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 Boone County Clerk did not subvert the intent of the Open Records Act, short of denial of inspection, 1 by postponing access to 249,504 emails responsive to Paul Croushore's November 19, 2012, request for a period of six months. This office's analysis in 12-ORD-097 is dispositive of the issue on appeal.
In his November 19 letter, Mr. Croushore identified ten individuals and sixty-nine terms, requesting "[a]ll emails or electronic messages by or to" the named individuals and containing "any of the [specified] terms" from and after January 1, 2011, to December 31, 2011. Responding on behalf of Boone County Clerk Kenneth Brown, Louis D. Kelly advised Mr. Croushore that his request would be honored but that, given the broad scope of the request and the necessity of reviewing each of the estimated 50,000 responsive emails to redact protected information, Mr. Brown anticipated that "it will take at least six months" to produce the records. Mr. Kelly indicated that the clerk would make the records available to Mr. Croushore on the earliest possible date, if less time was required, and that the anticipated delay could be minimized if Mr. Croushore agreed "to pare down [his] request to a smaller number of search terms." Mr. Kelly acknowledged that such an amendment to his request would in no way impede Mr. Croushore from "supplementing [his] request with additional search terms at a later date."
Dissatisfied with the clerk's response, Mr. Croushore initiated this appeal asserting that he had "reduced the request to only those terms most likely to result in developing admissible evidence" in a federal case involving his client and Mr. Brown. He "agree[d] to a clawback of any document which either [he or the clerk] determines should not have been provided . . . ." 2 In supplemental correspondence directed to this office, Mr. Kelly questioned the viability of this option, asserting that the statutes governing access to records "are independent of the rules of discovery" and that his client "does not have the luxury of waiving exemptions . . . merely because Mr. Croushore believes that the documents will ultimately prove admissible at trial." It was his position that "the clerk must treat this request the same as any other." 3
With reference to the projected six month delay in disclosing the emails, Mr. Kelly advised that the Boone County Information Services Department subsequently identified 249,504 emails responsive to Mr. Croushore's request. He maintained that such a delay was "not unreasonable in light of the scope of the request," observing:
Because the emails are not limited by subject matter or recipient, many of these messages could potentially contain personal information regarding staff, preliminary recommendations or memoranda, privileged communications with legal counsel, or other information that would be exempt under KRS 61.878. Furthermore, the clerk must accomplish this review while still performing his official duties.
Mr. Kelly reiterated that if Mr. Croushore "were to limit the search terms of individuals being reviewed to a more reasonable figure, the documents could most certainly be produced in a timelier manner," and that a revision of his current request would not impede future requests. In light of our analysis in 12-ORD-097, we affirm the Boone County Clerk's position.
In 12-ORD-097 this office determined that the Campbell County Public Library did not subvert the intent of the Open Records Act by failing to afford a requester timely access to 22,117 records responsive to his request for all email in the library director's account. A copy of that decision is attached hereto and incorporated by reference. The Library agreed to provide the requester with copies of the nonexempt email within six months after the requester refused to narrow the scope of his request, and we affirmed. We observed:
Given the number of records implicated by Mr. Coleman's request, and the necessity of reviewing each to insure that statutorily protected information is not disclosed, we find that the projected six month deadline for disclosure, if strictly adhered to, does not subvert the intent of the Act. In reaching this decision we note that, to the extent relevant, the equities do not weigh in either parties' favor. Having amended his original request by reducing its scope to Mr. Morgan's email account only, [footnote omitted] Mr. Coleman was unwilling to further limit his request to email exchanged by Mr. Morgan and identified individuals, or to email pertaining to a particular topic, or to email generated in a narrower time frame. Having agreed to honor the amended request, rather than deny it as unreasonably burdensome, Mr. Morgan was unable to "produce the responsive records within three business days" because his email account contained in excess of 22,000 emails.
At page 5 of 12-ORD-097, we calculated the actual hours required to fulfill the request.
Obviously, six months represents a far greater delay in producing public records than twenty-one days. We do not endorse such a delay under any circumstances other than the extreme circumstances presented in this appeal. Mr. Coleman's request implicates a vast number of records. Were Mr. Morgan to devote 7.5 hours each work day in the next six months to the task of reviewing each of the 22,117 records implicated, as the library proposes, he would be required to review 184 records per day or 24 records per hour. If he were to devote 7.5 hours each work day in the next three weeks, as Mr. Coleman proposes, he would be required to review 1,474 records per day or 197 records per hour. While he has made a commitment to complete the task by the earliest possible date, and to dedicate his efforts to that end, he has not committed, and cannot responsibly commit, to dedicate every working hour to the fulfillment of Mr. Coleman's request. While it may well have been "the legislative intent [in enacting the Open Records Law] that public employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, such a commitment would "require a level of 'patience and long-suffering' that the legislature could not have intended." 95-ORD-47, p. 6.
Mr. Croushore's request implicates more than ten times the number of emails than the request at issue in 12-ORD-097. Accordingly, the county clerk will expend ten times the manhours to fulfill his request in the proposed six month time frame. The law does not demand more of him.
In a footnote appearing on page 6 of 12-ORD-097, this office noted:
Such broadly worded requests for "all email" sent or received by a particular person or persons, or related to a particular subject, or within a stated timeframe, have become increasingly common. Although such requests are not "improper," they could not have been envisioned by the General Assembly in adopting a three working day statutory deadline for records production when the Open Records Law was enacted in 1976, and applicants submitting requests cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three day deadline. Applicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production.
While we emphasized the importance of proper records management, including proper records destruction, as well as the requirement that the agency "firmly commit to releasing the records" to the requester upon or before the expiration of six months, there, as here, we are unwilling to interpret the law in such a way as to make unreasonable demands on public officials.
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:
Paul CroushoreKenny BrownLouis D. Kelly
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 The Open Records Act does not recognize the use of a clawback agreement in cases of inadvertent disclosure of exempt public records.
3 The Boone County Clerk is entirely correct in this view. In Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals recognized that any member of the public has as much right of access to records as the next and that an open records analysis "does not turn on the purposes for which the request for information is made or the identity of the person making the request."