Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jessamine County Fiscal Court violated the Kentucky Open Records Act in the disposition of Andrew Wood's May 24, 2012, request for a copy of the "[o]fficial recording and transcript for Jessamine County Fiscal Court on February 27, 2012 during" his employment appeal, "[a]ny written accounts or documents that resulted" therefrom, "[a]ny e-mails or memorandums regarding Andrew Wood or Tina Griggs from Jerry Domidion, Evelyn Smith, Kelly Wollums, or Neal Cassity since February 1, 2012," "[a]ny mobile phone bills/records from Jerry Domidion" for April 2011, "[a]ny 911 call related to the motor vehicle collision involving JCEMS' ambulance on February 11, 2012," "[a]ny documentation regarding [that] ambulance wreck," and "[a]ny disciplinary action or QA from Paramedic Weifenbaugh regarding her run on Jessamine Station in August 2011." This office is unable to conclusively resolve the factual dispute relating to delivery and receipt of Mr. Wood's May 24 request and therefore makes no finding with regard to whether the agency violated KRS 61.880(1) in failing to issue a written response within three business days of receipt. 1 In light of Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), Mr. Wood's request "should be evaluated independently of whether or not [he] is a party or potential party to litigation." The Fiscal Court erred in denying access to some records because they are "generally available through discovery. " Absent clear and convincing evidence that Mr. Wood's "repeated requests are intended to disrupt other essential functions of the public agency, " or that complying would unreasonably burden the agency, the Fiscal Court's reliance on KRS 61.872(6) was also misplaced.
Having receiving no response to his May 24 request, Mr. Wood initiated this appeal by letter dated June 4, 2012, advising that "[i]n previous conversations Jessamine County Attorney, Brian Goettl, requested that all open records [requests] be sent to him" to ensure timely processing of the requests. In prior instances, he faxed the request to Mr. Goettl "and it was immediately received." Upon receiving notification of Mr. Wood's appeal from this office, Assistant Jessamine County Attorney Joseph C. Allison responded on behalf of the Fiscal Court, 2 initially explaining that upon reviewing the "office files" he did not locate a copy of the subject request. 3 Mr. Allison further advised that "Mr. Wood has recently filed a lawsuit against the county" and since his prior appeal (initiated on January 20, 2012), "Mr. Wood and his attorney have filed, I believe, no less than 5 Open Records Requests." Mr. Allison also noted that Mr. Wood "admits in his Open Records Request that he previously made a request for 911 records to the proper custodian of those records (seemingly in violation of his alleged instruction to submit them to us) and that the proper custodian denied the request." To his knowledge, that denial has not been appealed. 4
In support of the agency's invocation of KRS 61.872(6), and its decision to decline to respond to "Mr. Wood's repeated Open Records Requests that are intended to disrupt other essential functions of our public agency, " Mr. Allison asserted:
Request 1 . Fiscal Court Meetings are not generally recorded, other than the minutes prepared by the County Clerk, which are, I believe, generally available. 5 A hired transcriptionist was at the hearing referred to by Mr. Wood. Her business card was given to Mr. Wood and/or his attorney. I do not know, at this time, whether the Fiscal Court has a copy of that transcription, but it may certainly be obtained from that official source -- who is not a regular employee of the Fiscal Court.
Request 2 . These are not identified documents. This is, in essence, a discovery request of the type that should be made through litigation. Regardless, this office is under no obligation to search to see if such records exist -- and to require the Fiscal Court to do so without scope and within the confines of an Open Records Request is certainly an unreasonable burden.
Request 3 . These documents were previously requested by Mr. Woods' attorney. This request is not properly made to the County Attorney's Office. These documents are generally available through discovery.
Request 4 . These are documents which would normally be sought through discovery. Mr. Domidion is a party to the Appellant's lawsuit and subject to discovery orders. Moreover, this information is not a record kept by the Fiscal Court, and certainly not kept by this attorney's office. This is clearly an attempt to burden the County Attorney's Office by attempting to force us to conduct discovery from independent third parties for Mr. Wood's ongoing litigation against the county.
Request 5 . Mr. Wood has admitted to previously making this request to the proper custodian. That request was apparently denied. [See above.]
Request 6 . This information would be available from the same custodian as Request 5. It is unclear whether Mr. Wood already requested this documentation from that custodian as well, or whether or not he received it. I would defer any decision on whether this information is protected from disclosure to the proper custodian.
Request 7 . This information is not kept by this office. I am not aware if Paramedic Weifenbaugh made more than one run in August 2011, so I cannot say if this request is demanding an unreasonable search for information or not. Suffice it to say that this sounds more like a discovery request than a Request for Open Records.
