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 Middletown Fire Protection District violated the Kentucky Open Records Act in partially denying Thomas Stone's July 30, 2013, request for the following: 1) "[a]ll records of the Middletown Fire Protection District showing all employees and volunteers, their certifications, trainings, qualifications, complaints against, hours worked, and pay for the years 2003 through 2013"; 2) "[a]ll records of income and expenses for the same time period"; 3) "[a]ll records containing the name Thomas Stone or any form thereof that the MFPD can reasonably ascertain to be the same Thomas Stone requesting these records"; 4) "[a]ll records showing how the Fire District changed or ignored the Louisville Metro Ordinance that forbids allowing a loading zone in a fire lane when they gave permission to Woodside Village to park the entire length of the fire lane on Trista Dr. designating it a 'loading zone [,]' including ALL citizen input"; 5) "[a]ll records of all loading zones designated by the Fire District for the calendar years 2000-2013"; 6) "[a]ll records showing all involvement of the Fire District with regards to painting all the curbs in Woodside Village EXCEPT the designated fire lane" ; and 7) "[a]ll records of maintenance of all equipment owned or leased by the Fire District for 2003-2013."
In a timely written response, Bryan J. Dillon, legal counsel for MFPD, denied Item 1 of Mr. Stone's request, advising that complying would require MFPD personnel "to review 13 years of personnel files" in order to redact information protected under KRS 61.878(1)(a), and that conducting such a review in order to comply would "cause MFPD 'an unreasonable burden in producing public records' as set out in KRS 61.872(6) ." The MFPD denied having "changed" or "ignored" any Louisville Metro Ordinance and thus advised that MFPD "has no records responsive to this request." Likewise, MFPD denied the existence of any records documenting the involvement of the agency relative to painting all of the curbs in Woodside Village "EXCEPT the designated fire lane. " (Original emphasis.) MFPD cannot produce that which it does not have nor is the agency required to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005) in order to refute an unsubstantiated claim that documents responsive to either category were created or still exist. See 13-ORD-024 (copy enclosed). Mr. Dillon explained that no equipment maintenance records exist prior to 2008 "as they have been destroyed pursuant to Kentucky's record retention policies [presumably including Records Series L4830 of the Fire Department/District Records Retention Schedule , entitled Vehicle Maintenance File, the retention for which is one year]." The records have been maintained electronically since then, he continued, and you "may review these records with the assistance of an MFPD employee" on August 6. MFPD otherwise agreed to make all existing responsive documents available for Mr. Stone to review at MFPD Station 1 on Tuesday, August 6, 2013, at 8:00 a.m.
Mr. Stone initiated this appeal shortly thereafter, clarifying that he requested personnel records for a period of 10 years rather than 13 , and that he "asked for any amount of the records" but was denied access entirely. Mr. Stone further explained that "being a person with disabilities" he advised Mr. Dillon that he will need some accommodations, including permission to use a service animal and/or his assistant; that Mr. Dillon "offered some time on Friday" but he declined as he would prefer to wait until he is provided with access to all existing responsive documents instead of reviewing the documents piecemeal; and that he "asked for the records in their original form instead of records manufactured and transformed into another format." Upon receiving notification of Mr. Stone's appeal from this office, Mr. Dillon responded on behalf of MFPD. He advised that when he delivered the request on July 30, Mr. Stone told Assistant Chief Stigers "that he would drop the request if Assistant Chief Stigers would change the loading zone [at Woodside Village] back to a fire lane. " If Assistant Chief Stigers refused, Mr. Dillon asserted, "Mr. Stone stated that he would make MFPD produce over 50,000 pages of records." Both Assistant Chief Stigers and MFPD Administrative Assistant Patty Kryza witnessed the statement; Mr. Dillon provided their August 12, 2013, affidavits to that effect with his August 12 appeal response.
Notwithstanding the "obvious purpose" of the request, Mr. Dillon asserted, "that being an attempt to coerce MFPD to take action in conformity with Mr. Stone's wishes," MFPD "endeavored in good faith pursuant to" the Open Records Act, to provide the documents requested. With the exception of the requested personnel records, MFPD "basically agreed to provide all of the documents that were in its possession that were responsive to Mr. Stone's request[.]" That refusal, Mr. Dillon reiterated, "was due to the burdensome nature of having to review ten years of records of all MFPD employees in order to redact" information protected under KRS 61.878(1)(a). Quoting the language of KRS 61.872(6) and 61.878(1)(a) , Mr. Dillon argued that "[i]t is not difficult to imagine the myriad of pieces of information of a personal nature that will be contained in the requested personnel records. These would include the identity of dependents, medical conditions, rates of compensation, social security number, home addresses and telephone numbers, letters of reprimand and so forth." Mr. Dillon cited Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994) and Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2010) in support of the assertion that "MFPD has a duty to review and redact these records prior to allowing inspection. " MFPD further advised "there was never any denial to Mr. Stone" regarding use of a service animal or his assistant. Rather, the agency "remains accessible, and will make any necessary reasonable accommodations for Mr. Stone's disabilities." In closing, Mr. Dillon argued that Mr. Stone's request "is clearly meant to harass. That this is his motive is bolstered by his stated intention" to bring a claim for denial of reasonable accommodations for his disability where no such denial has occurred.
