Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Louisville Metro Police Department violated the Open Records Act, or subverted the intent of the Act, in the disposition of Thomas Stone's September 26, and September 30, 2013, requests 1 for records relating to the department and named employees of the department. Having reviewed the record in each appeal, we find that because the parameters of Mr. Stone's requests were broad, the department did not fully comply with the requirements of the Act in responding to those requests. Specifically, we find that although the department disclosed some nonexempt records to Mr. Stone, the record on appeal confirms that the department:
. did not provide "sufficient information about the nature of the withheld records (or the categories of withheld records) . . ." to permit Mr. Stone to dispute the department's claim of exemption and this office to assess the claim;
. assessed copying fees on Mr. Stone notwithstanding his request to inspect the records before obtaining copies;
. postponed access to nonexempt records beyond the statutorily mandated three business days; and
. did not provide clear and convincing evidence of the claimed unreasonable burden in producing incident reports generated by Division 8 for a five month period.
A summary of Mr. Stone's requests, the agency's responses, and our analysis follows.
On September 26, 2013, Mr. Stone submitted an open records request containing three subparts. In the first subpart, he requested "all records evidencing Officer Brandon L. Clark's activities with LMPD from 9-1-2012 until 9-1-2013," including reports he wrote or signed, schedules, qualifications, application, training, complaints, and reprimands. In the second subpart, he requested "all records on Sharon King" including her application, training, complaints, salary, qualifications, and work history from September 26, 2003, to September 26, 2013. In the third subpart, he requested "all incident reports produced or caused to be produced by all officers of Middletown Station, Division 8, from 11-1-2012 until 4-10-2013."
The department responded to Mr. Stone's September 26 request on October 1, characterizing subparts 1 and 3 of his request as overly burdensome. With reference to "records evidencing Officer Clark's activities," the department explained, Mr. Stone's request implicated "potentially thousands of records, stored in different locations, and in multiple formats and forms that would need to be located and searched," that the suggested timeframe of one year "further multiplies the difficulty and unlikelihood that records could be located," and that the department "does not have the ability to search an officer's name in a database or locate all records associated with that employee." 2 The department agreed to undertake a search for records responsive to the remainder of subpart 1 of Mr. Stone's request, but advised him that "due to the scope and volume of the request" its response would be issued on October 30. With reference to incident reports generated by Division 8, the department indicated that during the specified time frame the division employed "70 to 90 employees," that "dozens of reports are produced daily, which amounts to thousands of pages of records annually," and that "those documents would need to be retrieved and then manually reviewed for exempted information." 3 With reference to subpart 2 of Mr. Stone's September 26 request, relating to "records on Sharon King," the department agreed to produce her redacted personnel file by October 11, 2013.
On October 11, 2013, the department issued a final response to Mr. Stone's September 26 request, producing 3 pages responsive to subpart 1 of his request. The department indicated that "no Professional Standards Unit records [are] available . . .[, because] none exist," and that "19 pages of Performance Evaluations [were] exempt from release in protection of personal privacy pursuant to KRS 61.878(1)(a)." In response to his request for "records on Sharon King," the department produced 18 pages of responsive records, indicating that "redactions appear in protection of personal privacy pursuant to KRS 61.878(1)(a)." Finally, the department continued to assert that subpart 3 of his request, relating to incident reports generated by Division 8 in a five month period, was over burdensome.
On September 30, 2013, Mr. Stone asked "to inspect all records associated with all complaints and investigations of Heather Gregory . . . and all reports generated because of these complaints." 4 The department responded by letter dated October 1, 2013, advising Mr. Stone that, "due to the scope and volume of the request," he could expect a response on October 30, 2013. On October 11, the department issued a "partial response" to that portion of the request relating to email. The department indicated that there were "approximately 5,000 to 6,000 pages of documents generated from email records," explaining in subsequent email that these records "may or may not contain discussion of any complaints." 5 As of October 11, "approximately 1,500 of the 5,000 to 6,000 pages [were] available . . . ." Mr. Stone thereafter amended his request to include only those records relating to his complaint against Officer Gregory. Having reviewed the records, the department mailed Mr. Stone "180 pages of emails responsive to [his] request as amended," advising him that "[r]edactions [were] made for the following reasons: (1) protection of personal privacy pursuant to KRS 61.878(1)(a); (2) preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency . . . pursuant to KRS 61.878(1)(i); and (3) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended . . . pursuant to KRS 61.878(1)(j)." Dissatisfied with the response in his September 30 request, which reached Mr. Stone on November 8, 2013, 6 as well as the department's response to his September 26 request, Mr. Stone initiated two open records appeals. These appeals are consolidated for purposes of review.
