Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in the disposition of R. G. Dunlop's January 28, 2015, request for copies of investigations related to the Grant County Detention Center. For the reasons that follow, we find the KSP's disposition partially in violation of the Act.
In his request, addressed to KSP records custodian Emily M. Perkins, Mr. Dunlop stated as follows:
Under the Kentucky Open Records act, I hereby request complete copies of each and every Kentucky State Police investigation of, related to or pertaining to, the Grant County Detention Center, or any of its employees, from January 1, 2000, to the present.
This request is intended to include, but not be limited to, a KSP investigation of the Grant County Detention Center initiated in 2012.
On February 2, 2015, Ms. Perkins replied in pertinent part:
Your request is denied pursuant to KRS 61.872(3)(b), which states that the requestor must precisely describe the records sought.
The requester must describe the materials sought with enough specificity to allow the agency to identify and locate the records. Further, in the Attorney General's opinion 99-ORD-14 it states: [A] request for any and all records which contain a name, a term, or a phrase is not [a] properly framed open records request, and generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. See also 13-ORD-077.
Mr. Dunlop wrote a reply to Ms. Perkins that same date, pointing out that she had not addressed his specific request for "a KSP investigation of the Grant County Detention Center initiated in 2012." He stated:
Given available information, I don't see how this particular part of my inquiry to you could be more specific. I don't know details of this investigation, including the issues and/or people involved, because they haven't been publicly disclosed by the KSP, to my knowledge.
Ms. Perkins responded, also on the same day, that "there is simply not enough information provided for the KSP to identify and locate any responsive records."
Mr. Dunlop appealed to this office on February 2, 2015, arguing that he did not have enough knowledge to be more specific in his request. He further stated:
If it would be simpler for KSP to confine its search for the records I've requested to a narrower time frame, for example, since 2005, or even 2010, that might be the beginning point for negotiating a reasonable resolution of this matter. But KSP did not request that I do so. Since KSP's denial did not cite the 15-year period as unduly burdensome, I would prefer to receive any and all records of GCDC investigation by KSP since 2000.
And in particular, it seems reasonable that KSP produce the complete record of its 2012 investigation, since I think it is logical to assume that its existence is known inside as well as outside the agency.
On February 10, 2015, Ms. Perkins replied:
The requested materials spans [ sic] a period of approximately fifteen years and apparently assumes that the KSP has knowledge regarding the identities of any and all employees of the Jail within the past 15 years. Appellant's request does not provide any names of any involved persons, nor does it state what type of investigations he is seeking to obtain, such as investigations regarding inmate assaults, sexual abuse investigations, promoting contraband investigations, fiduciary investigations, or investigations of its employees which may or may not relate to their employment at the facility.
The KSP does not indicate that it made any preliminary effort to locate responsive records.
With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Accordingly, we have often held that "blanket requests for information on a particular subject need not be honored. " OAG 90-83; see also 95-ORD-108 and opinions cited therein. Thus, we held that a request to the City of Louisville for "all items pertaining to UPS and the airport expansion" was properly denied for lack of specificity. OAG 91-58 (emphasis omitted). Similarly, a request for "[a]ll memoranda, correspondence and/or documentation of whatever kind and nature regarding [a certain employee] not included in her personnel file" was insufficiently specific. OAG 90-83. 1
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, as the agency's response pointed out, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
In 00-ORD-79, we found that a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ? from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description:
Mr. Mabry provided information that the number of properties that received easements was small and limited the timeframe of his records request. However, he did not identify the records that he wanted copied in definite, specific, and unequivocal terms. Unless he can describe the records he seeks with precision, the City is not obligated to search through its records for "any and all" records that may relate to his request.
Here, the first portion of Mr. Dunlop's request was for "each and every Kentucky State Police investigation of, related to or pertaining to, the Grant County Detention Center, or any of its employees, from January 1, 2000, to the present." Although it specifies investigations, as opposed to "any and all records," in practical terms this is no more precise a description than was given in 00-ORD-79.
There is no reason to believe the KSP knows the names of all present and former employees of GCDC dating back fifteen years. Nor is it apparent that the KSP's records are indexed in such a way that a meaningful search could be conducted for investigations that relate to GCDC or its employees. Moreover, it is unclear what degree of "relatedness" to GCDC or its employees would bring an investigation within the scope of the request, or whether investigations of individuals unrelated to their employment at GCDC were meant to be included. The description "places an unreasonable burden on the agency to produce ? incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14. Thus, we find that the first, more general portion of Mr. Dunlop's request did not precisely describe the records requested as required by KRS 61.872(3)(b).
Nevertheless, the second portion of Mr. Dunlop's request was more specific, asking for "a KSP investigation of the Grant County Detention Center initiated in 2012." A description of this type might or might not be precise enough to enable an agency to identify responsive records, depending on the factual circumstances. In this case, it is public knowledge that the KSP has been conducting some sort of investigation of GCDC since 2012.
On September 19, 2012, WCPO News in Cincinnati reported that GCDC deputy William McCarthy had accused jailer Terry Peeples of a Kentucky Whistleblower Act violation, and that "[t]he Kentucky State Police would only confirm that they do have an investigation directed at the Grant County Detention Center." 2 Furthermore, on July 30, 2014, the Cincinnati Enquirer reported that a lawsuit had accused the jailer of "sexual harassment and sexual assault," and that "Kentucky State Police said they have an open case investigating the Grant County Detention Center dating back to 2012. A KSP spokesman couldn't reveal the nature of the investigation or any other information citing it as an open case." 3
If the KSP was able to confirm the existence of a specific investigation of GCDC to a reporter in 2012 and 2014, the Dry Ridge post could reasonably be expected to possess sufficient knowledge to identify that investigation in 2015. Yet the record gives no indication that the post was even consulted on this matter. It is "incumbent on an agency 'to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested.'" 95-ORD-96 (quoting
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978)).
In 13-ORD-077, cited by the agency, the KSP had received a request for all records reflecting assistance given to the agency by a named individual. Although the KSP believed the description of records to be imprecise, they made a preliminary good-faith attempt to search for the name of the individual, but were not even able to verify that they had the right person. In this case, it does not appear that KSP made any preliminary good-faith attempt to find responsive records, as it did in 13-ORD-077. Under the circumstances, the second portion of the request was not so imprecise as to justify denying the request on its face. Contacting the relevant KSP post to assess its knowledge of a recent investigation of GCDC would have satisfied the requirement of a good-faith effort.
Accordingly, we find that the KSP did not err in denying the first portion of Mr. Dunlop's request due to an insufficiently precise description of the records. As to the second portion, a good-faith effort to conduct a search should have been made, and the denial of this portion on its face was improper.
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 proceedings.
Footnotes
Footnotes
1 To whatever extent our prior decisions may have applied a "reasonable particularity" standard to requests for on-site inspection of records, they have been implicitly overruled by Com. v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Our analysis here is concerned with requests for copies by mail under KRS 61.872(3)(b).
2 Jay Warren, "Deputy alleges sex and contraband at the Grant County Jail," September 19, 2012, http://www.wcpo.com/news/region-northern-kentucky/deputy-alleges-sex-an…, retrieved 3-31-15.
3 Scott Wartman, "Suit: Jailer sexually assaulted employee," July 30, 2014, http://www.cincinnati.com/story/news/2014/07/30/suit-jailer-sexually-as…, retrieved 3-31-15.