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 Louisville Metro Police Department violated the Kentucky Open Records Act in the disposition of Tom Stone's December 30, 2013, request for "all of the emails sent to or from Sharon King for the last six calendar months made available for inspection and copying. Both personal and business emails are included in this request up until 11:45 AM on December 30, 2013." If some information must be redacted, Mr. Stone continued, "because of privacy or attorney privilege redact what you believe is legal, but leave the names and dates at a minimum." By letter dated January 3, 2014, Paralegal Sharon King advised Mr. Stone that LMPD would "require an additional twenty-one (21) days, up to and including January 24, 2014, to ascertain the feasibility of identifying, procuring, reviewing, redacting and producing records responsive to the request." Open Records Coordinator Dee Allen subsequently notified Mr. Stone, by e-mail dated January 8, that LMPD was "requesting clarification and narrowing of the request, i.e., provision of a subject matter on which to conduct a reasonable search and a more specific and narrow timeframe." As written, she advised, "your request is expected to produce over 8,600 records requiring a minimum of a three-minute review for each records [sic] to perform an assessment for claim of full or partial claim of exemption and/or redaction, if appropriate under the provisions of the Kentucky Open Records Act. " LMPD advised Mr. Stone did not believe that "expenditure of more than 430 hours of staff time in fulfillment of your broad and vague request" was reasonable under the provisions of the Act or existing legal authority. Thus, LMPD advised, "we are holding your request pending provision of clarification to allow for a reasonable search and provision of copies of nonexempt public records that may meet the description of your revised request." Given the breadth of Mr. Stone's request (which may be partially attributable to recordkeeping practices of LMPD), a reasonable extension of the KRS 61.880(1) time frame of three business days to identify, review, and release the records was justified; however, LMPD is not permitted to postpone access indefinitely.
Mr. Stone initiated this appeal by letter dated January 12, 2014, noting that when he previously requested e-mails of a named officer, he was informed that 6,000 pages of responsive documents existed, necessitating additional time for internal review and redaction, etc. However, those 6,000 e-mails ultimately "pared down to ZERO after Sgt. Bland spent '50' hours reviewing them," or two minutes per e-mail. Mr. Stone asked this office to determine if his request was "too vague, broad, and unreasonable under the Act" given that LMPD "gave a 'limited and perfunctory response....'" He further questioned whether Ms. King "is following the directives of the Kentucky Department for Libraries and Archives with regard to e-mails received, sent, and retained, by a public agency. 1"
Upon receiving notification of Mr. Stone's appeal from this office, Sarah Stewart Ashburner, Assistant Jefferson County Attorney, responded on behalf of LMPD. Having summarized the agency's January 7 letter and January 8 e-mail, she asserted that Mr. Stone has been "asking for voluminous records concerning any Metro Government employee with whom he is displeased. It is clear that his broad, and often vague, requests are intended to harass and annoy the unfortunate target of his resentment." According to LMPD, "[t]his is evidenced by the fact that after receiving the above-referenced e-mail from Ms. Allen, Mr. Stone filed another Open Records Request on January 16 asking for 'all of the email records sent to or from Dee Allen for the last six calendar months." Mr. Stone's "repeated abuse" of the Open Records Act, Ms. Ashburner argued, "clearly constitutes the type of behavior envisioned by the General Assembly when it authorized public agencies to deny requests pursuant to KRS 61.872(6)." LMPD maintained that "Mr. Stone's persistent requests for potentially voluminous records of marginal public interest - simply because he can - place a burden on LMPD and Metro Government resources, and are intended to disrupt other essential functions of the agency."
When viewed in light of recent decisions involving requests for a high volume of e-mails, and 12-ORD-097 in particular, Mr. Stone's request justifies a reasonable delay in providing access, given the number of records implicated as well as the necessity of reviewing each to ensure that any protected (as of yet unidentified) information is properly redacted; however, the request cannot be denied entirely. "Although Mr. [Stone's] request is unquestionably voluminous, and separating the excepted material per KRS 61.878(4) will certainly be 'time-consuming and tedious work,' neither this required 'winnowing process' nor the agency's 'method of organizing its files . . .' is clear and convincing evidence that compliance would constitute an unreasonable burden. " 11-ORD-084, p. 6 (claim that request was improperly framed and thus unreasonably burdensome, involving an "estimated 6,000 file folders contained in 20 file cabinets and 100 storage boxes," was not proven with clear and convincing evidence given that some of the perceived burden would not have existed if the agency had properly maintained all records in accordance with applicable records retention schedules and it also failed to identify the specific difficulties associated with redaction, etc.), quoting
Department of Corrections v. Chestnut, 250 S.W.3d 655, 665-666 (Ky. 2008). "Repeated requests to inspect the records of a public agency alone do not . . . amount to harassment. . . . We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances." OAG 77-151, p. 3.
