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 Lexington-Fayette Urban County Government Division of Police properly relied on KRS 61.872(6) in partially denying William E. Sharp's broadly worded 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" for a two and a half year period. Although the Division provided less detailed support for its position than did the Kentucky State Police in denying an identical request that resulted in an open records appeal culminating in 11-ORD-144, we believe that the analysis in that decision is dispositive of the issue in this appeal. A copy of 11-ORD-144, including the description of Mr. Sharp's request, is attached hereto and incorporated by reference.
On August 16, 2011, the Division of Police notified Mr. Sharp that three responsive documents had been located and would be mailed to him upon prepayment of copying and postage charges. Additionally, the Division suggested that he redirect his request to other entities that maintain responsive records not in its custody. Finally, the Division denied the existence of records responsive to requests 1.c., 1.f., 4., and 6., and denied as unreasonably burdensome requests 2., 3., 5., and 7. In support, the Division asserted that although it could not estimate the number of records encompassed by the request, or the time required to fulfill it, a search for responsive records would require a manual review of every record retained by LFUCG. Mr. Sharp subsequently initiated this appeal.
In supplemental correspondence, the Division of Police elaborated on its position, observing:
The Division of Police does not index records by communities of interest or by any type of cell phone records, i.e., user or phone number. The Division of Police records are indexed by case name. No tracking mechanism exists to create a list of records responsive to Mr. Sharp's request. In order to provide any documents which may be responsive to the request, the Division of Police would have to manually search each and every case file in the requested time frame to determine if any documents exist in each file that conform to the parameters of Mr. Sharp's request. Thousands of case files exist in the requested time period.
Even more daunting, the Division of Police argued, would be a search of "millions" of emails generated by its 500 plus employees during this time frame. It was the agency's position that fulfilling Mr. Sharp's request "would require innumerable man hours . . . ."
We find that Mr. Sharp's requests are "vast in scope, encompassing [all cases opened during the referenced period], many of which remain open," that it is not the Division's recordkeeping system, but the scope of the request, that represents an impediment to access, and that the volume of records implicated by the request "magnifies the possibility of harm to open investigations/enforcement action" through inadvertent disclosure of protected matter. 11-ORD-144, p. 6.
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), upon which Mr. Sharp relies, is therefore distinguishable from the appeal before us. Here, as in 11-ORD-144, we affirm the Division's denial of Mr. Sharp's request because it mirrors the request in that open records decision and imposes the same burden, albeit on a smaller scale. However, given the cautionary language in Chestnut , the Division of Police would be well advised to provide specific proof of an unreasonable burden in denying future requests on the basis of KRS 61.872(6), as did KSP in 11-ORD-144.
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. SharpKaren H. SteedMichael R. Sanner