Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Metropolitan Sewer District ("MSD") violated the Open Records Act in its disposition of Jason Stanford's request for a variety of records spanning a 22-year period. For the reasons stated below, we find that MSD violated the Act.
Jason Stanford ("Appellant"), by letter dated September 1, 2017, made the following request for records to MSD:
1. All emails, notes, letters, memorandum, faxes, FOIA requests or other correspondence, both internal or external in nature, (including those correspondence exchanged with the Metropolitan Sewer District), dating from March 1, 1995 to September 1, 2017, concerning, relating to, or referencing the above mentioned items [;]
2. The complete As Built plans 616-12.24 and all related documentation, correspondence, application for Division of Water Permit 9259, Permit 9259 revised dating from March 1, 1995 to September 1, 2017[;]
3. All maintenance records, work orders, Corp of Engineer reports, service request and water quality certifications at 4200 South Park Rd and all addresses on Cooper Church Rd dating from March 1, 1995 to September 1, 2017[; and]
4. All legal, construction, accounting and engineering invoices, expenses and proof of payment associated with all above items dating from March 1, 1995 to September 1, 2017[.]
MSD responded to the request by letter dated September 5, 2017, advising Appellant that it would need "5 to 7 business days to compile these records. Once available, MSD will contact you to make arrangements to review and/or copy the records." 1 On September 20, 2017, Stephanie Harris, Assistant General Counsel, responded more fully to the request, asserting that the request was "overly broad and vague. " In support of its argument, MSD referenced decisions of the Attorney General that required a requester to "identify with reasonable particularity those documents which he/she wishes to review. OAG 89-81; OAG 91-58: OAG 92-56." MSD also advised Appellant that "in an effort to enable MSD to locate and make the records available, you must identify the records with sufficient particularity. " Appellant subsequently appealed that response.
In its response to the appeal, MSD explained that Appellant had earlier made a nearly identical request on February 1, 2017, but, in that request, Appellant had made the request for records over the period from March 1 2013, to February 2, 2017, only about a four-year period. In response to that earlier request, MSD conducted "a records search (for records relating to Southside/Vulcan Quarry and Pond Creek Project) from several departments whom MSD determined could potentially have records relating to the subject matters as identified. The departments included Engineering, Finance, Legal, Information Technology and Customer Services. In addition, MSD conducted a search of its archive records as well." According to MSD, the records search continued for more than 30 days and "various email correspondences, financial records, legal files and court documents and other miscellaneous records were identified." MSD explained that, "to the extent of MSD technology capabilities," it had performed a search of current MSD employee's email accounts whom it "potentially identified in relation to the Pond Creek Project and/or the Southside /Vulcan Quarry." In addition to providing Appellant with electronic records, he was allowed to inspect and copy MSD's physical records. As a result of that inspection, Appellant was provided 670 pages of records.
In response to this appeal, MSD noted that the September request was for records going back 22 (twenty-two) years, rather than just four years as in the earlier request. MSD explained that, regarding the request for emails, it would be "impossible to search each and every employee's mailbox for records referencing, referring to or concerning any of the subject matters identified in [Appellant's] request in an effort to ascertain whether an email and other correspondence exist. ? [A] general keyword search would have produced a voluminous and vast amount of records of which more than likely would not be responsive to Mr. Stanford's request." MSD stated that Appellant should provide the names of the employee(s) whose email accounts should be searched to ascertain whether the requested records exist, or that he would have to identify particular correspondence, other than what was produced in response to the February request.
Improperly Framed Request : MSD claims that the current request "is vague, overly broad and improperly framed, " and cites 99-0RD-14 for the proposition that a request for "any and all records that contain a name, a term, or a phrase is not a properly framed open records request." Analysis of this response requires reference to two different sections of the Act, and to the case of
Commonwealth v. Chestnut, 255 S.W.3d 655 (Ky. 2008). KRS 61.872(2) 2 sets the standard for a properly framed request where the requester wishes to merely inspect public records, while KRS 61.872(3)(b) 3 describes the standard when copies of records are requested by mail. Insofar as prior decisions by this office that predated Chestnut , such as 99-0RD-14, may have applied a "reasonable particularity" standard to requests for on-site 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." Id. at 661. 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.
