Request By:
Mr. Peter Cagnina
Ms. Paula Snowden
Robert King, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Powell's Valley Water District subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in regard to three requests made by SmartProcure, Inc. ("SmartProcure"), for copies of the District's electronic purchasing records. For the reasons that follow, we find that no issues remain over which this office has jurisdiction under KRS 61.880.
On June 7, 2016; November 18, 2017; and March 7, 2017, representatives of SmartProcure submitted written requests for certain electronic purchasing records of the District over the previous four to five months. Although there was some initial delay in the District's providing the records, occasioned by a software compatibility question, all three requests had been fulfilled as of March 8, 2017. Since all requested records have been provided, this appeal is moot with regard to these three requests. See 40 KAR 1:030, Section 6.
In his appeal dated March 13, 2017, SmartProcure Executive Vice President Peter Cagnina attempts to raise a further issue. SmartProcure has made the District aware that it intends to continue making these requests on a quarterly basis. On October 8, 2017, Paula Snowden, on behalf of the District, submitted a complaint to the Better Business Bureau alleging that these regular open records requests constituted "an abusive business practice." 1 Mr. Cagnina counters in his appeal that the District's complaint was made "with the intent to subvert SmartProcure from submitting open records request[s] to Powell's Valley Water District."
KRS 61.880(4) allows an open records appeal to be brought "[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant." In this case, however, since the District has now complied with all requests made previously by SmartProcure, absent any pending open records request, there is no current controversy over which this office has jurisdiction.
Mr. Cagnina's argument, at this point, essentially constitutes a claim of retaliation for past open records requests. We have repeatedly found a lack of jurisdiction in such cases. See 94-ORD-108 (no jurisdiction over retaliation claim even though "this Office strongly discourages agency attempts to frustrate access to public records, and finds that such conduct clearly contravenes the spirit and intent of the Open Records Law"); 11-ORD-182 (declining retaliation claim "because the Open Records Act limits our role in open records disputes to issuing decisions stating whether an agency violated the Act"); 09-ORD-095, n.6 (retaliation claim "beyond the scope of our review").
In accordance with these prior decisions, we find no jurisdiction over Mr. Cagnina's retaliation claim. As in 94-ORD-108, however, we observe that measures taken by public agencies to discourage or punish access to public records are at odds with the spirit of the Open Records Act. Should future requests for records prove unreasonably burdensome to the District, we note the existence of KRS 61.872(6), along with the high standard of proof it entails:
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 function 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.
We further note that if future open records requests are made for a commercial purpose, the District may require SmartProcure to certify the commercial purpose and enter into a contract establishing a reasonable fee for the records as set forth in KRS 61.874(4)(c).
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 must 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