Upon receipt of Mr. Dillon's response, however, Mr. Stone explained that he believes Assistant Chief Stiger's affidavit "was incorrectly transcribed" as he actually said that if MFPD "would see that the curb was painted as ordered in Captain Dittmer's letter dated February 27, 2013." The loading zone remains a fire lane, Mr. Stone noted, "and if I wanted it removed, I would have done that through" Louisville Metro Government channels. Mr. Stone acknowledged that, as with many disputes arising under the Open Records Act, there is more happening in the background than has been addressed in the correspondence of record. Simply put, none of those issues can be resolved in the context of an Open Records Appeal. This office makes no finding relative to any potential claim regarding the alleged failure to provide necessary accommodations or the underlying complaint regarding the loading zone/ fire lane, etc., both of which are beyond our purview. See 99-ORD-121 ("The broader concerns and peripheral issues raised are not justiciable in this forum as the Attorney General 'is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)'"); 12-ORD-136. KRS 61.880(2)(a) narrowly defines our scope of review in resolving disputes arising under the Act.
In addressing the alleged comment regarding 50,000 pages of records, Mr. Stone acknowledged saying as much but explained that he answered the question he was asked "with a guess based on no real information about the workings of a city fire district. If each bill, payment, and employee record is on a separate piece of paper and they have a lot of fire stations and a lot of employees it could be A LOT of records." (Original emphasis.) During his telephone conversation with Mr. Dillon, however, Mr. Stone asked if MFPD could provide him with records for any of the years and Mr. Dillon "stood fast at his total denial." Mr. Stone asserted that if MFPD would act in good faith, "we could pare it down" to a manageable level; he clarified that he never implied or suggested that he wanted or would accept unredacted personnel records. Withdrawal of his request would have been appropriate if MFPD "would finish what Captain Dittmer certified would be done in his signed letter" because his "allegations and beliefs" would be moot and it would then be unethical to "still ask for the time of the MFPD." With regard to application of KRS 61.872(6), Mr. Stone argued that a requester "must seriously, repeatedly annoy a person with no legitimate purpose" for the agency to successfully invoke that provision and it also states that "repeated requests meant to disrupt the agency's essential functions" are required. Mr. Stone noted that Mr. Dillon "offers only rumor and conjecture as evidence" and maintained that his request was not without a legitimate purpose.
When viewed in light of Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the record on appeal does not establish by "clear and convincing evidence" that complying with Mr. Stone's request for the specified personnel records would unreasonably burden MFPD, or that Mr. Stone has made repeated requests, let alone that his July 30 request was merely intended to disrupt other essential functions of the agency. "Given the gaping factual disparity between" the parties' accounts of his purpose or motivation, the only argument made to justify the agency's invocation of KRS 61.872(6) except for the necessity of redacting information, the Attorney General is unable to conclusively resolve this issue. 13-ORD-062, p. 3; 09-ORD-120 (noting "this office is not equipped to resolve factual dispute [when presented with conflicting factual narratives]")(citation omitted); 12-ORD-152. Although Mr. Stone's admitted comment would certainly lend itself to a disfavorable interpretation, especially when viewed in isolation or without adequate context, his explanation of the reason for the statement is arguably credible as well.
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." 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. MFPD has not done so here, relying instead upon the necessity of redacting personal information contained in personnel records generally. See 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); 11-ORD-084 (claim that complying with request involving "an estimated [6,000] file folders contained in [20] file cabinets and [200] storage boxes" would be unreasonably burdensome was not established with clear and convincing evidence given that some of burden would not have existed if agency had properly maintained all records per applicable retention schedules and it failed to identify the specific difficulties associated with redaction, etc.); 12-ORD-152; 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 03-ORD-012 (departing from a line of decisions dating back to 1988), the Attorney General held that the Berea Independent School District had improperly denied a request for the complete personnel records of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id., p. 7; 08-ORD-175. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. In 03-ORD-117, the Attorney General extended this analysis to an inmate's request for his institutional file, determining that the request "was sufficiently specific . . . ." 03-ORD-117, p. 1. The Department of Corrections appealed the Attorney General's Open Records Decision, and in April 2008, the Kentucky Supreme Court affirmed our interpretation of KRS 61.872(2) in Commonwealth v. Chestnut, 250 S.W.3d 655, 664-665 (Ky. 2008). Of particular significance, 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 Chestnut's request satisfied the standard of 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. The Court further noted that he was "required to do nothing more" than describe the record 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' argument regarding KRS 61.872(6), the Court noted the "high proof threshold" of KRS 61.872(6). Id. at 664. Finding that affidavits submitted by DOC were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . .," the Court was nevertheless "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but was not persuaded that the request "automatically constitute[d] an unreasonable burden. " Id. at 664. The Court determined that 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 under KRS 61.872(6)," as that is an existing statutory obligation under KRS 61.878(4). Id. at 665.
