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 City of Corydon improperly denied Charlene Frederick's March 20, 2012, request for "copies of time cards for all city employees and contract laborers from Jan. 1, 2012, to March 23, 2012, after payroll has been done." 1 The city presents evidence that, acting in concert, Ms. Frederick and her daughter, council member Beth French, have made previous requests for city employee time cards, along with multiple unrelated open records requests, in the past year, but no evidence that Ms. Frederick or Ms. French have requested city employee time cards from January 1, 2012, to March 23, 2012. Accordingly, Ms. Frederick's request cannot be characterized as duplicative, and therefore unreasonably burdensome, notwithstanding the city's assertions that "there have been no changes in employee pay or employee hours that would require a request to see employee time cards again." 2
In supplemental correspondence directed to this office after Ms. Frederick filed her open records appeal, the city noted that on March 23 she signed for and received three pages of ostensibly responsive records. 3 The city did not describe the content of the three records, but they appear to have been time cards. In the same letter, the city clerk explained:
It is not 'just' (3) time cards -- its (37) time cards which I have to pull from records, make copies of originals, redact personal information, then make copies again. This is not a 10/15 minute job, especially with myself being the only full time employee and the extra work load coming from the multiple law suits, open requests and appeals. [Sic.]
While the clerk's apparent effort to comply with the requirements of the Open Records Act in the face of numerous records requests is commendable, she is not relieved of her duties under the Act in the absence of clear and convincing evidence of an unreasonable burden.
We begin by noting that the statute authorizing denial of an open records request based on its unreasonably burdensome nature, KRS 61.872(6), is alluded to throughout the city's original and supplemental responses but nowhere expressly cited. This omission, alone, constitutes a violation of KRS 61.880(1), requiring the city to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record[s] withheld." Our review of the record on appeal confirms citation to KRS 61.872(6) in Ms. Frederick's correspondence, but not in the city's correspondence. KRS 61.880(1) "requires the custodian of records to provide detailed and particular information in response to a request for documents . . . ."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). This requirement is critical when the custodian attempts to establish an unreasonable burden by clear and convincing evidence pursuant to KRS 61.872(6) .
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 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.
In
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Kentucky Supreme Court undertook an analysis of KRS 61.872(6) for the first time. Before Chestnut , 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 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.
Chestnut involved an inmate's request to inspect a single, albeit voluminous, institutional file consisting of "numerous 'files', . . . physically located at more than one spot across the Commonwealth." Id. Although Ms. Frederick and Ms. French have submitted multiple requests, those requests were restricted in scope to discrete records sets identified by date. No doubt, the city has expended considerable time and effort in the "tedious and time-consuming work" of fulfilling these requests. Id. at 664. However, as the Supreme Court reminded us in Chestnut , the presumption of an unreasonable burden does not arise from the fact that fulfilling records requests consumes both time and manpower. Simply put, the city fails to present clear and convincing evidence that the effort expended in fulfilling this request, or all of Ms. Frederick and Ms. French's requests combined, has imposed an unreasonable burden on it. Compare 11-ORD-144 (Kentucky State Police provided clear and convincing evidence of an undue burden in denying request for records contained in more than 52,000 investigative files, many still open, pursuant to KRS 61.872(6)).
The fact that the city clerk is the only full-time city employee, that Ms. Frederick and Ms. French have received assurances that successive time cards contain no new information, and that the city has extended an invitation to them to come to city hall to discuss their concerns, does not alter our analysis. Both requesters have a statutory right 4 to inspect, and obtain copies, of all nonexempt records that are "prepared, owned, used, in the possession of, or retained by" 5 the city. That right cannot be circumscribed absent clear and convincing evidence of a single records request so vast in scope that production of the records would unreasonably burden the agency or of a pattern of harassing requests aimed at disrupting essential agency functions. The City of Corydon presents inadequate proof in this regard.
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:
Charlene FrederickLisa M. ErvinLarry G. Thurby
Footnotes
Footnotes
1 To the extent Ms. Frederick's March 20 request encompassed time cards that had not yet been created, namely time cards for March 20, 21, 22, and 23, her request was improper. The Open Records Act applies to records in existence at the time of the request, and the city had no obligation to honor that portion of her request relating to records that did not contemporaneously exist. See, e.g., 09-ORD-203, p. 5, 6 (enclosed).
2 The city also states that Ms. French "was advised that she could not keep asking for employee time cards" and that she and Ms. Frederick "refuse to work with office staff" in trying to address their questions and concerns as an alternative to submission of open records requests. Neither of these statements constitute legally recognized bases for denying an open records request as unreasonably burdensome.
3 It is unclear whether the city intended to fully disclose the requested records to Ms. Frederick but placed her on notice that it would not honor future requests or whether the city intended to only partially disclose those records, refusing to provide the rest because her request was considered unreasonably burdensome. In either case, the city failed to meet its burden of proof relative to invocation of KRS 61.872(6).
4 KRS 61.872.
5 KRS 61.870(2).