"It is clear from our interactions with requester, " Mr. Allison concluded, "that these 'Open Records Requests' are not being made for a legitimate purpose. They may be made out of a general desire to avoid the time and expense of conducting legitimate discovery in an ongoing case by seeking to compel our office to discovery under the guise of an 'Open Records Request.'" Mr. Allison is unclear as to whether he "is seeking to gain an advantage in litigation . . . or simply seeking to burden as many county employees as possible by making the same requests to different [agencies]." In reply, Mr. Wood clarified that his request was filed prior to his lawsuit against the County. With regard to Item 6, Mr. Wood advised that it would not be "the same custodian of records (E911), and in fact is EMS." Further, Items 5 and 6 "are not directly related to" his "retaliation." The records being sought relate to his "wife being in a traffic accident which is an independent incident" that Mr. Wood is currently investigating. Mr. Wood disputed that locating documents responsive to Item 7 will be unreasonably burdensome. "Using the electronic patient care report software (made by ESO)," he noted, "it would literally take seconds to find this information using the date, employee name, and street name." Mr. Wood reiterated that attempting to gather information regarding his wife's traffic accident is a "legitimate purpose. " 6 Further, the request for public records pertaining to his employment by the Fiscal Court was made before litigation was filed, at which point he was not entitled to discovery. With regard to use of county employees' time, Mr. Wood offered to "search through records myself and copy the relevant pages."
Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, the Attorney General observed that although there is litigation in the background of a request, disposition of which is under review, "the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2. The Attorney General later noted that the presence of litigation involving the parties "should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process." OAG 89-53, p. 4.
Shortly thereafter, the Attorney General reaffirmed the validity of this position, recognizing that "[t]here is no indication in the Open Records provisions that application of the rules therein [is] suspended in the presence of litigation." OAG 89-65, p. 3. Requests under the Open Records Act, in other words, "are founded upon a statutory basis independent of the rules of discovery. " Id.; see also 95-ORD-27. In OAG 89-65, the Attorney General clarified that "in making such observation," this office was not "suggest[ing] that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. . . ." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, but has not recognized the right of a public agency to deny a request on that basis alone. In Kentucky Lottery Corporation v. Stewart, above , at 864, the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General, opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. As the Court observed, KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases , [emphasis added] but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." Id. at 863. Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. 7 Stewart at 863.
Simply put, Mr. Wood "stands in relationship to" the Fiscal Court (or any other public agency that maintains responsive documents) under the Act as any other person. See 00-ORD-97; 08-ORD-151; 11-ORD-108. Accordingly, the Fiscal Court's position that, for instance, Item 2 of Mr. Wood's request "should be made through litigation," that Item 3 identifies a type of document(s) that is "generally available through discovery, " and that Item 7 "sounds more like a discovery request" would not be a legitimate basis for denial even assuming that litigation was actually in progress when he submitted the request. See Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records")(original emphasis). With regard to items 3-7, which the Fiscal Court apparently does not maintain, it was required to provide Mr. Wood with the "name and location of the official custodian of the agency's public records" per KRS 61.872(4). 8
The Fiscal Court's argument regarding KRS 61.872(6) is also unpersuasive. The Attorney General has "rarely found sufficient evidence in the record on appeal to support a public agency's invocation of KRS 61.872(6) based on the agency's assertion that a single records request or repeated requests are intended to disrupt the agency's essential functions." 9 05-ORD-152, p. 5. Early on, this office was asked to determine whether repeated requests made by an individual to a school district in a five-month period adequately demonstrated an intent to disrupt the district's essential functions within the meaning of this provision. In holding that sufficient evidence had not been presented, the Attorney General reasoned that "[r]epeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. " OAG 77-151, p. 3. Every request "causes some inconvenience to the staff of the public agency. . . . [but] a public agency should only invoke the excuse of harassment in extreme and abusive circumstances." Id. The legislative intent is "that public employees exercise patience and long-suffering in making public records available for public inspection. " Id. However, "[s]tate agencies and employees . . . are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
This office reached the same conclusion as in OAG 77-151 with respect to fifteen requests made to the Transportation Cabinet by an individual in a six day period. OAG 89-79. Anticipating ten more requests, the Cabinet resisted complying due to a concern that the records might be used in a subsequent legal action against the Cabinet, arguing that the number, detail, and nature of the requests suggested an intent to disrupt its essential functions. Id., p. 1. The Attorney General concluded that the Cabinet's reliance on KRS 61.872(6) was improper, expressly rejecting that part of the argument that was postulated on the use for which the records were requested. Id., p. 2. Making this determination requires the Attorney General to 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. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests . . . are intended to disrupt its essential functions." 98-ORD-130, pp. 5-6. Nevertheless, the Attorney General has declared on several occasions that although there is no limit on the number of requests and subsequent appeals that may be submitted, "there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case." 96-ORD-193, p. 5; 05-ORD-152 (Office of Charitable Gaming improperly relied on KRS 61.872(6) in denying single request for documents relating to "a handful" of charitable organizations merely because requester was a known critic of the OCD and the parties had previously entered into a Master Settlement Agreement when OCD presented no evidence of abusive conduct or intent); 10-ORD-203; compare 11-ORD-144 (Kentucky State Police provided clear and convincing evidence that complying with request for records contained in 52,000 investigative files, many still open, would be unreasonably burdensome) .
