Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Water Company ("LWC") violated the Kentucky Open Records Act in denying David M. Feldkamp's July 26, 2017, request for "all nonexempt public records related to your agency's contact or interaction of any kind with resident, property owner, or property located at 4310 West Broadway, Louisville, Kentucky 40211 . . . from January 1, 2013 to July 25, 2017," in electronic format if available, per KRS 61.872(4)(a), or in hard copy format if not. Mr. Feldkamp asked for "an itemized schedule of fees for producing the requested records as well as postage, if any." In addition, he requested that LWC "provide a copy of your agency's document retention policy as well as your agency's rules and regulations to provide full access to public records pursuant to KRS 61.876(1)." In a timely response per KRS 61.880(1), LWC "advised that pursuant to Kentucky Revised Statute KRS 61.878, the information you request is exempt from" disclosure; LWC also referred Mr. Feldkamp to 96-ORD-176. "If, however, the current account holder residing at 4310 West Broadway is your client," LWC continued, "you can forward me a copy of authorization for the release of records signed by your client and I will be able to release the documentation to you."
In his August 30, 2017, letter of appeal, Mr. Feldkamp correctly noted that LWC failed to respond to his request for the agency's document retention policy as well as the agency's rules and regulations. 1 Mr. Feldkamp further asserted that 96-ORD-176, the agency's sole basis for denying the remainder of his request, only applies to billing records and is therefore not controlling. 2 Upon receiving notification of Mr. Feldkamp's appeal from this office, Vice President and General Counsel Michael F. Tigue responded on behalf of LWC. Mr. Tigue advised that Mr. Feldkamp's request "potentially encompasses numerous records maintained by LWC that could conceivably be understood to relate to LWC's contact or interaction with any of the residents, owners, or property over the past four and one-half years. Respectfully, LWC believes Mr. Feldkamp's request is vague and unduly burdensome. " Mr. Tigue asserted:
Without greater specificity, it is not possible for LWC to estimate the total number of records encompassed within or the time needed to produce the requested records particularly when they could potentially be located anywhere within LWC. In fact, in order to be sure that LWC acquired, reviewed and produced all records of any kind that potentially relate to LWC's "contact" or "interaction" with the subject residents, owners or property for the period in question, LWC's personnel would have to examine potentially hundreds if not thousands of records to identify whether the records might or might not fit within the general meaning of Mr. Feldkamp's request.
Citing 06-ORD-090, LWC further argued that Mr. Feldkamp "has the affirmative responsibility to identify the records sought in his request with 'reasonable particularity' so that LWC is not otherwise required to review numerous records trying to ascertain/ speculate whether they 'relate' to LWC's 'contact' or 'interaction' with the residents, owners or property over the period specified." Accordingly, LWC maintained that Mr. Feldkamp's "open-ended request is unreasonable, unduly burdensome and, therefore, precluded by KRS 61.872(6)."
Insofar as prior decisions by this office that predated
Commonwealth v. Chestnut, 255 S.W.3d 655, 661 (Ky. 2008), such as 06-ORD-090, may have applied this "reasonable particularity" standard to requests for onsite inspection of records, Chestnut implicitly overruled those decisions. 15-ORD-075, p. 4, n. 1. The Kentucky Supreme Court observed that in contrast to KRS 61.872(3)(b), "nothing in KRS 61.872(2) contains any sort of particularity requirement." Id. at 661. Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Resolution of the question presented here 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; 15-ORD-212. Mr. Feldkamp satisfies neither of these requirements. See 15-ORD-020 (a request for "proof" that Parole Board members complied with a statute "does not describe a readily identifiable class or type of records"). 3
Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by onsite inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by receipt of copies without prior inspection; this degree of precision applies whether the request asks for the records in hard copy or electronic format "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." 16-ORD-242, p. 4 (assertion that agency would "have to conduct exhaustive research in order to comply with . . . request for 'any and all' responsive documents for a 12.5 year period relating to projects that are not identified with a project name, [etc.] is entirely credible"); 17-ORD-177. "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, p. 3, quoting 95-ORD-108. 4 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. 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. See 08-ORD-147; 13-ORD-077.
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; 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"); 15-ORD-075 (it was "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"). 5
LWC initially violated the Act from a procedural standpoint in failing to cite which of the statutory exceptions identified at KRS 61.878 (1) it was invoking. KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." Accordingly, the Kentucky Court of Appeals observed that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013). This office has long recognized that a public agency has the burden of justifying its denial on appeal to the Attorney General or to the circuit court. KRS 61.880(2)(c); KRS 61.882(3). 00-ORD-10, pp. 10-11(citation omitted). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11.
