Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Corydon violated provisions of KRS 61.870 to 61.884 in the disposition of Beth French's July 8, 2011, request to inspect "all complaints on all city employees and contract laborers and the Mayor from 1-1-11 to 7-8-11." Specifically, the city violated KRS 61.880(1) by failing to issue a written response to Ms. French's request within three business days and KRS 61.878(1) by failing to advance a legally recognized basis for denying Ms. French access to the requested complaints.
On July 14, 2011, this office notified the city that Ms. French had initiated an open records appeal concerning this request and afforded the city an opportunity to respond. On July 20, we received two communications from the city. The first was signed by Mayor Larry Thurby. It described the events of the previous day concerning Ms. French and others, but had no bearing on the records access issue presented in her appeal. The second communication was also signed by Mayor Thurby. It stated that the city denied Ms. French's request because the Mayor, who removed the complaints from agency premises, "wanted to show [the] complaints to city attorney, Preston Wade, and personal attorney, Bill Maddox" "to make absolute[ly] certain[] that these records can be released without action being taken . . . ." 1 Mayor Thurby maintained that the city clerk, whose employment was terminated on July 15, 2011, "did not make sure that French's request for public records was met" and that the city's new employees "were not aware of previous complaint forms from French on July 12, 2011." It was his position that compliance with Ms. French's requests, in conjunction with staffing changes and an ongoing audit, constituted an unreasonable burden "as stated on [sic] KRS 61.872."
The City of Corydon violated KRS 61.880(1) by failing to respond to Ms. French's open records request in writing and within three business days. The referenced statute establishes clear guidelines for agency response to records requests and recognizes only two exceptions. The first, codified at KRS 61.872(4), relates to misdirected requests and the second, KRS 61.872(5), relates to requests for records that are "in active use, in storage, or not otherwise available." When applicable, KRS 61.872(4) and KRS 61.872(5) nevertheless require the agency to issue an appropriate written response within three business days. Neither statute was applicable to Ms. French's request, and the city offered no explanation whatsoever for its failure to respond. She submitted that request on July 8, 2011, and learned, albeit indirectly, 2 that the city did not intend to honor it only after she initiated this appeal on July 20, 2011. Nothing in the record before us, including the city's apparent frustration with Ms. French, justified its noncompliance with KRS 61.880(1).
The city's belated attempts to justify nondisclosure of the requested records were not persuasive. The city chiefly relied on KRS 61.872(6) 3 asserting that "[t]he demanding requests from Beth French . . . are an unreasonable burden and disrupting the essential functions of the agency." 4 It offered no specific evidence of an unreasonable burden or an intent to disrupt essential functions other than the incident that occurred on July 19, referenced in its July 20 supplemental response. The city further maintained that its problems in fulfilling Ms. French's request were exacerbated by an ongoing audit and the need to train new employees. Respectfully, this is not the kind of evidence of an unreasonable burden or an intent to disrupt essential functions contemplated by KRS 61.872(6).
Given the Kentucky Supreme Court's declaration 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 an unreasonable burden by 'clear and convincing evidence, '" we cannot affirm the city's position. Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008). In Chestnut, the Court determined that "the obvious fact that complying with an open records request will consume time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " The City of Corydon provided no proof of the time and manpower required to fulfill Ms. French's current request or past requests, much less proof of an inordinate amount of time and manpower. Compare, 06-ORD-159 and 08-ORD-060 (copies enclosed). In the absence of clear and convincing evidence of an unreasonable burden and/or an intent to disrupt essential functions, we find that the city violated the Open Records Act in denying Ms. French's July 8, 2011, records 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.
Footnotes
Footnotes
1 The decision to remove the agency's records from agency premises may not reflect the most prudent records management practices; however, we are not authorized to make any findings regarding this removal.
2 The city's supplemental responses were not copied to Ms. French and therefore do not appear to have been mailed to her. The notification of appeal sent to Mayor Thurby and the city attorney clearly stated that "[t]he agency must send a copy of its response, and any accompanying materials, to the complaining party." Although this omission did not constitute a violation of the Open Records Act, it was inconsistent with the goal of transparency that informs the Act as well as this process.
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 Mayor Thurby references a July 19, 2011, telephone conversation between the new city clerk and the undersigned in which the undersigned is reputed to have stated that "no complaint records may be released to public unless action has been taken." This does not represent a verbatim report of that conversation. More importantly, final action had been taken four days before the conversation occurred. In any case, the city did not cite the exceptions authorizing nondisclosure of nonfinal records that arguably applied on July 8, 2011, when Ms. French submitted her request.