In 12-ORD-097, this office was asked to determine whether the Campbell County Public Library had subverted the intent of the Open Records Act, short of denial and within the meaning of KRS 61.880(4), in failing to afford the requester timely access to 22,117 emails responsive to his request for "emails, ongoing and preserved, dating from January 1, 2011, to the present [March 2, 2012]." The Library agreed to provide the requester with copies of all nonexempt e-mails within six months after the requester declined to further narrow the scope of his request. 2 Noting that the equities did not weigh in either party's favor, this office affirmed the agency's ultimate disposition of the request, given the number of records implicated and the necessity of reviewing each to ensure that statutorily protected information was not disclosed. In concluding that the projected six month deadline for disclosure, "if strictly adhered to, does not subvert the intent of the Act," this office reasoned:
Having amended his original request by reducing its scope to [Library Director] 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.
Id. , p. 2. On appeal the Library had expressly invoked KRS 61.872(5), advising that "many of these messages likely 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[.]" Id., pp. 2-3. Mr. Stone's request, as originally framed, sought records of Ms. King's account only and for a period of six months rather than over a year. Even these general references to statutory exemptions are lacking from the responses of LMPD denying access to significantly less than half as many e-mails. LMPD also initially failed to cite KRS 61.872(5), upon which it relied implicitly on January 7 in requesting until January 24 to "ascertain the feasibility" of identifying and producing the requested e-mails rather than specifying "the earliest date on which" all existing nonexempt records would be made available or specifying which of the permissible reasons for delay, "in active use, in storage or not otherwise available," necessitated the initial delay of three weeks. In responding to Mr. Stone's appeal, the agency invoked KRS 61.872(6).
In applying KRS 61.872(5) on the facts presented in 12-ORD-097, this office contrasted 01-ORD-140 (agency subverted the intent of the Act by postponing access to three specific documents, and invoices for legal services that were submitted by a named law firm during a three month period, while the records custodian was absent for thirteen days), a decision often cited relative to application of that provision, with OAG 92-117 as follows:
In the latter open records decision, we found that the record on appeal supported an agency delay of twenty-one days in honoring an open records request. There the agency, Department for Social Services, demonstrated that it served one-hundred and twenty-three local offices in one hundred and twenty counties across the state each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources 3 upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5.
12-ORD-097, pp. 4-5. The Attorney General then calculated the actual hours required to fulfill the subject request in 12-ORD-097 as follows:
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.
Id., p. 5. Based upon the foregoing, this office concluded that the Library did not subvert the intent of the Open Records Act, short of denial of inspection, by postponing access to all nonexempt e-mails responsive to the request for a period of six months, which represented "the outermost limit of acceptable delay[.]" Id., pp. 5-6; compare 13-ORD-004.
Later that same year, this office followed the reasoning of 12-ORD-097 in holding that the Boone County Clerk did not subvert the intent of the Act, short of denial, in postponing access to 249,504 e-mails responsive to a request seeking "[a]ll emails or electronic messages by or to" ten individuals and containing "any of the [sixty-nine specified] terms" from January 1, 2011, to December 31, 2011. 12-ORD-228, p. 1. Noting that the request implicated "more than ten times the number of emails" requested in 12-ORD-097, and the Clerk would thus have to "expend ten times the man hours to fulfill the request in the proposed six month time frame, " this office affirmed the reasonableness of the projected six-month delay in providing access, recognizing that the "law does not demand more of him." 12-ORD-228, p. 4.
In both instances, the Attorney General emphasized the importance of proper records management practices, including proper destruction of records, observing at pp. 6-7 of 12-ORD-097 that:
We would be remiss in failing to note that KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. " Kentucky's highest court implemented this legislative finding in Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008), declaring that an agency "should not be able to rely on any inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Mr. Coleman's request was broadly worded, though not "improper," and he rejected Mr. Morgan's request that he further narrow it by subject, recipient, or date range. . . . To his credit, Mr. Morgan did not characterize the request as unreasonably burdensome but instead agreed to honor it. Nevertheless, he was unable to fulfill the request within the statutorily mandated three day response time owing to the vast number of records he maintained in his email account. Had library staff engaged in proper records management, consistent with guidance and training available through the Kentucky Department for Libraries and Archives, 4 the volume of responsive records, and corresponding burden to produce them for inspection under the Open Records Act, would have been significantly decreased. We urge the staff of the Campbell County Public Library to review KDLA's website and implement "best practices that are designed to assist agencies in the management of their email records." Guidelines for Managing Email in Kentucky Government , http://kdla.ky.gov/records/Documents/EmailGuidelines.PDF.
Id., pp. 6-7. This office nevertheless "declined to interpret the law in such a way as to make unreasonable demands on public officials," 12-ORD-228, p. 5, observing:
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.
12-ORD-097, p. 6; 12-ORD-228, pp. 4-5.
When viewed in light of these precedents, Mr. Stone's request, while unquestionably implicating a vast number of e-mails, cannot be properly characterized as impermissibly broad or "vague. " He simply asked for all of the e-mails from a named employee's account for a specified time period of six months, a request that "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Chestnut , above, at 661. However, given his unwillingness to narrow the scope of the request, as well as the estimated number of responsive e-mails, and the necessity of reviewing each in order to determine whether any redactions are necessary, as in prior decisions the Attorney General finds that a reasonable delay in producing the requested e-mails would certainly be justified. This office deemed a delay of six months in which to review 22,117 e-mails from a single account reasonable, but found that period of time represented "the outermost limit of acceptable delay." 12-ORD-097. Based upon the reasoning of that decision, this office subsequently found that a delay of six months in which to review a total of 249,504 e-mails from the accounts of ten different individuals was more than justified. Proportionately then, it seems reasonable, based on the limited information provided, for LMPD to review less than half as many e-mails than were being sought in 12-ORD-097 from a single account in three months or less.
