Opinion
Opinion By: Jack Conway, Attorney General; Amye Bensenhaver, Amye Bensenhaver
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 Kentucky State Police properly relied on KRS 61.872(6) in denying William E. Sharp's August 3, 2011, request for copies of documents "pertaining to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users." Specifically, Mr. Sharp requested eight categories of records, the first of which contained six subparts, ranging from "policies, procedures, education or training materials, memoranda and/or other documentation" relating to cell phone location records to "subpoenas or subpoenas duces tecum issued to any cell phone companies or providers of location-based services regarding cell phone location information, data, or records issued between January 1, 2009 through August 3, 2011." Relying on
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), Mr. Sharp challenged KSP's refusal to provide him with copies of the records identified in paragraphs 2, 3, 5, and 8 of his request. We believe that the scope of the request at issue in Chestnut was far less expansive than the scope of Mr. Sharp's request and that the case is therefore distinguishable. Because KSP presents clear and convincing evidence that retrieving, reviewing, and redacting, where appropriate, the requested records would impose an unreasonable burden, we affirm its denial of the request.
On August 10, 2011, KSP issued a response in which it invoked KRS 61.872(6) as the basis for denying Mr. Sharp's requests for:
In supplemental correspondence directed to this office after Mr. Sharp initiated his appeal, KSP amplified on its position:
Cell phone location records obtained for investigative purposes are treated identically to any evidence collected in a criminal case. All evidence collected during a criminal investigation is maintained in the criminal case files for which the data was requested. This evidence is subject to the same records retention schedules as the criminal case files in which they are located. KSP does not have a digitized record of criminal case files that contains documents or data, nor does it possess any digitized case tracking system with a search capability to screen cases containing subpoenas and/or search warrants. There is no legitimate law enforcement need for this search field, thus it does not exist. For this reason, it is not possible to separate, identify, and locate the individual criminal cases in which a subpoena, search warrant, subpoena duces tecum, court order, correspondence or other legal document was obtained by an officer to acquire cell phone location data.
From January 1, 2009 to present, KSP has opened 52,151 cases. To provide all subpoenas, subpoenas duces tecum, search warrants, court orders, correspondence, or other legal documents pertaining to the acquisition of cell phone location data by KSP would require a manual review and search of all 52,151 cases. Any attempt to comply with this action would take years to complete . . . .
In support, KSP submitted the affidavits of Lt. Col. Joe Williams, Commander over the Operations Division, Special Operations, and Major Keith Peercy, KSP's Chief Information Officer. Their affidavits, coupled with the proof presented by KSP in its original and supplemental responses, satisfy the clear and convincing standard found at KRS 61.872(6) and justify its position that fulfilling Mr. Sharp's request would impose an unreasonable burden on the agency.
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.
"This provision," the Attorney General has opined, "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 record request is such that production of those records would place an unreasonable burden on the agency." 96-ORD-155, p. 3. Continuing, this office has observed:
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 must be sustained by clear and convincing evidence . . . .
Id.
In determining whether an open records request is unreasonably burdensome, 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. Id. The Attorney General described these competing interests in two early opinions:
Every request to inspect a public record causes some inconvenience to the staff of a public agency. No doubt some state and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Act in order to comply with the provisions of the law . . . . 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, the Attorney General 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 make extreme and unreasonable demands on their time.
OAG 76-375, p. 4.
Before Commonwealth v. Chestnut , above, the Attorney General rarely found that the burden imposed on a public agency in producing public records was sufficiently unreasonable to justify invocation of KRS 61.872(6) . Chestnut reinforced this longstanding position by recognizing, as Mr. Sharp correctly notes, that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)] since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " Chestnut at 664, and that it cannot rely on "inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. at 665. "The obvious fact that complying with an open records request will consume both time and manpower, " the court concluded, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id.
Although not wholly dispositive of the issue presented on appeal, Chestnut involved an inmate's request to inspect a single institutional file, his own, which consisted of "numerous 'files,' . . . physically located at more than one spot across the Commonwealth." Id. Mr. Sharp's request is vast in scope, encompassing in excess of 52,000 investigative files, many of which remain open. Thus, while the Court in Chestnut was dealing with a single potentially voluminous file, Mr. Sharp's request implicates over 52,000 potentially voluminous files. In Chestnut , the Court rejected the agency's claim that its method of organizing inmate files exacerbated the burden in fulfilling the request, declaring that it "should not be able to rely on any inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Id. at 666. KSP amply demonstrates that its recordkeeping system is not inefficient but is instead properly suited to its investigative/ enforcement goals. The potential for inadvertent disclosure of protected matter, specifically, information to be used in prospective law enforcement action the premature disclosure of which would harm ongoing investigations and enforcement actions, 2 is multiplied many times over in the context of a request of this magnitude. However "scrupulously [KSP] perform[s] its duty to ensure that any privileged material" is not disclosed, 3 the sheer volume of the records encompassed by Mr. Sharp's request magnifies the possibility of harm to these investigations/enforcement actions.
KSP offers clear and convincing evidence that the time and manpower required to fulfill Mr. Sharp's request is not a function of inefficiencies in its record keeping system, but is, instead, a function of the expansive scope of his request. Compounding this problem, Mr. Sharp proposes that KSP "comply with [his] request by delivering copies of the requested records to [his] office . . . ." We can conceive of no set of facts that would support such a demand in light of KRS 61.872(3)(b). 4 If Mr. Sharp is willing to conduct an onsite inspection of any of the 52,000 plus cases closed in the specified time frame to locate records responsive to a revised request, KSP may respond to that request in accordance with KRS 61.872(3)(a). 5 If he is able to identify a single case, or series of cases by name, in which KSP utilized location based services, the records contained therein do not qualify under one or more of the exceptions to the Open Records Act, and he prepays for copying and postage charges, KSP may respond to a revised request in accordance with KRS 61.872(3)(b). While continuing to firmly adhere to the principles articulated in Chestnut , we affirm KSP's denial of Mr. Sharp's request, in its present form, under KRS 61.872(6) based upon the clear and convincing evidence of an unreasonable burden presented.
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:
William E. SharpShiann N. SharpeMorgain M. Sprague
Footnotes
Footnotes
1 Mr. Sharp does not challenge KSP's disposition of his remaining requests.
2 KRS 61.878(1)(h).
3 Chestnut at 666.
4 KRS 61.872(3) provides:
(3) A person may inspect the public records:
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency . If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(Emphasis added.)
5 KRS 61.872(3)(a) provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency [.]