Resolution of the question presented here does not implicate KRS 61.872(3)(b). Appellant's request was that the records be made available for " inspection and copying ," rather than requesting MSD to provide copies through the mail. As such, the question is whether the request would enable "a reasonable person to ascertain the nature and scope of the request." Chestnut , at 661. As demonstrated in its response to Appellant's request from February 2, 2017, MSD was able to ascertain the nature and scope of that earlier request; one that was almost identical to the request at issue, other than for the period of time for which the records were requested. MSD's argument that the request is vague and overbroad fails.
Unreasonably Burdensome/ Duplicative Request . Within the same argument that the "request "is vague, overly broad and improperly framed, " MSD argued that "such open ended requests place an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records." Although MSD did not specifically cite to KRS 61.872(6), it appears that MSD was alluding to that section, which allows for a public agency to refuse inspection of its records:
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. However, refusal under this section shall be sustained by clear and convincing evidence.
To the extent that MSD was claiming that Appellant's September request placed an unreasonable burden on it, we reject that claim. A refusal on the basis of "unreasonable burden" must be sustained by "clear and convincing evidence. " See Chestnut , S.W.3d at 664-665; 11-ORD-173; 14-ORD-044. Before the Kentucky Supreme Court decision in Chestnut , the Attorney General rarely found that the burden imposed on a public agency in producing public records was sufficiently unreasonable to justify invocation of KRS 61.872(6). Chestnut determined 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, " and that it cannot rely on "inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." 255 S.W.3d at 664-665. "The obvious fact that complying with an open records request will consume both time and manpower," the court concluded, "is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id. at 665.
In Chestnut , the Court discussed the intentionally high burden of proof that a public agency faces in attempting to successfully invoke KRS 61.872(6). At issue in Chestnut was a request by an inmate for a "copy of [his] inmate file excluding any documents that would be considered confidential [sic]." In determining that his request satisfied KRS 61.872(2), the Court observed that it "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. at 661. He was "required to do nothing more" than describe the record(s) sought, and "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents ? he had never seen." Id. In the present appeal, Appellant is in the same position as the requester in Chestnut ; he cannot reasonably be expected to request records he has never seen, nor suggest which employees of MSD may have responsive records.
Although MSD appears to argue that Appellant's request is unreasonably burdensome (and argues that the September request is duplicative of the February request), the record on appeal lacks clear and convincing evidence to substantiate that assertion. The agency made no attempt to "forecast what its actual burden would be." 12-ORD-152. Other than stating that it does not know all of the employees whose emails may be responsive to the request, MSD does not state the difficulty in locating and/or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. MSD simply argued that the "open ended requests place an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records." A bare allegation does not satisfy the requirements of KRS 61.872(6), nor do repeated requests amount to harassment standing alone. Id.
We recognize that the September request implicates records going back 22 years instead of merely four years, as in the February request. However, given that MSD was able to comply with Appellant's February request, the longer period does not in itself imply an unreasonable burden. The longer period does not, by itself, demonstrate clear and convincing evidence that producing the records for inspection would be unreasonably burdensome. Under these circumstances, "the agency satisfies its obligations under the Open Records Act by making the records available for inspection during normal office hours." Id. ; 12-ORD-169 (citing 99-ORD-63, p. 4). See 08-ORD-047; 06-ORD-155 (agency permitted to require on-site inspection of existing responsive documents it may possess before providing copies, but may not deny request); 11-ORD-127 (agency must "conduct a good faith search of the agencies, offices, and departments that could reasonably be expected to produce" records being sought notwithstanding "lack of 'particularity' in [the] request" as to "hold otherwise would facilitate agency abuse of the Open Records Act by enabling agencies to evade their statutory duties").
In its response to Appellant's February 2, 2017 open records request, MSD had already informed him that the records he described as "water quality certification" records did not exist. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Appellant provided no factual basis or credible argument as to why these records should exist. In the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested documents' nonexistence. See 11-ORD-091. Accordingly, we find no violation of the Open Records Act in MSD's denial of the water quality certification records.
MSD must comply with Appellant's request, and we urge mutual cooperation between the parties to ensure the earliest completion of records production.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 MSD's response of September 5, 2017, constituted a procedural violation of KRS 61.872(5) which requires a public agency, if records production will exceed three business days, to state the earliest date that the records will be available for inspection. MSD's response that it would need "5 to 7 business days to compile the records" does not state a date certain for when the records would be available for inspection.
2 KRS 61.872(2) states, in relevant part, that "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected ." (Emphasis added).
3 KRS 61.872(3)(b) states that a person may inspect public records: "By receiving copies of the public records from the public agency through the mail. 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. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing." (Emphasis added).