KRS 61.873(b), and has agreed to do so; however, the agency must provide Mr. Neidhardt with timely access. The District cannot produce nonexistent records (item 4) for inspection or copying, nor must it comply with a request(s) for information (items 7, 12, and 16). Absent specific facts to justify disclosure of the requested evaluation (item 17), the District properly denied access per KRS 61.878(1)(a); however, in light of the statutory mandate found at KRS 61.871, and particularly the principles announced in Chestnut, above, this office must conclude that it failed to satisfy the high evidentiary standard of KRS 61.872(6) in denying the rest of the request in its entirety.
In 09-ORD-106 (In re: Peter F. Neidhardt/North Oldham Fire Protection District), at pages 4-6, the Attorney General engaged in a detailed analysis of KRS 61.872(5), the only exception to KRS 61.880(1), upon which Chairman Martin implicitly relied in responding to items 1-3 and 6 of Mr. Neidhardt's request; accordingly, this office will not unnecessarily lengthen the instant decision by summarizing the relevant and well-established law again here. A copy of 09-ORD-106 is attached hereto and incorporated by reference. The District failed to expressly invoke KRS 61.872(5), and neglected to specify a date when the records would be available for inspection. Given the breadth of Mr. Neidhardt's request, and the apparent difficulties associated with locating, retrieving and redacting the records (which may be partially attributable to its recordkeeping practices), a reasonable extension of the KRS 61.880(1) time frame of three business days to locate and release the records was justified; however, the District is not permitted to postpone access indefinitely, and may not rely on the limited availability of its assistant or the fact that she is also responsible for "bookkeeping, payroll, volunteer incentive pay, filing, and other essential Fire Department business." See 02-ORD-165 (neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records) ; 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff" ). "It is incumbent on [the District], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. See 05-ORD-064. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." 01-ORD-140, p. 3, quoting
Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999).
"KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38, p. 7(original emphasis). The omission of this information "renders the response defective." 06-ORD-176, p. 5. Accordingly, the District must immediately advise Mr. Neidhardt when he will be notified that any existing records which may be responsive to items 1-3 and 6 of his request will be available for inspection. Id. "Absent an unforeseen emergency, that commitment must not yield to the press of other business." 01-ORD-38, p. 8.
As previously indicated, the District is entitled to require Mr. Neidhardt to conduct on-site inspection of any existing records which are potentially responsive to items 1-3 and 6 (and the remainder of) his April 4 request. On this issue, the analysis contained at pgs. 7-9 of 09-ORD-106, above, is controlling. "In sum, the Open Records Act contemplates access to records 'by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. '" 09-ORD-106, p. 8, quoting 03-ORD-067, p. 4. Thus, "a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies." Id. As before, "it appears that Mr. Neidhardt resides (and presumably also works) in Goshen, Kentucky; the District is also located in Goshen, Kentucky. Accordingly, Mr. Neidhardt does not satisfy the threshold requirement of KRS 61.872(3)(b), and the District may require him to conduct on-site inspection of records which are potentially responsive prior to furnishing copies." 09-ORD-106, p. 8; see 08-ORD-132. The District is not permitted to "rescind" its "proposal" of mailing copies, but is authorized under KRS 61.872(3)(b) to require prior inspection.
With regard to items 7, 12, and 16 of the request specifically, the District is not required to provide a "breakdown" or compile a list if no such records exist. On this issue, the analysis contained at pages 6-7 of 09-ORD-106, above, is controlling. In sum, the Open Records Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4, quoting 96-ORD-251. Rather, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. See KRS 61.871, KRS 61.872(1), and KRS 61.872(2). As before, the District is only required to make available for inspection, "during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5; 09-ORD-106.
With regard to item 4 of the request, in asserting that such records are "unknown" and "cannot be identified" as records of the District, presumably Chairman Martin was indicating that no such records exist in the custody or control of the agency. This office has long recognized that a public agency cannot produce nonexistent records for inspection or copying. Rather, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist, as the District did, albeit imprecisely, in this case. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect in 1994. To satisfy their burden of proof under KRS 61.880(2)(c), public agencies must offer some kind of explanation for the nonexistence of the requested record(s) at a minimum. The District's response was deficient in this regard. However, in the absence of a prima facie showing to the contrary, as required under
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), this office must affirm the District's denial as to item 4 in accordance with prior decisions, including 07-ORD-188, a copy of which is attached hereto and incorporated by reference, given that Mr. Neidhardt has not cited, nor is this office aware of any statute, regulation or case law mandating that such records be created or maintained. 7 95-ORD-96, p. 7.
In denying access to item 17 (requested evaluations), the Department merely quoted the language of KRS 61.878(1)(a) without any explanation. The law regarding application of KRS 61.880(1), requiring public agencies to cite the applicable statutory exception and include "a brief explanation of how the exception applies to the record withheld ," is well-established. (Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed that "[t]he 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). The District's initial and supplemental responses were clearly deficient in this regard as well. A "bare assertion" regarding the basis for denial is not sufficient under KRS 61.880(2)(c). Nevertheless, "in the absence of [any] specific facts indicative of a public interest in disclosure of the requested performance evaluation[s] that outweigh[] the privacy interest of the individual[s] in [their] evaluation[s]," this office affirms the District's denial in accordance with
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006) and our decisions applying it, such as 09-ORD-150 and 10-ORD-096, copies of which are attached hereto and incorporated by reference.
