Opinion
Opinion By: Jack ConwayAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
Todd Bonds initiated this appeal challenging the denial by the Walton-Verona Independent Board of Education ("Board") of his November 29, 2014 request for copies of all e-mails that were "sent/received/forwarded by any "@wv.kyschools. us" address; or the commonly used email domain for WVBOE employees that mention/reference in the body or subject of the email/ communication, the name of former employee "Todd Bonds"/"Andrew Bonds" "Mr. Bonds" or "Todd Andrew Bonds" - meaning the requestor - between the dates of 4/1/2012 - 12/31/2012. Mr. Bonds emphasized that he was not seeking the records for a commercial purpose but was amenable to receiving the records electronically. Legal counsel for the Board, Donald J. Ruberg, denied Mr. Bonds' "16th request submitted to it within the last 12 months."
Mr. Ruberg asserted the following in support of his client's denial on the basis of KRS 61.872(6):
Your 16th request seeks almost 2000 emails, some consisting of multiple pages, on top of the approximately 17,000 pages of records you have previously requested. This request individually, and in conjunction with your prior requests, places an unreasonable burden on the WVBE [Walton-Verona Independent Board of Education] in producing the same. Preparing redacted copies of these records would involve days upon end of work by multiple individuals to redact the same, a fact which you are well aware of. This unreasonable burden is aggravated by the fact [that] you have previously requested records, demanded that redacted copies be prepared and then failed to pay for same. . . .
Your repeated requests are intended to disrupt the essential functions of the WVBE as evidenced by your recent monetary demand submitted to the WVBE to obtain the cessation of same as well as your failure to pay for records previously requested after repeatedly assuring my client and I that payment for same would be forthcoming and redacted copies should be prepared.
In addition, the Board argued that some of the requested emails contained information that was protected from disclosure under KRS 61.878(1)(a), (i), and (j). The Board also invoked KRS 61.878(1)(k), incorporating the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and 61.878(1)(1), incorporating the Kentucky Family Education Rights and Privacy Act (KyFERPA), KRS 160.700, et. seq. as well as the attorney-client privilege, codified at Kentucky Rules of Evidence (KRE) 503. This appeal followed.
Mr. Bonds noted on appeal that he asked for public records which specifically reference him and which are "similar to the records requested" in 14-ORD-078. 1 However, the records in dispute "are more specific in range and request." He further argued that none of the reasons provided in support of the agency's denial apply. Mr. Bonds also noted that he sent a $ 50.00 money order to pay the Board for any records that were already provided to him and further disputed that he is attempting to disrupt essential agency functions "when the records requested specifically mention the requestor." 2
Upon receiving notification of Mr. Bonds' appeal from this office, Mr. Ruberg elaborated upon the Board's position as follows:
The Board's Director of Technology conducted a search of the electronic mail server hosted by the Microsoft (R) Corporation's [servers] in San Antonio, Texas. [Internal footnote omitted.] The search generated results identifying approximately 2,000 emails consisting of approximately 3,000 pages. In order to convert the search results into actual production of records, the Board would first need to export the responsive emails into ninety-one separate .pst files. The Board does not have technology that would allow its employees to redact confidential information in the .pst files prior to production. Consequently, the Board would need to print paper copies of the .pst files so that confidential information can be manually redacted. The Board would then need to have various employees review each printed email to ascertain whether it qualifies as an education record so as to fully exempt the record from disclosure under the Open Records Act by [FERPA and/or KyFERPA], under KRS 61.878(1)(k) and/or (1)[.]
This process would be extremely time consuming, Mr. Ruberg continued, "because each email and its contents would have to be reviewed by more than one of the Board's employees, including the Board's counsel, to prevent disclosure" of information protected under FERPA, KyFERPA, and/or protected under the cited exceptions. Mr. Ruberg estimated the amount of time necessary to conduct such a review of the records would be more than one week.