The agency's initial response lacked any reference to KRS 61.878(1)(a), the specific exception upon which LWC implicitly relied in denying Mr. Feldkamp's request, and the requisite brief explanation of how that exception applied. See 09-ORD-150 (generally referring to unspecified sections of the Handbook issued by this office without further explanation does not satisfy KRS 61.880(1)). In failing to cite KRS 61.878 (1)(a) and explain how it purportedly applied to all existing responsive documents in their entirety, LWC initially violated KRS 61.880(1) as it did not deny the request based on KRS 61.872(3)(b); any information contained in responsive documents that is exempt per KRS 61.878(1)(a) would have to be separated under KRS 61.878(4). However, LWC was not statutorily required under KRS 61.872(3)(b) to provide Mr. Feldkamp with copies of records that he failed to precisely describe. See 16-ORD-138 (request for all records generated within a five-year period related "in any way" to Deloitte or Deloitte Consulting, including but "not limited to, all records of contracts, payments, audits, complaints, reports, and reviews of any kind," in addition to "all other public records" asking for information "related in any way to or otherwise identifying Deloitte" and the related communications and materials, was not precise); 15-ORD-086; 15-ORD-212. The denial is affirmed.
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 On appeal, LWC acknowledged this omission and enclosed copies of its retention policy and its rules and regulations; accordingly, issues regarding this aspect of Mr. Feldkamp's request are moot per 40 KAR 1:030 Section 6.
2 In 96-ORD-176, this office found that "customer billing records contain information which 'touches upon the personal features of private lives'." Id., quoting Zink v. Commonwealth of Kentucky, 925 S.W.2d 825, 828 (Ky. App. 1994). To the extent such information "'can be used to infer a particular lifestyle of a residential customer or suggest the competitive position of commercial and industrial customers,'" the Attorney General agreed, "it is not unreasonable to assume that [a public utility's] customers have at least some expectation of privacy in their billing records." 96-ORD-176, p. 2. Accordingly, this office concluded, "that billing records contain information of a personal nature" and the "relevant public interest supporting disclosure" in that appeal "did not outweigh the privacy interests of individual customers in their billing records." Id., pp. 2-3. The agency had indicated a willingness to provide "generic billing information without individual customer names" which could be used "to verify billing methodology and calculations." Id. Release of "specific billing information, which identifies individual users and their individual water and sewer usage," was, in our view, "simply too invasive." Id., p. 3.
This office continued to ascribe to that view as it related to individual users but modified its position as it related to aggregate information contained in billing records of multiple user entities in 09-ORD-196. The agency relied on KRS 61.878(1)(a) "'because those documents can be used to infer the personal lifestyle of a customer or suggest the competitive position of a commercial or industrial customer and would be an improper and unjustifiable invasion of the customers' privacy,' as the Attorney General determined in 96-ORD-176." 09-ORD-196, pp. 1-2. This office modified 96-ORD-176 and 96-ORD-237, as "[b]oth decisions were erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users and information contained in a water bill for a single residential user." Under 09-ORD-196, documents responsive to Mr. Feldkamp's request, if any (unclear from the record as LWC only addressed billing records), that contain aggregate information rather than information regarding a "single residential user" would not be protected under KRS 61.878(1)(a).
3 Mr. Feldkamp's request is not only too imprecise to satisfy KRS 61.872(3)(b), but also failed to adequately "describe" records per KRS 61.872(2) as construed in Chestnut, 250 S.W.3d at 661. See 17-ORD-177, p. 4, n. 5.
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 Mr. Feldkamp asked for "all" records that are "related to" LWC's contact or interaction "of any kind . . . "for a period of 4 1/2 years. See 14-ORD-065 (finding "position that 'any record' or 'all records' are not synonymous or at least functionally equivalent" was unpersuasive). Here, as in 14-ORD-065, "[a] lengthy discussion of semantics regarding this elementary principle is unwarranted. It suffices to note that 'any and all' is a phrase of common usage, as evidenced by the regularity with which requesters in varying contexts use 'any' and 'all' interchangeably." Id., p. 9 (agreeing, "that said terms 'are a distinction without a difference,'" given the dictionary definition of "any")(internal citation omitted). LWC reasonably interpreted Mr. Feldkamp's request as encompassing any/all existing public records in the possession or custody of the agency matching the vague description provided.