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 Kentucky State Board of Elections ("Board") violated the Open Records Act in denying Mark A. Wohlander's February 12, 2019, request for "copies of all records and/or documents related to the following:"
a) Names of all individuals searched by [Secretary of State] Allison Lundergan Grimes, former Assistant [SOS] Lindsay Hughes Thurston, Mary Sue Helms, Bradford Queen, and any other members of the Office of Secretary of State or Kentucky [B]oard of [E]lections, searches which exceeded the legal access to the Voter Registration System.
The request included searches between January 1, 2017 to the date of the request for names of "political candidates, federal employees or judges, members of Kentucky Boards or Commissions, Executive Branch [C]ommissions, Members of the Department of Veterans Affairs, [M]embers of the Kentucky Board of Education, state employees and all other names searched by the previously named individuals or other members of the office of the [SOS] or [Board]." It also included, but was not limited to: a) Rashad Cleveland; b) Alan Hess; c) Rocky Adkins; d) Kathy Gornik; e) Thomas Fulton; f) Norman Arflack; and g) Benjamin Adams. Mr. Wohlander asked the Board to provide the copies on a CD or a DVD. By letter dated February 15, 2019, Sandy Milburn, Training Officer and Acting Custodian of Records Designee, responded on behalf of the Board. She asserted that "searches 'which exceed the legal access to the Voter Registration System,'" appears to be "a legal term of art." The Board stated it was "unaware of any search by these individuals that 'exceed the legal access to the Voter Registration System.' Therefore, this agency is unable to fulfill your request as it possesses no record searches that 'exceed the legal access to the Voter Registration System.'"
On appeal, Mr. Wohlander argued, "searches which exceed the legal access to the [Board] have been routinely conducted [by] individuals since from [sic] at least January of 2016." According to Mr. Wohlander, "it is abundantly clear that there is significant evidence of the searches which 'exceed the legal access to the Voter Registration System' as recently reported in an article published in [ The Lexington Herald-Leader ]." Attached to said article "were twenty-three [23] pages of logs of searches conducted by Lindsey Hughes Thurston and Mary Sue Helms." At a minimum, he stated, the logs indicate that Ms. Thurston, Ms. Helms, and Ms. Gaylon have conducted searches of the Voter Registration System. "It also appears " that the logs are "incomplete and it is anticipated that the searches were likely much more extensive, and likely involves others at the Office of the [SOS] and the [Board]." (Emphasis added). Mr. Wohlander provided no evidence in support of these allegations beyond the referenced article, but noted that, "The improper searches have exposed the [Board] and its members to a possible class action lawsuit which is being considered by at least one of the individuals whose name was searched. "
Upon receiving notification of Mr. Wohlander's appeal, Ms. Wilburn reiterated the Board's position that "the term 'exceed the legal access' is an undefined term of art, of which the [Board] is unaware. " In addition, she advised that Mr. Wohlander is counsel for the plaintiff in litigation filed against the Board in Franklin Circuit Court, No. 17-CI-1238. Quoting KRS 61.878(1), she argued that Mr. Wohlander "is attempting to circumvent the Kentucky Rules of Civil Procedure and the court process to obtain information that he perceives is relevant to the aforementioned case." However, the Act is "not to be used as a tool to circumvent the discovery process of civil litigation."
Resolution of the issue presented turns on 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. Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, 1 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. Wohlander 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. 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").
"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, 3 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." Id. , p. 3 (quoting OAG 89-8). Thus, a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in "definite, specific and unequivocal terms" the records he wishes to receive. Id. Mr. Wohlander did not do so in premising his request on a legal conclusion instead of providing searchable criteria by which the Board can identify and locate all existing responsive documents. See 08-ORD-147; 13-ORD-177; 16-ORD-242.
In determining that a request was too imprecise to satisfy KRS 61.872(3)(b), 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.
13-ORD-077, p. 4. Mr. Wolander asked for copies of " all records and/or documents " relating to allegedly improper searches, rather than requesting information, 4 and this aspect of his phrasing is not fatal standing alone. (Emphasis added). But, he specifically asked for all such records or documents relating to "[n]ames of all individuals searched [by four named individuals] "and any other members of [SOS or the Board] . . . searches which exceeded the legal access to the Voter Registration System ," performed from January 1, 2017, to February 12, 2019. (Emphasis added).
In addition to being premised on the assumption that searches matching that description existed, his request also broadly encompassed searches for seven categories of individuals, and state employees, in addition to " all other names searched by the previously named individuals or other members" of the SOS or Board, including but not limited to seven individuals that he identified by name. (Emphasis added.) The request did not precisely describe records, nor does a mechanism exist by which all existing responsive documents could be identified and located given that no records or documents are maintained according to his criteria. See 16-ORD-242 (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"). 5 Accordingly, such records, even assuming that any existed, could not be properly characterized as "readily available" within the Board. 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"); 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" because the Board "does not classify its records according to such a category"); 6 16-ORD-138.
Because the Board is located in Frankfort, Kentucky (Franklin County) and Mr. Wohlander's office is located in Lexington, Kentucky (Fayette County), Mr. Wohlander satisfies the first requirement of KRS 61.872(3)(b). Nevertheless, he 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); 08-ORD-047; 12-ORD-049.
Likewise, the request was also not "adequate for a reasonable person to ascertain its nature and scope . . . ." or enable the records custodian to "identify what documents [he] wish[es] to see," 7 and was therefore not sufficiently descriptive under KRS 61.872(2), as construed in Chestnut, 250 S.W.3d at 661, for the Board to identify, locate, and retrieve all potentially responsive documents. Instead, Mr. Wohlander framed his request in such a way as to require the Board to first make a threshold legal determination that improper searches, i.e. , searches "which exceeded the legal access to the Voter Registration System," were performed. 8 The Board has consistently disputed this characterization of any searches that were performed; the record on appeal is devoid of any objective proof to refute its position as the logs that Mr. Wohlander provided establish only that some of the named individuals performed searches in the Voter Registration System. Notwithstanding his belief that the searches "were likely more extensive," etc., this kind of speculation is not sufficient to conclusively refute the Board's position that no records or documents matching the description provided exist or the underlying premise that no improper searches were conducted. 9
In light of Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), this office must briefly address the Board's belated secondary argument by clarifying that Mr. Wohlander's request "should be evaluated independently of whether or not [he] is a party or potential party to litigation." See 12-ORD-152. The Board was correct in asserting that parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests. However, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Act in a line of decisions dating back to 1982. In other words, "The presence of litigation, and the availability of records through discovery, does not relieve a public agency of its open records duties." 16-ORD-176, p. 2. A litigant, or an attorney representing a litigant, "stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records." OAG 82-169, p. 2; 16-ORD-176. As the Court in Stewart observed, KRS 61.878(1) "does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, [emphasis added] but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order." Id. at 863. See Dep't of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010)(reaffirming Stewart in holding that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records"); 11-ORD-108; 18-ORD-200. Compare 11-ORD-192 (Attorney General declined jurisdiction of the Open Records Appeal because the same Open Records issue presented was before the circuit court).
The record on appeal does not contain any substantiating documentation or additional information regarding No. 17-CI-1238 by which to determine whether the precise question presented here is also currently before Franklin Circuit Court. Accordingly, the Board's argument regarding application of KRS 61.878(1) is unpersuasive based on the record. See KRS 61.880(2)(c). Inasmuch as Mr. Wohlander did not "precisely describe" the records being sought, even assuming that any exist, as required to receive copies per KRS 61.872(3)(b), the Attorney General affirms the denial of his request.
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.
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