The remaining question is whether the District has demonstrated, by clear and convincing evidence, that complying with the rest of Mr. Neidhardt's request would place an unreasonable burden on the agency within the meaning of KRS 61.872(6). At issue in Chestnut was a request by an inmate for a "copy of [his] inmate file excluding any documents that would be considered confidential [sic]." In determining that Chestnut's request satisfied the standard of KRS 61.872(2), the Court observed that it "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. at 661. The Court further 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. As noted, the standard for on-site inspection, which is applicable on the facts presented, is less demanding than the standard for inspection by receipt of copies through the mail. In rejecting the Department of Corrections' argument regarding KRS 61.872(6), the Court noted the "high proof threshold" of KRS 61.872(6). Id. at 664. Finding that 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 was nevertheless "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but 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)," as that is an existing statutory obligation under KRS 61.878(4). Id. at 665.
Rejecting the contention that it constituted an "undue hardship to comply with inmate requests such as Chestnut's because each inmate has numerous 'files,' which may be physically located at more than one spot across the Commonwealth," the Court noted that the DOC's "method of organizing its files is clearly beyond our purview," but suggested that it could "reorganize its materials in such a manner as to more easily facilitate open records review by inmates, the general public, and DOC personnel. " Id. at 665. In addition, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure, " and concluded that the fact "many inmates' files, such as Chestnut's, are voluminous" does not constitute a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor did the agency's "method of organizing its files . . . ." Id. In sum, the Court held that a public 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 (To provide accountability, "public agencies are required to manage and maintain their records according to the requirements of these statutes").
Applying the guidelines of Chestnut here, this office is unable to find in favor of the District. In denying access to items 5, 7, and 8-19 of Mr. Neidhardt's request as a whole on the basis of KRS 61.872(6), the District initially failed to even cite that exception and offered no specific evidence; in fact, no attempt was made to even identify how or why compliance would place an unreasonable burden on the agency as to each separate item. The District cured the procedural deficiency on appeal, but merely reiterated in support of its denial that "because of the time involved and limited personnel to search the requested documents in an estimated [6,000] file folders contained in [20] file cabinets and [200] storage boxes," complying with all of those items collectively would constitute an unreasonable burden. Some of this perceived burden would not exist if the District was properly maintaining all records in accordance with applicable records retention schedules. For example, the applicable retention period for records responsive to items 12, 13, and 14 is only three (3) years; 8 accordingly, the District would not be required to produce records dating back 10 or 12 years if those records had been properly destroyed in the normal course of business. Likewise, records responsive to item 19 have a five (5) year retention period rather than the requested ten (10). 9 Although its methods of organizing its files are beyond our purview, and the District belatedly attempted to estimate the volume of records implicated, it did not identify the specific difficulties associated with review and redaction of the records or where and how those records are stored, even assuming that any of those considerations are still relevant after Chestnut. 08-ORD-231, p. 5. The District's apparent failure to properly manage at least some of the records which remain at issue certainly undermines the credibility of its position relative to KRS 61.872(6).
Neither the voluminous nature of the request nor "any inefficiency in its own internal record keeping system" is "clear and convincing evidence" that would justify invocation of KRS 61.872(6). The Department's "method of organizing its files" and its existing statutory obligation to separate the excepted material per KRS 61.878(4), upon which it primarily relies in addition to its other "essential business," do not "rise to the level of an unreasonable burden under KRS 61.872(6)." The need to "separate confidential documents from nonconfidential documents [cannot] serve as a basis for denying a request under KRS 61.872(6)." 00-ORD-180, p. 7. Given the high evidentiary threshold of KRS 61.872(6), as construed in Chestnut, this office concludes that the District cannot evade its duties under the Open Records Act by merely claiming that Mr. Neidhardt's request was improperly framed and is unreasonably burdensome; instead, the District must "expend reasonable efforts to identify, locate, redact, and make available for inspection all existing nonexempt records" which are responsive in a timely manner. 06-ORD-177, p. 6. "[T]he 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.
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:
Peter F. NeidhardtRobert H. MartinMaurice A. Byrne, Jr.
Footnotes
Footnotes
1 These requests were for copies of "all checks issued to Deputy Chief David Stoltz" in the past 12 years, "any and all payments made to Mr. Ray Simpson for legal services, consulting and recording secretarial services," including contracts, for the past 30 years, "any and all payments made to Mr. Karl Bergklint," including all checks for firefighter reimbursement and those issued to him for "consulting and financial advisement" in the past 15 years, and copies of "any and all insurance contracts" purchased by the District or the Department over the past 20 years, respectively.
2 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.
3 This failure to briefly explain how KRS 61.878(1)(a) applies to the records being withheld constituted a violation of KRS 61.880(1).
4 The failure to cite this purportedly applicable statutory exception constituted a violation of KRS 61.880(1).
5 Early on, this office was asked to determine whether multiple requests by an individual to a school district in a five month period demonstrated the required intent to disrupt the district's essential functions within the meaning of KRS 61.872(6). The Attorney General held as follows:
Repeated requests to inspect the 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; see also OAG 89-79. Two requests in a two year period hardly demonstrate that Mr. Neidhardt's intent was to disrupt the District's essential functions.
6 In construing KRS 61.872(3), which mandates that public agency records be accessible by the public "during the regular office hours of the public agency, " this office has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). See 01-ORD-16.
7 Our conclusion is, of course, premised on the assumption that the District made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested." 95-ORD-96, p. 7. The District should have specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96.
8 Record Series L5011, Accounts Payable, and Record Series L5000, Accounts Receivable, on the Local Government General Records Retention Schedule.
9 Record Series L4822, Inspections of Property File, found in the Public Safety - Fire Department/District section of the Local Government General Records Retention Schedule.