In Department of Corrections v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008), the Kentucky Supreme Court discussed the intentionally high burden of proof that a public agency faces in attempting to successfully invoke 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 his request satisfied 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. He was "required to do nothing more" than describe the record(s) 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. In rejecting the Department of Corrections' invocation of KRS 61.872(6), the Court found that affidavits it submitted were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . . ." Id. at 664. "[S]atisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," the Court was not persuaded that "automatically constitute[d] an unreasonable burden. " Id. Rather, 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" as that is an existing statutory obligation under KRS 61.878(4). Id. at 665. "A record's length, standing alone, is an insufficient reason to exempt it from open records disclosure. " Id. at 666. So, too, is the agency's "method of organizing its files . . . ." Id. 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.
Although the Fiscal Court has argued that Mr. Wood's request is unreasonably burdensome and/or intended to disrupt its essential function(s), the record on appeal lacks clear and convincing evidence to substantiate that assertion. The agency made no attempt to "forecast what its actual burden would be." Chestnut at 4. There is nothing in the record indicating the difficulty in locating and/or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. Rather, with regard to Item 2 ("[a]ny written accounts or documents that resulted from the above hearing,"), the only category in relation to which the Fiscal Court does not either deny being custodian of the records (rendering its reliance on KRS 61.872(6) a nullity) and/or just rely on the availability of such records via discovery, with the exception of Item 1, 10 the Fiscal Court simply argued that requiring a search "without scope and within the confines of an Open Records Request is certainly an unreasonable burden. " A bare allegation does not satisfy the requirements of KRS 61.872(6) nor do repeated requests amount to harassment standing alone. 11
It seems unlikely that identifying or locating all documents generated in relation to a specific hearing would be unreasonably burdensome, assuming the Fiscal Court properly maintains and manages its records, particularly given that Mr. Wood has now offered to inspect potentially responsive documents prior to receiving copies. Even assuming that his request did not "precisely describe" the records being sought, as required to receive copies by mail per KRS 61.872(3) , or that the Fiscal Court opted to exercise its prerogative to require inspection prior to providing copies under that provision because Mr. Wood resides (and works) in Jessamine County where the records are located, the agency has not demonstrated with clear and convincing evidence that producing the records for inspection would be unreasonably burdensome. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours." Id., p. 4. See 08-ORD-047 (copy attached and incorporated by reference); 06-ORD-155 (agency permitted to require on-site inspection of existing responsive documents it may possess before providing copies, but may not deny request); 11-ORD-127 (agency must "conduct a good faith search of the agencies, offices, and departments that could reasonably be expected to produce" records being sought notwithstanding "lack of 'particularity' in [the] request" as to "hold otherwise would facilitate agency abuse of the Open Records Act by enabling agencies to evade their statutory duties").
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:
Andrew WoodJoseph C. Allison
Footnotes
Footnotes
1 Mr. Wood included a copy of a fax delivery confirmation sheet with his appeal; however, the Jessamine County Attorney's Office denied receiving his request (directed to the Jessamine County Fiscal Court c/o Brian Goettl) in response thereto. Ultimately, this office cannot resolve such an issue as the role of the Attorney General in adjudicating an Open Records dispute is narrowly defined by KRS 61.880(2), and this office is without authority to deviate from that statutory mandate. See OAG 89-81; 03-ORD-061; 08-ORD-172.
2 The County Attorney's Office was notified of Mr. Wood's appeal in its capacity as legal counsel for the Fiscal Court; also, Mr. Wood's request was made to the Fiscal Court, notwithstanding the apparent confusion regarding whether any such request should have been directed to Mr. Goettl, and the relevant inquiry for the limited purpose of resolving this appeal is whether the Fiscal Court maintains any responsive public records, not whether the County Attorney's Office does. The Jessamine County Judge Executive also received a copy of the notification but did not choose to respond separately.
