16-ORD-242
November 16, 2016
In re: Bryce C. Rhoades/Kentucky Housing Corporation
Summary: Kentucky Housing Corporation did not violate the Open Records Act in denying request for copies of records that were not precisely described under KRS 61.872(3)(b); the records are not readily available within KHC as no mechanism exists by which KHC is able to identify and locate all responsive documents based on the criteria provided. A public agency is not required to perform research in order to comply with a request.
Open Records Decision
Bryce C. Rhoades initiated this appeal by letter dated October 12, 2016, challenging the partial denial by the Kentucky Housing Corporation (“KHC”) of his colleague, Scott Guenther’s September 23, 2016, request for copies of sixty-five (65) categories of documents, all but two of which sought “any and all” documents relating to various projects or developments, but only three of which currently remain in dispute. Mr. Guenther described Items 1-3 of the request as follows:
1. Any and all documents related to developments or projects in which there were changes in the scope or funding of the project after the submission of the original application to [KHC] yet there was nonetheless an award of Low Income Housing Tax Credits [“Credits”] by [KHC]. This request includes, but is not limited to, all Multifamily Project Modification/Waiver Request forms;
2. Any and all documents relating to projects in which [KHC] denied or withdrew [Credits] because of a change in the scope of the project;
3. Any and all documents relating to projects in which [KHC] denied or withdrew [Credits] because of a change in the source of funding for the project[.]
Despite the voluminous nature of Mr. Guenther’s request, KHC agreed to provide copies of all existing responsive documents, with limited redactions, except for the items described above. In denying the request as to Items 1-3, KHC advised:
Notably, these requests are not limited by year or time period. KHC’s record retention policy for the Multifamily Department is as long as a thirty-year period. Nor do these requests specify the name of the project. As a result, these requests are vague, imprecise and excessively broad. For KHC to attempt to produce such records would constitute an unreasonable burden upon KHC, and is not required by [the Open Records Act]. See KRS 61.872(6) and OAG 86-65.
But more importantly, KHC will not be producing documents for Items 1-3 as these documents are not available absent a compilation effort (at substantial staff time and effort) by KHC. The [Open Records Act] does not require that an agency engage in such compilation efforts: “Public agencies . . . are neither required nor directed by open records provisions to devote [taxpayers’] time to reviewing voluminous records in order to compile information to satisfy a particular information request. The legislature has recognized this by providing only that records must be made available for inspection, not that information must be extracted and compiled.” OAG 88-79, citing OAG 81-33. An agency has no such duty to produce such documents, even if “information documenting, in bits and pieces, facts [the requester] is trying to determine, will appear among the many records that are generated through . . . the records.” Id. Kentucky agencies are not required by the Open Records Act to compile lists and create a record which does not exist. OAG 90-100.
Following exchanges between KHC and Mr. Guenther, by e-mail dated October 4, 2016, Mr. Guenther agreed to limit Items 1-3 to the past 15 years. Mr. Guenther asserted that he was not asking KHC to compile information or create documents; rather, he was asking for “specific documents that meet defined criteria.” KHC Deputy General Counsel Karen Quinn subsequently advised that “starting in 2014, our multifamily department implemented the use of a project modification/waiver request form. Therefore, this request would provide a way of codifying and compiling the documents regarding 1-3, and we can provide you with those.” KHC maintained its original position regarding the remaining 12.5 years’ worth of documents; Ms. Quinn explained that providing Mr. Guenther with an opportunity to conduct on-site inspection (per KRS 61.872(3)(a)) “is also not an option, since they contain confidential and proprietary information which staff would have to redact before permitting you access. Such a task for staff, given the thousands of pages of documents at issue over that 12.5 year period, is simply too burdensome.”1 Mr. Guenther argued that his request was not unreasonably burdensome “as defined by KRS 61.872[(6)] and interpreting case law[,]” specifically Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). This office respectfully disagrees and finds that KRS 61.872(3) is dispositive in this case.
On appeal Mr. Rhoades observed that KHC failed to provide any explanation of why Mr. Guenther’s failure to specify the names of the projects rendered his request unreasonably burdensome; he further noted that KHC has failed to specify the particular difficulties associated with identifying and locating the documents requested. Mr. Rhoades also contended that Mr. Guenther’s request was “not for information, but for reasonably identified records. . . . This firm has not asked KHC to analyze or compile data – only that it make reasonably identified records available for inspection.” This assertion would be accurate if KHC maintained responsive documents based on the criteria provided in the normal course of business. KHC did not, however, index or track records based on the criteria provided until 2014. Accordingly, the assertion that KHC would have to conduct exhaustive research in order to comply with Mr. Guenther’s request for “any and all” responsive documents for a 12.5 year period relating to projects that are not identified with a project name, or any criteria beyond that of those in which Credits were granted, withdrawn, or denied following a change in either the scope or source of the funding, is entirely credible. See 02-ORD-196 (agency did not maintain the decisions based on provided criteria and was not required to review files of 300 facilities for a 22-year period to determine whether the documents existed);2 14-ORD-173 (agency could not perform a search of records by owner of the facility nor did it have to “review the records of every licensed or certified healthcare facility in Kentucky, merely to determine a threshold question of ownership”).
