Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in responding to attorney Richard Clay's July 17, 2013, request for:
1. A copy of any dispatch logs and recordings for July 14, 2013, from midnight to noon;
2. A copy of any investigative report concerning [his client].
Mr. Clay's request was addressed to Captain Lisa Rudzinski, Kentucky State Police Post 7, Richmond, Kentucky. He represents the victim of a crime that occurred on July 14, 2013. We find that KSP mooted any issues that related to Mr. Clay's second enumerated request by releasing the KYIBRS report involving his client to him. We further find that because Mr. Clay's first enumerated request did not contain a precise description of records he wished to access by receipt of copies, and the records were not readily available within the agency, KSP properly denied that request.
In a response dated July 24, 2013, KSP denied Mr. Clay's request. Relying on KRS 61.872(3)(b) and KRS 61.872(6), KSP argued that his first enumerated request did not "precisely describe the records sought," and that "production of all dispatch logs and recordings for a twelve hour period would be an undue burden upon the KSP." KSP explained that to fulfill his request:
KSP would require the 911 Operators that are certified to utilize the terminals to produce records for 9 recorded lines, recorded radio transmissions, and computer terminals with access to the dispatch log system, which averages approximately 140 calls per day, in addition to the radio transmissions, which average 880 transmissions per day, as well as the dispatch logs, which average over 60 per day. This activity would shut down an essential government function in that it would halt the dispatchers' ability to answer emergency calls, dispatch officers to scenes, and prevent dispatchers from verifying if a suspect has any warrants or is a danger to the public or law enforcement officers. Further, once these records have been obtained, each record would have to be reviewed to determine if it would be exempt from production, such as relating to an open and ongoing investigation, or contains information obtained from a confidential centralized intelligence database. The KSP cannot be caused to shut down a dispatch center that receives emergency calls in order to comply with an overly broad open records request.
KSP raised the same objections to Mr. Clay's second enumerated request.
Dissatisfied with KSP's response Mr. Clay initiated this appeal on July 30, 2013, asserting that his request involved Post 7 only and was limited to a twelve hour period. Characterizing the agency's response as a "canned denial," he maintained that KSP "made no effort to determine the nature and extent of those records, relying instead on statistics from a press release." He challenged the agency's claim that his request for "any investigative report relating to his client was insufficiently precise," ascribing the agency's "confusion" to the fact that the report "contains a heading 'KYIBRS Report.'"
In supplemental correspondence directed to this office after Mr. Clay initiated his appeal, KSP acknowledged that it "did not attempt to comply with the first enumerated request as any attempt to provide all dispatch records for a twelve hour period would create an undue burden upon the agency." KSP refuted Mr. Clay's allegation that no attempt was made to locate a record or records responsive to his second enumerated request. Noting that "no report was in existence as of the date of its [July 24] response," KSP explained:
Upon receipt of the instant appeal, another search for responsive records was conducted. In the time that has elapsed, the report has been generated. (Please note that the crime was reported on July 14, 2013; Appellant's request was dated July 17, 2013; the KSP's response was issued July 24, 2013. In compliance with KSP policy OM-C-01, Troopers have ten (10) days to submit the initial KYIBRS report, which would be July 24, 2013; therefore, the report was not available at the time of the initial request.)
KSP indicated that a copy of the KYIBRS would be mailed to Mr. Clay, thus mooting any issues relating to his second enumerated request. 40 KAR 1:030 Section 6. 1
We find that KSP did not violate the Open Records Act by refusing to honor Mr. Clay's first enumerated request for "[a] copy of any dispatch logs and recordings for July 14, 2013, from midnight to noon." Although Mr. Clay directed his request to Post 7, he did not expressly limit his request to Post 7. Nor did he limit his request to dispatch logs or recordings relating to the incident involving his client. While his request may have been "adequate for a reasonable person to ascertain [its] nature and scope," 2 thus triggering the duty to permit onsite inspection as contemplated by KRS 61.872(2), it was not "precise" as contemplated by KRS 61.872(3)(b). Nor were the records "readily available within the public agency, " as contemplated by KRS 61.872(3)(b) .