LMPD has not demonstrated, with clear and convincing evidence, that complying with Mr. Stone's request within a reasonable time frame would be unreasonably burdensome. Prior to Commonwealth v. Chestnut , above, this office rarely concluded that the burden imposed on a public agency in complying with a request was sufficiently unreasonable to justify invocation of KRS 61.872(6). 11-ORD-144, p. 5. The Court validated the longstanding position of this office in Chestnut , recognizing that a public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6) since the agency must show the existence of the unreasonable burden by clear and convincing evidence, " Chestnut at 664, and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." Id. at 665. The "obvious fact that complying with an open records request will consume both time and manpower," the Court observed, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id. Nor does the "winnowing process" required of the agency "to separate excepted materials and make nonexcepted materials available" per KRS 61.878(4) "rise to the level of an unreasonable burden under KRS 61.872(6) because that is an existing statutory obligation. Id. at 664. Given the high evidentiary threshold of KRS 61.872(6), as construed in Chestnut , above, this office concludes that LMPD cannot deny or indefinitely postpone access under the Open Records Act by claiming that Mr. Stone's request was improperly framed and is unreasonably burdensome, particularly given that some of the perceived burden would not exist if LMPD was properly maintaining all records in accordance with applicable records retention requirements. 5 "Neither the voluminous nature of the request nor 'any inefficiency in its own internal record keeping system' is 'clear and convincing evidence' that would justify invocation of KRS 61.872(6)." 11-ORD-084, p. 12 (copy enclosed). 6
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.
# 44
Distributed to:
Tom StoneSharon L. KingSarah Stewart AshburnerWilliam P. O'Brien
Footnotes
Footnotes
1 Mr. Stone also inquired as to whether the Act provides "an exception to the three day time limit if the public agency implements a procedure that renders" compliance impossible and whether LMPD is required to accommodate him "as requested under ADA, ORA or anything else when I requested response by e-mail to allow me to manipulate the size and color of the words for my benefit, to assist with my mobility problem."
LMPD advised that Ms. King's January 3, 2014, letter was "processed by the mail department" on Monday, January 7, 2014, in compliance with KRS 61.880(1), "as the office was closed for a legal holiday on December 31, 2013, and January 1, 2014, and then for the weekend" on Saturday, January 4, and Sunday, January 5, 2014. Given that January 7 was a Tuesday, and LMPD maintains that its response was mailed within three business days per KRS 61.880(1), this office assumes that LMPD intended to state that Ms. King's letter was mailed on Monday, January 6, 2014, in which case its response was timely and nothing else was required. Although Mr. Stone provided a copy of the envelope in which said response was mailed, which is postmarked January 7, at worst a delay of a single day occurred, which violated KRS 61.880(1), though it's entirely possible that Ms. King's letter was placed in the mail after the mail had run for the day on January 6. This office is unable to conclusively resolve a factual dispute concerning actual delivery and receipt of a response or a request; likewise, this office makes no finding as to whether LMPD was required to accommodate Mr. Stone within the meaning of the ADA given that no such language appeared in his December 30, 2013, request nor does the record contain any evidence regarding this question. Pursuant to KRS 61.872(1), of course, LMPD is required to provide "suitable facilities" for inspection of public records. See 02-ORD-094; 03-ORD-183.
2 The requester had originally asked for all e-mails of all employees of the Library for the same time period, totaling in excess of 340,000 e-mails.
3 Now the Cabinet for Health and Family Services.
4 http://kdla.ky.gov/records/recmgmtguidance/Pages/elecrecmgmt.aspx
5 Nonbusiness Related Correspondence, for example, identified at Series L6245, "consists of messages of a purely personal nature, spam, and other unsolicited correspondence," and can be deleted immediately. Official Correspondence, identified at Records Series L6243 of the Louisville/Jefferson County Metro Government Retention Schedule , must be retained permanently; however, such records are "usually created by the chief administrative officer of the local government" and document "major activities, functions, events and programs of Metro Government." Few, if any of the subject e-mails are likely to fall in this category. Routine Correspondence, identified at Series L6244, must be retained for two years and "can be found at all levels of an organization and documents business related correspondence that is not crucial to the preservation of the administrative history." In the absence of any specific evidence regarding the content or nature of any of the subject e-mails, LMPD has not satisfied its burden per KRS 61.880(2)(c) and 61.872(6) of establishing that Ms. King was required to maintain all of the 8,600 e-mails in dispute and the request is therefore unreasonably burdensome.
6 The record on appeal does not contain sufficient evidence to substantiate the agency's position that Mr. Stone's "persistent requests" are "intended to disrupt other essential functions of the agency in question" or merely "intended to harass or annoy the unfortunate target of his resentment."