Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in the disposition of a request made by attorney Edward L. Metzger III to inspect records relating to his client, Ernest William Singleton. For the reasons that follow, we find no violation of the Act.
In his request dated February 21, 2013, Mr. Metzger requested copies of the following:
Any and all public records in the possession of the Kentucky State Police referencing or containing the name of Ernest William Singleton or Will Singleton from 2010 to the present. This request includes, but is not limited to, records indicative of Mr. Singleton's assistance with Kentucky State Police matters, including tips given to your department.
On February 27, 2013, KSP Custodian of Records Emily M. Perkins replied in pertinent part:
Your request is denied pursuant to KRS 61.872(3)(b), which states that the requestor must precisely describe the records sought.
The requester must describe the materials sought with enough specificity to allow the agency to identify and locate the records. Further, in the Attorney General's opinion 99-ORD-14 it states: [A] request for any and all records which contain a name, a term, or a phrase is not [a] properly framed open records request, and generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
(Emphasis in original.)
Mr. Metzger appealed to this office on March 4, 2013, arguing that his request was limited to a time frame, 2010 to the present, and identified a limited class of records, namely "records indicative of Mr. Singleton's assistance with Kentucky State Police matters, including tips given to your department." On March 11, 2013, Ms. Perkins replied:
While Appellant provided a name and a specific timeframe, and stated that the request was for any and all records indicative of Singleton's assistance with KSP matters, including tips given to the KSP, no additional identifying information was provided for the KSP [to] locate the reports. In a good faith effort to try to comply with the initial request, a precursory search was conducted to attempt to locate records pertaining to both "Ernest" and "William" Singleton, and records for multiple people throughout the Commonwealth with either name were located. Without additional identifying information for Singleton, the KSP could not verify the subject of the reports to be the correct Singleton that the records are sought for.
Further, please note that the KSP has 16 State Police Post Branches, 6 Commercial Vehicle Enforcement Regions, and multiple other Special Investigative Branches throughout the state. Appellant provided no information as to where or how the assistance was provided by Singleton, which would cause undue burden to the KSP to search a vast number of records in an attempt to locate any records for Singleton, only to then be unable to verify that any records that might be found pertain to the correct Singleton.
In addition, "tips given" is not a specific, identified, limited class of information. The "tips" could be construed as documentation pertaining to Cooperating Witness/Confidential Informant records, "tips" provided simply by calling any one of the 25+ investigative branches, "tips" provided by calls to one of multiple KSP toll-free hotlines, or "tips" provided to a KSP employee in person.
Therefore, after a preliminary attempt to find responsive records, KSP argues that it was unable through reasonable effort to identify and locate the records based on the information in the request.
With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
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.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection. ? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Accordingly, we have often held that "blanket requests for information on a particular subject need not be honored. " OAG 90-83; see also 95-ORD-108 and opinions cited therein. Thus, we held that a request to the City of Louisville for "all items pertaining to UPS and the airport expansion" was properly denied for lack of specificity. OAG 91-58 (emphasis omitted). Similarly, a request for "[a]ll memoranda, correspondence and/or documentation of whatever kind and nature regarding [a certain employee] not included in her personnel file" was insufficiently specific. OAG 90-83. 1
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, as the agency's response pointed out, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
In 00-ORD-79, we found that a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ? from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description:
Mr. Mabry provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
Here, the request was for "[a]ny and all [records] referencing or containing the name of Ernest William Singleton or Will Singleton from 2010 to the present," which is no more precise a description than was given in 00-ORD-79.
Although Mr. Metzger argues that he identified a limited class of records, he is incorrect in stating that the request was limited to "records indicative of Mr. Singleton's assistance with Kentucky State Police matters." On the contrary, the letter expressly stated that the request "includes, but is not limited to," such records. "Any and all" records mentioning Mr. Singleton were the object of the request.
Furthermore, we disagree with the assertion that any part of the request identified a class of records. Although Mr. Metzger identified a date range for the records, his request did not describe records by type, origin, county, or any identifier other than relation to a subject. We do not accept the premise that "records indicative of assistance" is an identifiable class or type of records; it is merely a description of subject matter. Likewise, as Ms. Perkins indicates, "tips" is not a category describing a record. Moreover, the subject of the request was a person identified by name only, which evidently was insufficient to enable the KSP to determine the right person. Under these circumstances, the KSP did not violate the Open Records Act by requiring greater specificity.
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 proceedings.
Distribution:
Edward L. Metzger III, Esq.Morgain M. Sprague, Esq.Ms. Emily M. Perkins
Footnotes
Footnotes
1 To whatever extent our prior decisions may have applied a "reasonable particularity" standard to requests for on-site inspection of records, they have been implicitly overruled by Com. v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Our analysis here is concerned with requests for copies by mail under KRS 61.872(3)(b).