Attorney Cecil F. Dunn responded to Mr. Rhoades’ appeal on behalf of KHC. Mr. Dunn reiterated that Mr. Guenther’s request failed to provide “the names of any housing project or developer with any degree of particularity.” Prior to 2014, Mr. Dunn continued, “KHC did not consistently document or track such changes [concerning the scope or funding source for both projects where KHC awarded the credits and those for which it denied the credits]. Beginning in 2014 KHC implemented a process to formally document requests for changes to projects through a waiver request process.” Accordingly, KHC does not have the documents requested “in a format that may be readily examined for projects, and in some cases, KHC is unsure whether such information is documented at all. Instead, KHC staff must engage in a cumbersome, time-consuming, and burdensome task of sifting through all projects for the past [12.5] years, a task which is estimated will include a review of tens of thousands of pages of documents and hundreds of hours of staff time.”
Resolution of the issue presented relative to Items 1-3 turns on the application of KRS 61.872(3)(b), pursuant to which a person is entitled to inspect public records “[b]y receiving copies of the public records from the public agency through the mail.” However, “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” only after he “precisely describes the public records which are readily available within the public agency. . . .” (Emphasis added). See 03-ORD-067; 14-ORD-173; 15-ORD-212. Whereas KRS 61.872(2) merely requires a requester to “describ[e]” the records which he wishes to access by on-site inspection,3 KRS 61.872(3)(b) requires the requester to “precisely describe” the records which he wishes to access by receipt of copies by mail; this degree of precision applies whether the request asks for the records in hard copy or electronic format (as Mr. Guenther subsequently requested) as the difficulties associated with identifying and locating all responsive documents in order to ensure full compliance are the same when, as in this case, the records are not searchable based on the criteria provided.
“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.” 13-ORD-077,4 p. 3, quoting 95-ORD-108. A request must be “specific enough so that a public agency can identify and locate the records in question.” 13-ORD-077, p. 3, quoting OAG 89-8. In other words, a requester satisfies the second requirement of KRS 61.872(3)(b) if he/she describes in “definite, specific and unequivocal terms” the records he/she wishes to receive. Id. This Mr. Guenther has not done. See 08-ORD-147; 13-ORD-177. In determining that a request was too imprecise to satisfy KRS 61.872(3)(b) in 13-ORD-077, this office advised:
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, . . . “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.
Id., p. 4. Although Mr. Guenther asked for “documents,” rather than information, and the “any and all” phrasing is not fatal standing alone, the request did not precisely describe those documents, nor does a mechanism exist by which responsive documents from before 2014 can be identified and located; accordingly, the documents cannot be properly characterized as “readily available” within KHC.5 See 96-ORD-69 (records were described with sufficient clarity for agency to identify the records but agency did not maintain the records “in such a fashion that either a list was kept or that they could be readily identified and located”); 16-ORD-138.
Because KHC is located in Frankfort, Kentucky (Franklin County) and Mr. Guenther is located in Covington, Kentucky (Kenton County), Mr. Guenther satisfies the first requirement of KRS 61.872(3)(b). Nevertheless, Mr. Guenther is entitled to receive copies of responsive documents only after he “precisely describes” the documents, which must be “readily available within the agency.” See 15-ORD-212 (request for “any and all” records documenting communications “with” unidentified detectives, “to” eight different public agencies, like “any” judges or law enforcement agencies, was not precise nor was request for “any” records, whether in electronic or hard copy format, “including, but not limited to” records from detectives who are not identified, to the same vaguely worded list of agencies). Items 1-3 of Mr. Guenther’s request were not “definite, specific and unequivocal.” See 08-ORD-047; 12-ORD-049. Accordingly, KHC did not violate the Act in denying the request for copies of documents responsive to Items 1-3.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Andy Beshear
Attorney General
Michelle D. Harrison
Assistant Attorney General
#415
Distributed to:
Bryce C. Rhoades
Lori Davis
Karen Quinn
Cecil F. Dunn
[1] Although its position that responsive documents would contain protected information seems credible, KHC has not, as of yet, sufficiently justified its reliance on any of the statutory exceptions codified at KRS 61.878(1). See KRS 61.880(1); KRS 61.880(2)(c). Because this appeal is resolved on the basis of KRS 61.872(3), additional discussion is unwarranted.
[2] This office further noted that, as in this case, the agency had “adequately explained why the request was overly broad, i.e., the records sought could not be readily retrieved as requested due to the fact that agency records were not maintained under the categories of information sought . . . .” Id., p. 9.
[3] “[N]othing in KRS 61.872(2) contains any sort of particularity requirement.” Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008).
[4] In 13-ORD-077 the requester asked for copies of “[a]ny and all records in the possession of the Kentucky State Police referencing or containing the name of Ernest William Singleton or Will Singleton from 2010 to the present,” including but not limited to, “records indicative of Mr. Singleton’s assistance with [KSP] matters, including tips given to your department.”
[5] Compare 14-ORD-037 (“mere fact that a request uses the phrase ‘any and all’ does not convert the description from precise to imprecise” and the subject request contained “nothing that makes identification or location of the relevant records impracticable”).