Under both FERPA and KyFERPA, he continued, the Board is prohibited from disclosing student education records. Quoting 20 U.S.C. § 1232g(b)(1), as KRS 160.705(1), incorporated into the Open Records Act by KRS 61.878(1)(k) and (1), respectively, the Board submitted that, based upon the mandatory provisions of FERPA and KyFERPA, and the large volume of records involved, Mr. Bonds' request "is subject to the same analysis set forth by the Attorney General in 11-ORD-173" (involving 8500 e-mails) and 14-ORD-109 (involving 6200 e-mails and relying on 11-ORD-173). As Mr. Ruberg correctly observed, in both instances the Attorney General "found that requiring a school district to review large quantities of emails by multiple employees to ascertain whether any of the information is protected by FERPA or [KyFERPA] is substantially burdensome under KRS 61.872(6)." Acknowledging that 2000 e-mails are implicated here as compared to 8500, the Board noted that Mr. Bonds' request is also not limited to specific agency personnel as the request in 11-ORD-173 was. Rather, as in 14-ORD-109, the requested e-mails involve multiple employees and the amount of time and effort necessary for the individual employees, their supervisors, and legal counsel to perform the mandatory FERPA review would thus be multiplied accordingly. In addition, the personal knowledge required to conduct such a review, as in 11-ORD-173 and 14-ORD-109, precludes delegation of that function to different personnel. For these reasons, the Board maintained that the reasoning of 11-ORD-173 extends to the facts presented.
The Board also reiterated that Mr. Bonds previously made requests, demanded that redacted copies be prepared and then failed to pay for same. Mr. Bonds' assertion that he sent a money order to pay the Board for the redacted copies prepared in response to a previous request is misleading, the agency observed, as counsel for the Board did not receive it until January 5, 2015, as the record confirms. Accordingly, without assurances that it will be reimbursed in a timely manner, "the Board is not inclined to print the responsive records and then undertake the time consuming process of reviewing the thousands [of] records to prevent inadvertent disclosure of information protected by FERPA."
In addition to having presented clear and convincing evidence that complying with Mr. Bonds' multiple requests would be unreasonably burdensome, the Board maintained that such evidence of his intent to disrupt other essential functions of the Board, as required to justify its denial on the basis of KRS 61.872(6), also exists. Mr. Ruberg advised that, "The Board's essential function is to operate a public school district for the sole purpose of educating its students. The Board cannot function without its administrators and teachers performing their respective duties and responsibilities." Mr. Bonds "is aware of the fact that the Board will have to devote significant amounts of time and manpower to reviewing records every time he makes an open records request." The burden imposed by Mr. Bonds' latest request "will be compounded if Mr. Bonds decides to pay for the 16,340 emails involved in 14-ORD-078." His recent monetary demand 3 further demonstrates the intent of Mr. Bonds to disrupt other essential functions of the Board, Mr. Ruberg contended, and shows that he understands how disruptive his multiple requests are but is "attempting to convert that knowledge into a $ 500,000 payday." As further evidence of Mr. Bonds' intent, Mr. Ruberg noted that many of the subject emails are included among the e-mails deemed responsive to his previous written requests. On May 16, 2014, the Board sent redacted copies of 284 e-mails responsive to his April 17, 2014 request, many of which are duplicates of those currently in dispute as Mr. Bonds conceded in his letter of appeal. To the extent certain responsive e-mails have already been provided to Mr. Bonds, and his request was therefore duplicative, the Board argued that its denial was proper.
As in 14-ORD-109, this office "does not retreat from the general rule that no unreasonable burden is posed merely by the 'tedious and time-consuming work' resulting from the fact that a public agency is statutorily 'obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised.'" Id., quoting
Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008). Nevertheless, the Board has arguably demonstrated with clear and convincing evidence that complying with Mr. Bonds' current request would be unreasonably burdensome under the analysis contained in 11-ORD-173, and followed in 14-ORD-109, given the number of responsive e-mails and the need to identify and redact all information protected under FERPA though far fewer e-mails are being sought. Assuming the Board's evidence on this question does not satisfy the high standard of KRS 61.872(6), nor did the number of requests alone, 4 when viewed collectively, that evidence along with evidence of his pattern of requests, coupled with objective proof that his intent is not merely to access records that relate to him, but to disrupt other essential functions of the Board, including the partially duplicative nature of his requests, the unrefuted failure to pay for copies until months after the records were prepared, and the "monetary demand" of record, is "clear and convincing" as required to justify its denial.