3 As indicated, this factual dispute cannot be conclusively resolved in the context of an Open Records Appeal. Mr. Allison further stated that he is "aware of no communication to Mr. Wood that he should present all records requests" through the County Attorney's Office, but acknowledged that "Mr. Wood's attorney was previously instructed to do so as we believed he may have been engaging in unauthorized contact with county officials." (Original emphasis.) Again, this office is unable to resolve such a factual dispute. See 09-ORD-120 (noting "this office is not equipped to resolve factual dispute [when presented with conflicting factual narratives]")(citation omitted). The record is unclear as to whether Mr. Allison spoke with Mr. Goettl regarding the alleged instruction to submit requests to his office. Inasmuch as the County Attorney's Office apparently did advise Mr. Wood's attorney in that manner at some point, and his attorney was presumably acting on his behalf, Mr. Wood's assumption was not unreasonable. In any event, Mr. Wood's request was addressed to the Jessamine County Fiscal Court, and the County Attorney's Office responded to Mr. Wood's request/appeal on its behalf; accordingly, if the County Attorney's Office had received the request when it was initially submitted, it was required to either forward any requests made to the appropriate public agency or provide Mr. Wood with the name and contact information of the official custodian thereof per KRS 61.872(4).
4 Although Mr. Wood's May 24 request to the Fiscal Court included this record, his appeal did not include the requisite documentation to challenge the disposition by the Jessamine County Division of Emergency Services of the original request by his wife for the same record; accordingly, this office focuses exclusively on the Fiscal Court's response. The substantive question regarding application of KRS 61.878(1)(a) to said record(s) is the subject of a separate appeal filed by Amanda Wood, which culminated in 12-ORD-138, issued on July 31, 2012.
5 Per KRS 61.835 "[t]he minutes of action taken at every meeting of any . . . public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." Accordingly, the Fiscal Court is required to have minutes of every meeting available for inspection and, upon request, copying.
6 Early on, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection." OAG 82-233, p. 3; see also OAG 89-76. The Kentucky Court of Appeals confirmed this position in Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), observing that its "analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request." Neither KRS 61.872(2) nor any other provision of the Act permits a public agency "to inquire into a requester's motive in seeking access to public records, or to consider those motives in determining whether the records should be released." 01-ORD-8, p. 5.
7 See also Department of Corrections v. Courier-Journal and Louisville Times Co., 914 S.W.2d 349 (Ky. App. 1996).
8 If the Fiscal Court received identical or duplicative requests from Mr. Wood for the same public records, it was not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. See 05-ORD-198. Unless a requester such as Mr. Wood "can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records," a public agency such as the Fiscal Court is not required to satisfy the same request multiple times. 05-ORD-021, p. 8.
9 Pursuant toKRS 61.872(6):
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.
10 The record is unclear as to whether the Fiscal Court opted to retain a copy of the hearing transcript; however, the agency has acknowledged that one was created. Compare 08-ORD-101. At a minimum, the Fiscal Court was required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (citation omitted). The Fiscal Court's response "contains no indication that a search of any kind was conducted, let alone the requisite description of the search methods employed." 11-ORD-113, p. 6. The fact that a transcriptionist was hired to create the record and/or might currently possesses it does not relieve the Fiscal Court of the obligation to produce it for inspection assuming that it was prepared "at the instance of and as custodian [footnote omitted] on the [agency's] behalf." 12-ORD-120, p. 6; OAG 92-111 (when agency directs that a recording be made of its meeting, "for whatever reason," and that recording is purchased with agency funds, it must be released); compare 06-ORD-195 (recording of meeting was not made at direction of agency nor owned, used, or possessed by it and therefore was not a "public record"). The "nature and purpose of the document, not the place where it is kept," confirm that it can be properly characterized as a "public record" within the meaning of KRS 61.870(2). 00-ORD-207, p. 5; see 12-ORD-120 (copy enclosed). See United Transportation Union Local 1745 v. City of Albuquerque, 352 Fed.Appx. 227, 2009 WL 2573815 (C.A.10 (N.M.))(holding that court reporter was not entitled to payment for copies of transcripts that she prepared for the City which attorney obtained through a public records request). The record lacks adequate information to resolve this question.
11 With regard to Mr. Wood's alleged intent to disrupt essential functions by submitting multiple (approximately five) requests during the past six months or so, the record is equally lacking in terms of relevant specifics. That number, all else being equal, is not disruptive or burdensome.