Rejecting the contention that it constituted an "undue hardship to comply with inmate requests such as Chestnut's because each inmate has numerous 'files,' which may be physically located at more than one spot across the Commonwealth," the Court noted that the DOC's "method of organizing its files is clearly beyond our purview," but suggested that it could "reorganize its materials in such a manner as to more easily facilitate open records review by inmates, the general public, and DOC personnel. " Id. at 665. In addition, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure, " and concluded that the fact "many inmates' files, such as Chestnut's, are voluminous" does not constitute a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor did the agency's "method of organizing its files . . . ." Id. The Court held that 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.
Applying the guidelines of Chestnut here, this office is unable to find in favor of the agency based upon the limited relevant evidence presented. MFPD has made no attempt to "forecast what its actual burden would be." Chestnut at 4. There is nothing in the record indicating the specific difficulties, if any, in locating or accessing the records nor is there any estimate of how much time compliance would actually require, the actual number of employees or the corresponding number of personnel files implicated, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. As noted, the necessity of redacting information protected under KRS 61.878(1)(a), standing alone, simply does not suffice as that is an existing statutory obligation per KRS 61.878(4). Further, the Attorney General has recognized that "the decision to [separate protected information] rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." 97-ORD-6, p. 4, quoting OAG 89-76; compare 11-ORD-173. The fact that MFPD will have to "separate confidential documents from nonconfidential documents [cannot] serve as a bases for denying a request under KRS 61.872(6)." 00-ORD-180; 07-ORD-205. Although Mr. Stone's request may implicate numerous files, a "voluminous" request is "not necessarily unreasonably burdensome. " Further, a close reading of Mr. Stone's request confirms that he did not ask for all personnel records or even all of those mentioned in the agency's response; instead, he asked only for those records pertaining to qualifications and training, including any certifications, "hours worked" and "pay," i.e., payroll records, which may be maintained separately from the MFPD personnel files, and complaints, if any, that were filed against employees during that period.
If the records have been properly managed and maintained, MFPD should be able to access them without serious difficulty, and particularly in light of Mr. Stone's expressed willingness to "pare" down the volume of records implicated with assistance if necessary. To hold otherwise would contravene the mandate of KRS 61.8715, requiring public agencies to maintain records in such a way as to facilitate access. For example, Records Series L4821, entitled "Personnel File Duplicate (Official copy is maintained in the government's personnel office)[Series L5034 of the Local Government General Schedule] ," containing daily attendance, time sheets, certifications, "education material," etc. provides that such records must be destroyed "after termination of employment and review by personnel office." Accordingly, the files of any former employees have presumably been destroyed; likewise, Series L4819, "Training Records File," is "used to document the ongoing training necessary for certification as a firefighter" and may contain, among other things, an employee's "certificate from fire schools," fire training tests, etc. The Disposition Instructions provide that "training verification data must be transferred to the Master Personnel File. Destroy other when obsolete or updated."
As the Attorney General has frequently observed, there is ample legal authority to guide a public agency in determining what information can be properly redacted from personnel records. In particular, the Attorney General held that a public employee's "name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. " 03-ORD-012, p. 8, citing 97-ORD-066, p. 5; 13-ORD-074. Additionally, "reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. . . . Letters of resignation submitted by public employees have also been characterized as open records." Id. See 10-ORD-226 (reaffirming the public's right of access to public employee payroll records notwithstanding the "minimal intrusion on personal privacy that disclosure may occasion" and finding agency's reliance on KRS 61.878(1)(a) was misplaced). Conversely, this office has upheld agency denials of access to a public employee's home address and telephone number, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. Id. "Such matters are unrelated to the performance of public employment. " Id. These opinions/decisions "are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090. With the exception of evaluations of public employees, the "privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. See Cape Publications, above (reaffirming the public's general right of access to public employee personnel files and rejecting "bright-line rule completely permitting or completely excluding from public disclosure employees' performance evaluations" in favor of a case-by-case approach).
Based upon the foregoing, this office finds that MFPD is permitted to redact any excepted material from the documents responsive to Mr. Stone's request, but is required to make any nonexcepted material available for inspection or copying after MFPD identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) and KRS 61.880(1). Pursuant to KRS 61.872(1) and 61.872(3)(b), MFPD is required to make available for inspection all nonexempt responsive documents (or portions thereof) it possesses during regular business hours, and to provide suitable facilities 1 for the exercise of this right.
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:
Thomas StoneBryan J. DillonJeff Riddle
Footnotes
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