Resolution of this appeal turns on KRS 61.872(6), pursuant to which, "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." In construing this provision, the Attorney General has consistently noted that KRS 61.872(6) "'is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency.'" 00-ORD-72, p. 2 (citation omitted). To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Act, however, a refusal made on the basis of KRS 61.872(6) must be sustained by clear and convincing evidence, prompting this office to observe that every request "causes some inconvenience to the staff of the public agency. . . . [Nevertheless, we] believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection." Id., p. 3 (citation omitted). However, this office has also recognized that public employees "are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." Id., p. 3, citing OAG 76-375, p. 4. In determining whether a request is unreasonably burdensome, this office "must weigh two competing interests: that of the public in securing access to agency records, and that of the agency in effectively executing its public function." Id., citing 96-ORD-155, pp. 3-4; 11-ORD-173.
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. Further, 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. " 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; 11-ORD-173.
Having summarized this line of authority, in 11-ORD-173 this office reaffirmed the reasoning found in 11-ORD-144 (distinguishing Chestnut and finding that potential for inadvertent disclosure of protected information was multiplied given the magnitude of the request) notwithstanding the different number and type of records implicated. "Regardless of how many e-mails actually contain such information," this office reasoned, "the fact remains that a review of all existing responsive e-mails would be required in order to conclusively determine how much redaction was required under applicable federal/state law." 11-ORD-173, p. 10 (original emphasis). Accordingly, the agency had offered "'clear and convincing evidence that the time and manpower required to fulfill [the] request is not a function of inefficiencies in its record keeping system, but is, instead, a function of the expansive scope of his request [and the need to identify and redact all FERPA information].'" 11-ORD-173, p. 10, quoting 11-ORD-144, p. 7; compare 11-ORD-084.
In light of this precedent, in 14-ORD-109 the Attorney General affirmed the denial by the Spencer County Board of Education of a request by Mr. Bonds for "all emails sent from any address that ends with '@spencer.kyschools. us' sent/received/forward to/from any address that ends '@wv.kyschools. us' from July 1, 2012 until January 31, 2014[.]" This office found, consistent with 11-ORD-173, that it did "appear substantially burdensome that at least 6,200 e-mails between two school systems must be reviewed by multiple employees to ascertain and address any content protected by FERPA or its state counterpart." 14-ORD-109, p. 7. Although 6,200 e-mails were in dispute, rather than 8,500, this office noted that Mr. Bonds' request was also not limited to communications between superintendents. Id. Because communications of "lower-level employees would foreseeably require FERPA review not only by those employees, but by supervisors as well as legal counsel, which could reasonably multiply the time and effort even beyond that required in 11-ORD-173[,]" and "the personal knowledge needed for a FERPA review would similarly tend to preclude delegating that function to other personnel [,]" as in that case, this office found "the similarity between the two cases is such that the reasoning in 11-ORD-173 . . . extends to the facts of this appeal." 14-ORD-109, pp. 7-8.
Here, as the Board has acknowledged, 2000 e-mails are implicated rather than 8,500 or 6,200 - a significant difference. Mr. Bonds narrowed the relevant period of time in framing the request in dispute though eight months were still encompassed in his request. Mr. Bonds asked for all e-mails that were sent, received, or forwarded using any "@wv.kyschools. us" e-mail address that referenced or mentioned four variations of his name, in either the subject caption or the body of the e-mail. As the Board correctly observed, his November 29, 2014 request was not limited to specific personnel and thus would require multiple employees and their supervisors, in addition to its legal counsel, to conduct a careful review in order to prevent inadvertent disclosure of information protected under FERPA, a task which, as in the prior decisions, could not be delegated. Far fewer responsive e-mails were located in this case, however, and the amount of time necessary for the mandatory review is correspondingly reduced. The question presented here is a closer one. Although complying with Mr. Bonds' current "application" would perhaps not be unreasonably burdensome standing alone, under existing authority these considerations, when viewed in context with the pattern of requests made by Mr. Bonds over the past year, and the volume of records implicated, weigh in favor of the Board's argument. Further support is found in his documented failure to pay for copies in a timely manner, notwithstanding payment belatedly sent contemporaneously with the instant appeal, in addition to his unrefuted history of agreeing to make timely payments but failing to comply with KRS 61.874.
"Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, 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)." 96-ORD-193, p. 5. The public agency must build the case. Id.; 02-ORD-230 (question was a close one but agency established that applicant intended to disrupt the agency's essential functions based on his "broadly worded request, coupled with his past pattern of conduct"). Mr. Bonds acknowledged on appeal that his November 29 request implicated some of the records that were previously at issue. This office has consistently recognized that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting that request." 00-ORD-72, p. 6 (citations omitted); 06-ORD-159 (agency provided sufficient proof to support its claim that applicant's duplicative request was unreasonably burdensome and disruptive of its essential functions within the meaning of KRS 61.872(6)). KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. "Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions." 95-ORD-47, p. 4; 05-ORD-198. This factor, while not dispositive on the facts presented, further substantiates the Board's invocation of KRS 61.872(6).
Further evidence of Mr. Bonds' intent can be found in the November 18, 2014 e-mail thread containing his proposal to settle ongoing litigation. See note 3, above. His documented willingness to forego submitting any requests under the Open Records Act in exchange for a financial settlement is not otherwise relevant, but certainly undermines Mr. Bonds' position as to his motivation for the pattern of requests and the subject request, made eleven (11) days after his offer was declined, in particular. While no single factor is dispositive on the unique facts presented, when viewed collectively the number and partially duplicative nature of the requests, the volume of records implicated and the necessity of redacting information protected under federal and state law, his previous failure to promptly render payment for copies provided in response to a request(s), and his willingness to discontinue making requests in exchange for a large sum of money, validate the Board's position that Mr. Bonds' "repeated requests are intended to disrupt other essential functions of the agency." Accordingly, this office continues "to firmly adhere to the principles articulated in Chestnut ," but affirms the denial of Mr. Bonds' request on the basis of KRS 61.872(6) based upon the clear and convincing evidence of an unreasonable burden presented. 11-ORD-144, p. 7; 11-ORD-173. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 This decision is currently on appeal to circuit court.
2 Although Mr. Bonds also challenged the agency's reliance upon KRS 61.878(1)(h) in advising that he is "not an employee of theirs and am not under any investigation," the District did not cite KRS 61.878(1)(h) in support of its denial. In asserting that he is entitled to access otherwise protected records that relate to him, due to being a former public agency employee, Mr. Bonds implicitly relied upon KRS 61.878(3). When applicable, this provision overrides the other exceptions codified at KRS 61.878(1) unless the person is currently under investigation, except for KRS 61.878(1)(k) or (1). See 07-ORD-236; 12-ORD-170.
3 In the November 18, 2014 e-mail thread containing the monetary demand, Mr. Ruberg advised Mr. Bonds that his client "will consider a reasonable alternative to end the litigation and numerous Open Records requests from you. Please present the same in writing." Mr. Bonds made two separate offers identified as "Option A" and "Option B," the former of which, in relevant part, included his agreement not to make any "open records/open meeting requests for 1 calendar year from the date of the agreement," and the Board's agreement to pay him "$ 500,000 U.S.D. of which 50,000 will be split between NKU and the University of Cincinnati in a scholarship for minority, male undergraduate teachers." Among other terms, Option B included the right of Mr. Bonds to continue making open records requests and open meetings complaints and required the Board to pay him "$ 1,000,000 U.S.D.; of which $ 250,000 will be donated in scholarships for minority, male pre service teachers at NKU and [UC]." Mr. Bonds advised that if the Board was unwilling to reach a settlement, "then we can continue on the path you have chosen which I am certain I will prevail, and we start the process of litigation all over again. . . . I am entitled to records that pertain to me. I will have them, one way or the other."
4 Mr. Ruberg advised that Mr. Bonds made sixteen (16) requests between December 27, 2013, and November 29, 2014.