1. Record on appeal contains insufficient information identifying responsive records (or categories of records) withheld
As noted, the department expended considerable effort in attempting to locate, and produce for inspection, nonexempt records responsive to Mr. Stone's requests, but its partial denial of those requests did not fully satisfy the requirements of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) In construing this provision, the Kentucky Court of Appeals has recognized that the "language of the statute directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the court concluded, does not "even remotely comply with the requirements of the Act . . . ." Id.
Recently the Kentucky Supreme Court amplified on this position, observing:
Open Records Act disputes are notorious, of course, for posing unique challenges to our usual adversarial method of dispute resolution. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested, in ORA cases only the agency knows what is in its records. In some cases, the court can assess an agency's exemption claims by inspecting the pertinent records in camera , but when the records are voluminous that is possible only to a limited extent, and even when in camera review is possible, the court must take care not to assume the role of adversary. Rather, the court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing --by affidavit; by oral testimony; or, if necessary to preserve the exemption, by in camera production-- to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release 7 to permit the requester to dispute the claim and the court to assess it. If disclosure even to that limited extent would defeat the exemption, then in camera inspection may be necessary, but those cases should be the exception.
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013) (emphasis added). The department's responses do not contain sufficient information to enable us to discern what records were withheld other than nineteen pages of performance evaluations relating to Brandon L. Clark and deemed exempt under KRS 61.878(1)(a). Indeed, it is unclear whether other responsive records were located but deemed exempt and, if so, on what basis.
In simple terms, Mr. Stone requested access to:
. records relating to Brandon L. Clark as an employee of the department from September 2012 to September 2013;
. records relating to Sharon King as an employee of the department from September 2003 to September 2013;
. incident reports generated by Division 8 from November 1, 2012, to April 10, 2013; and
. complaints against Officer Heather Gregory, investigative records relating to those complaints, and reports generated as a result of those complaints and investigations. 8
Acknowledging, at least once, that the records compiled "may or may not" be responsive to his request, 9 the department initially identified thousands of records the review of which necessitated postponement of a response. It ultimately produced two hundred records. 10
In response to Mr. Stone's request for:
. records relating to Brandon L. Clark, Mr. Stone received 3 pages (excluding nonexistent Professional Standards Unit records and performance evaluations);
. records relating to Sharon King, Mr. Stone received 18 pages;
. incident reports generated by Division 8 in a five month period, Mr. Stone received no records; and
. records relating to his complaint against Heather Gregory, Mr. Stone received 180 pages of email.
Based on our review of the record on appeal, it is unclear whether the department located and produced Brandon L. Clark's application, training records, and work schedules; Sharon King's application, training records, work history, and complaints; or responsive records other than email relating to Mr. Stone's complaint against Heather Gregory, such as investigative records or final reports. The department's assertion that "[t]here are no documents being withheld as . . . he has received every nonexempt document in [the department's] possession responsive to his requests" suggests that "exempt" documents were withheld. It is not sufficient in light of the department's statutorily assigned burden of proof and the Supreme Court's direction that it provide "sufficient information about the nature of the record[s] withheld . . . to permit [Mr. Stone] to dispute the claim and the courts to assess it." City of Ft. Thomas at 851. Given this directive, we believe it is incumbent on the department to provide Mr. Stone with "a statement of the specific exception authorizing the withholding" of any record he requested that was withheld and explain "how the exception applies to the record[s] withheld" with sufficient information to permit him to dispute the claimed exemptions. KRS 61.880(1); Cincinnati Enquirer at 851.
2. Assessment of copying fees where the right to inspect was asserted
KRS 61.872(3)(a) authorizes a requester to access public records by means of onsite inspection. KRS 61.874(1) authorizes a requester to obtain copies of the records "upon inspection. " Since 1992, the Open Records Act has required agencies to mail copies of public records to requesters who precisely describe records that are readily available within the agency," if requested , upon prepayment of reasonable copying and postage charges. KRS 61.872(3)(b). 11 If all conditions are met, the decision whether to access records by onsite inspection or by receipt of copies through the mail rests with the requester, in this case Mr. Stone. 03-ORD-128. Mr. Stone expressed his preference to inspect the requested records before obtaining copies in each of his requests. Nevertheless, the department billed him for copies of records in its October 31, 2013, response to his September 30, 2013, request. The record on appeal therefore does not fully support its assertion that it "offered to accommodate each request Mr. Stone has made to inspect the records." 12 Acknowledging that in some cases the department extended offers to Mr. Stone to conduct onsite inspection, its election to mail him copies of responsive records and collect copying and postage fees, notwithstanding his express wishes, was improper.