In a decision issued not long after the Open Records Act was amended to eliminate the requirement that requesters inspect public records as a precondition to obtaining copies and to impose the requirement that public agencies mail copies to requesters who reside or have their principal place of business outside the county in which the public records are located, this office analyzed the recently amended KRS 61.872(3) which, now as then, provides:
(3) A person may inspect the public records:
We observed:
The Open Records Act contemplates records access by one of two means: Onsite inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. A requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely describes the records and they are readily available within the agency.
97-ORD-46, p. 2, citing 95-ORD-52 and 96-ORD-186.
Two years later, we expanded on this analysis:
KRS 61.872(3)(b) places an additional burden on requesters who wish to access public records by receipt of copies through the mail. Whereas KRS 61.872(2) requires, generally, that the requester "describe" the records which he wishes to access by onsite inspection, KRS 61.872(3)(b) requires the requester to " precisely describe[]" the records which he wishes to access by mail. In construing KRS 61.872(3)(b), this office has observed:
. . .
A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.
. . .
The third requirement (that the records be "readily available within the public agency" ) permits public agencies to avoid the duty to mail copies if the requested records are widely dispersed or otherwise difficult to access. In such instances, agencies would be forced to make extraordinary efforts to identify, locate, and retrieve the records in order to copy and mail them to the applicant. Consistent with the rule that "[public] agencies and employees are the servants of the people . . . , but they 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, we believe that if the records which the applicant requests to access by receipt of copies through the mail cannot be readily accessed and retrieved within the public agency, the agency cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located, and he precisely describes them. Under these circumstances, the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours.
99-ORD-63, p. 3, 4.
We trust that Mr. Clay satisfies the first requirement of KRS 61.872(3)(b) by residing or having his principal place of business outside of the county in which the records are located, and that he was willing to satisfy the fourth requirement of KRS 61.872(3)(b) by prepaying for copies of the requested dispatch logs and recordings. Even if this is the case, however, he did not satisfy the second and third requirements of KRS 61.872(3)(b) by providing a precise description of records that he wished to access by receipt of copies, and, as described, those records were not readily available within KSP.
As noted, Mr. Clay did not expressly state that his request was confined to Post 7. Moreover, he did not precisely describe the records apparently sought by confining his search to dispatch logs and records from the specified twelve hour period that related to the incident involving his client. 3 Because he failed to do so, KSP was constrained to interpret Mr. Clay's request broadly. As KSP documents, such a request implicates a large number of responsive records the retrieval and review of which necessitates extraordinary effort. Whether this effort is sufficient to satisfy the clear and convincing standard for establishing an unreasonable burden found at KRS 61.872(6), as KSP argues in the alternative, is unclear. 4 It is, however, clear that the efforts described support KSP's position that the requested records are not readily available within the agency.
Mr. Clay failed to precisely describe the records he wished to access by receipt of copies. Those records, as described, were "difficult to access, . . . [necessitating] extraordinary efforts to identify, locate, and retrieve, " and were not, therefore, "readily accessible within the agency." 99-ORD-63, p. 4. As in 99-ORD-63, KSP "cannot be compelled to deliver copies to him though he resides and works in a county other than the county where the records are located . . . ." Its refusal to do so was justified under KRS 61.872(3)(b).
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:
Richard ClayEmily M. Perkins
Footnotes
Footnotes
1 40 KAR 1:030 Section 6 states:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
2 Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
3 It is, of course, conceivable that Mr. Clay wished to obtain any number of unrelated dispatch log entries and recordings, in addition to the log entries and recordings relating to the incident involving his client, that KSP generated in that twelve hour period. Such a request is not improper under the Act, but, as this appeal demonstrates, greatly exacerbates the challenges of retrieval, redaction, and production.
4 Commenting on the "high proof threshold" a public agency faces when it invokes KRS 61.872(6), the Kentucky Supreme Court determined, in Commonwealth v. Chestnut , above at 664-665, that:
[T]he General Assembly has already mandated that all public agencies . . . must separate materials exempted from disclosure in a document from materials that are subject to disclosure. Thus, the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden.