Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Lexington-Fayette Urban County Government violated Open Records Act by responding untimely and by denying request for e-mails, where no search was conducted to determine a minimum number of responsive e-mails based on revised request, and thus no unreasonable burden was shown by clear and convincing evidence. Requirement for precise description of records under KRS 61.872(3)(b) does not apply to requests for onsite inspection.
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government ("LFUCG") violated the Open Records Act in its disposition of Wanda Wallen's June 17, 2019, requests for various e-mails and certain investigative and disciplinary records. For the reasons that follow, we find that LFUCG violated the Act by responding untimely and by improperly denying the request for e-mails.
Ms. Wallen submitted two open records requests to LFUCG on June 17, 2019. The first request was for all employee disciplinary actions from January 1, 2017, to June 17, 2019, within the Division of Water Quality. The second request was for all records relating to an investigation "conducted by Jimmy Ross on or about March 15, 2019 containing allegations of a verbal attack by Andre Scott & Billy Moore."
Included as part of the second request were three "Search request for E-mail" forms. The first form requested e-mails to or from 12 named individuals between January 1, 2017, and June 17, 2019, containing any of 14 key words: "Wanda," "Wallen," "Andre," "Scott," "William," "Moore," "Billy," "Snitch," "Winch," "Bullshit," "Discipline," "Role," "Policy," or "Employee." The second form requested e-mails to or from 11 named individuals between January 1, 2015, and March 30, 2016, containing key words identified as: "'Wanda' or 'Wallen' or 'Charles' or 'Charlie' and 'Martin' or 'CAO Policy' or 'Policy' or 'Procedure' or 'Harassment' or 'Workplace.'" The third form requested e-mails to or from the same 11 individuals between October 27, 2016, and January 17, 2017, containing key words identified as: "'Wanda' or 'Wallen' or 'Rodney' or 'Rod' or 'Chervus' and 'CAO Policy' or 'Policy on Violence in the Workplace' or 'War' or 'Policy' or 'Violence' or 'Workplace' or 'Harassment.'"
On June 18, 2019, LFUCG's records custodian sent a response stating: "Due to the voluminous nature of your request and the lengthy time period covered by your request and the email search request, it will take some time to process your request. I will update you by letter within 5-7 business days as to the status of your request. At the end of this process, all non-exempt documents will be made available for your inspection."
KRS 61.880(1) requires that a public agency make a disposition of a request for public records within three days, excluding weekends and legal holidays. KRS 61.872(5), however, allows for an exception:
This office has, in extreme cases, affirmed the application of KRS 61.872(5) to requests of broad scope for records that are "difficult to locate and retrieve," containing "a mixture of exempt and nonexempt information." 12-ORD-097. Even in such cases, however, "any extension of the three day deadline for disclosure 'must be accompanied by a detailed explanation of the cause for delay and a written commitment to release the records on the earliest date certain.'" Id . (quoting 01-ORD-38). As LFUCG provided no date certain for the release of records, but merely promised an "update ... as to the status of [the] request," its response failed to satisfy the conditions of KRS 61.872(5). Thus, we find that LFUCG did not timely dispose of the request, in violation of KRS 61.880(1).
On June 21, 2019, LFUCG sent Ms. Wallen the requested records relating to the investigation. On June 27, 2019, LFUCG made the disciplinary records available to Ms. Wallen for inspection and copying, but incorrectly indicated that the date range was from January 1, 2019, to June 17, 2019, rather than the requested range of January 1, 2017, to June 17, 2019. On appeal, LFUCG explained that this was a "clerical error" and "all documents for the time period of January 1, 2017 to June 17, 2019 were provided." Accordingly, we find this appeal moot pursuant to 40 KAR 1:030, Section 6, except as to the e-mails.
On July 3, 2019, LFUCG sent Ms. Wallen a letter regarding her requests for e-mails, stating that "[c]ertain words you chose to use were too broad in nature and would cause excessive burden in order to get records pursuant to your request." LFUCG indicated that "[a]n initial review indicates at least more than 11,000 emails would have to be reviewed" and this review "would take one employee working 40 hours a week almost 5 weeks to complete." For this reason, LFUCG asked Ms. Wallen to narrow the scope of her request according to "a specific subject matter."
In a reply letter dated July 17, 2019, Ms. Wallen contended that "[t]he mere fact that [the request] may be tedious and time consuming does not automatically constitute an unreasonable burden." Nevertheless, she agreed to narrow her request as follows: "In my efforts to assist LFUCG with my Open Records Email Request and for the purpose of providing guidance to LFUCG as to the subject matter of the correspondence(s) the subject matter can be Wanda Wallen. All individual name(s) and key word(s) provided in my request are to be used in conjunction with and as related to the subject matter Wanda Wallen."
Apparently, LFUCG failed to take notice of this alteration of the request. On August 14, 2019, in response to Ms. Wallen's request for an update, LFUCG's records custodian wrote: "In my response dated July 3, 2019 you were asked to narrow your search to provide guidance as to the subject matter in order for LFUCG to compile the records. In which, [ sic ] you declined to do so." Thus, LFUCG reiterated its position that the request was "overly broad and burdensome" and "not a properly framed open records request." This office received Ms. Wallen's appeal on September 4, 2019.
We first address whether Ms. Wallen's request is properly framed. In its July 3, 2019, letter to Ms. Wallen, LFUCG cited 05-ORD-014, in which we stated that requests for inspection of public records must "identify the records being sought with reasonable particularity." With regard to requests for onsite inspection of records, as opposed to requests for copies by mail, our prior decisions imposing this "reasonable particularity" standard were implicitly overruled by
Commonwealth v. Chestnut , 250 S.W.3d 655 (Ky. 2008). See 10-ORD-189. Thus, 05-ORD-014 no longer has precedential value on this point.
Furthermore, even if Ms. Wallen's request had been for records by mail, it would have been properly framed. In 14-ORD-109, we held that a request for e-mail correspondence containing "certain domain names as either the senders or recipients ... for a nineteen (19) month period" was a proper request under KRS 61.872(3)(b), which requires that requests for copies by mail "precisely describe[] records which are readily available within the public agency." We stated in 14-ORD-109: "Since the request gives a time frame, a type of records, and an identified class within that type of records, it does not fail the requirement of a precise description." Because Ms. Wallen's request would have met this higher standard for records by mail, the request a fortiori was properly framed for purposes of onsite inspection.
Additionally, LFUCG argues that Ms. Wallen's request poses an unreasonable burden under KRS 61.872(6). 1LFUCG relies on its estimated figure from July 3, 2019, of "more than 11,000 emails [that] would have to be reviewed to determine whether any statutory exemption applies, and whether any documents must be redacted."
In a narrow range of cases where large numbers of records would require individualized review by multiple agency employees to comply with mandatory privacy provisions, we have upheld the application of the "unreasonable burden" standard of KRS 61.872(6). See 14-ORD-109 (over 6,200 e-mails subject to FERPA redaction); 11-ORD-173 (over 8,500 e-mails subject to FERPA redaction).
Here, however, the "unreasonable burden" argument is not ripe for review, as LFUCG has failed to take into account Ms. Wallen's narrowing of her request by subject matter on July 17, 2019. Therefore, the estimated figure of 11,000 e-mails is no longer valid. Without the "crucial piece of evidence" of a minimum number of responsive records in light of the altered request, LFUCG cannot demonstrate an unreasonable burden by clear and convincing evidence. 14-ORD-153.
Moreover, LFUCG has not identified any mandatory statutory redactions, or any necessity for review by multiple employees, as did the agencies in 14-ORD-109 and 11-ORD-173, but only asserted that "an employee" must review the e-mails for permissive redactions under KRS 61.878(1). Although LFUCG speculates that some responsive e-mails "could" contain "information subject to Protective Orders in ongoing litigation," it does not assert this as either a fact or a probability. Thus, LFUCG has not shown an unreasonable burden under KRS 61.872(6). Accordingly, we find that LFUCG violated the Open Records Act by denying Ms. Wallen's request for e-mails.
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 If the application places an unreasonable burden in producing public records[,] 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." KRS 61.872(6).