3. Undue delays in production of responsive records
KRS 61.880(1) mandates disclosure of nonexempt public records within three business days. The only statutorily recognized basis for postponing access to nonexempt records in an agency's custody is found at KRS 61.872(5). In 01-ORD-140, the Attorney General analyzed this provision:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). . . . [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) In OAG 92-117 . . . this office made clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein.
01-ORD-140, pp. 3-4 (emphasis in original). The department responded to each of Mr. Stone's requests by advising him that it required additional time for response due to the scope and volume of the requests. While we agree that in some instances the parameters of Mr. Stone's requests were broad, we do not agree that all of his requests could be so characterized.
Mr. Stone's September 30 request for complaints against Officer Heather Gregory, and investigative records and reports related thereto, did not constitute a request that was broad in scope. A request for complaints leveled against a public employee, and records relating to those complaints, constitutes "a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure." Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F. Supp. 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). Assuming, for the sake of argument, that Officer Gregory was the subject of multiple complaints, a fact that does not appear in the record on appeal, Mr. Stone amended his request to include only those records relating to his complaint against Officer Gregory, thereby substantially narrowing the scope of the request.
The same can be said for Mr. Stone's requests to inspect records documenting Brandon L. Clark's and Sharon King's employment. His requests were "adequate for a reasonable person to ascertain [their] nature and scope." Chestnut at 661. In describing the record sought, Mr. Stone was "required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file [or files] that he had never seen." Id. For unexplained reasons, the department focused on the email component of each request, expending its resources in a search for records that it acknowledged "may not" have been responsive to his request. 13 In these cases, postponement of access to nonexempt public records was improper.
4. Invocation of KRS 61.872(6) unsupported by clear and convincing evidence
As noted, Mr. Stone requested incident reports generated by Division 8 in a five month period. The weight of legal authority supports the view that "police incident reports are matters of public interest . . ., are public records . . ., [and] the public should be allowed to scrutinize the police to ensure they are complying with their statutory duties." 09-ORD-201, p. 5 citing Cape Publications v. City of Louisville, 147 S.W.3d 731, 733 (Ky. App. 2003). These authorities support Mr. Stone's right of access to incident reports generated by Division 8 in a five month period unless the department established, by clear and convincing evidence, that fulfillment of Mr. Stone's request imposed an unreasonable burden on it. The record on appeal does not contain clear and convincing evidence of an unreasonable burden.
In Commonwealth v. Chestnut , above, the Supreme Court rejected an agency's characterization of an inmate request for the nonexempt records in his inmate file as overly burdensome within the meaning of KRS 61.872(6). That statute provides:
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 .
(Emphasis added.) Acknowledging that "the task of determining what materials [were] properly subject to [the] inmate's request [was] tedious and time-consuming work," the Court nevertheless emphasized that "a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence. '" Id. at 664. Continuing, the court opined, "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. " Id. The Court referenced open records decisions of this office recognizing that "a voluminous request is not necessarily unreasonably burdensome. " Id. at 666 citing 07- ORD-205, 2007 WL 2849566 at 6. In the appeal before us, the department has not met the high proof threshold by showing the existence of an unreasonable burden in producing nonexempt incident reports generated by Division 8 in a five month period.
The department indicates that 70 to 90 employees were assigned to Division 8 in the five month period identified in Mr. Stone's request, but does not indicate how many of these employees were police officers who generated incident reports. The department suggests that "dozens of reports are produced daily" but gives no estimate of the number of reports implicated by the request, the amount of time required for review and redaction of the reports, or the potential cost to the agency associated with production of the records. Here, as in Chestnut , the department fails to present sufficiently clear and convincing evidence of an unreasonable burden.
5. Conclusion
The record in each appeal before us confirms that the Louisville Metro Police Department expended efforts to comply with Mr. Stone's requests. However, the record also confirms that the Department's handling of Mr. Stone's request resulted in delays in the production of responsive records. Because the record on appeal is incomplete, we cannot determine whether the department made adequate efforts to fulfill his requests. It is therefore incumbent on the department to review each of his requests to confirm disclosure of all nonexempt records, identify in writing all exempt records withheld, and the statutory bases for withholding those records. If it continues to assert that production of incident reports generated by Division 8 in a five month period imposes an unreasonable burden, the department must provide clear and convincing evidence of that burden or produce the reports for Mr. Stone's inspection. Until it has done so, we cannot affirm Louisville Metro Police Department's position that it has "fully complied with its obligations under the Open Records Act with respect to Mr. Stone and his various requests."
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.
# 417, 424, 427
Distributed to:
Thomas StoneSharon KingSarah Stewart Ashburner
Footnotes
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