Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Government ("Louisville Metro") violated the Open Records Act ("Act") in the disposition of a request submitted by Ann Ramser ("Appellant"). For the reasons stated below, we find that Louisville Metro violated the Act when it failed to timely produce responsive records, per KRS 61.880(1), and failed to properly invoke KRS 61.872(5) and provide the statutorily required adequate explanation of the cause for delay. Louisville Metro failed to provide clear and convincing evidence to meet its burden of proof that the request created an unreasonable burden, and subverted the Act within the meaning of KRS 61.880(4) 1 by failing to provide Appellant access to responsive records for 23 days.
On Friday, September 6, 2019, Appellant submitted an open records request to Louisville Metro seeking the following records:
Any correspondence, including emails, from/to any employee in mayor's office, Becky Gorman, or Molly Clark related to Catholic Charities development plan 19devplan1089 or the landmark application 19designatoin1000 and any correspondence, including emails, between Jon Baker and John Carroll related to Catholic Charities development plan 19devplan 1089, the landmark application 19desgnation1000, or reference to old landmark ordinance, the amended landmark ordinance signed by the mayor on 8/8/2019 or economic hardship.
Louisville Metro responded to the request on the same date stating, "[y]ou may expect a response within 3 Metro Government working days, at which time you will be notified when records can be made available, if they are identified to exist." On September 7, 2019, Appellant contacted Louisville Metro by email asking to add to her request, "employees in the Louisville Forward Staff and Bill Weyland as people to who this email search applies[.]" On Monday, September 9, 2019, Louisville Metro responded, "[w]e can add him."
On Friday, September 13, 2019, Appellant followed up on the request by email, stating, "I have not heard anything and three business days have passed." Having received no response, Appellant sent a second follow-up email on Tuesday, September 17, 2019. Louisville Metro responded the following day, stating, "[t]he public records you seek are in active use, in storage, or otherwise not readily available. Your request requires an email search and results will require legal review. Records will be available on or before close of business November 18, 2019."
On September 24, 2019, Appellant appealed, arguing, "I do not believe a more than two-month delay is appropriate or in compliance with the [Act]. Furthermore, I do not believe [Louisville Metro] provided a detailed explanation." On October 2, 2019, Louisville Metro responded to the appeal by implying Appellant's request was unreasonably burdensome. Louisville Metro argued that, "one cannot ask an 'all-records-that-possibly-relate-to-a-particular-subject' type of request, and expect any sort of meaningful response within three days regarding how many records meet the criteria." Louisville Metro argued its six-week estimation for compliance was reasonable, and was a "realistic deadline for compliance with a broad and unspecific request."
Louisville Metro also stated that it provided records responsive to Appellant's request, and attached an October 2, 2019 email as evidence Appellant received responsive records. However, Louisville Metro made "redactions in protection of personal privacy consistent with KRS 61.878(1)(a) such as personal email addresses and personal phone numbers." The Louisville Metro email also stated that two responsive records were withheld pursuant to KRS 61.878(1)(i) and (j), because "[t]he documents were drafts of a report." However, Louisville Metro failed to support its argument that the request was burdensome. The response provide no evidence relating to the volume of records involved, or any difficulty locating and retrieving the responsive records.
Louisville Metro Violated KRS 61.880(1) and KRS 61.872(5) . Louisville Metro violated the Act by failing to comply with the time requirements stated in KRS 61.880(1), or properly invoke KRS 61.872(5) in postponing Appellant's access to the responsive records. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." "The value of information is partly a function of time."
Fiduccia v. U.S. Dep't of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); 01-ORD-140. For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-206. Louisville Metro issued a timely written response to the request, but violated KRS 61.880(1) by failing to make the responsive records available for inspection for 23 days.
No evidence exists in the record that the scope of Appellant's request contributed to the delay in providing responsive records. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " 18-ORD-174, p. 4 (citing OAG 92-117). Further, "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 05-ORD-099. However, Louisville Metro failed to explain the cause for the 23-day delay, and failed to provide facts showing that the breadth of the request contributed to the delay, such as facts relating to the storage location of records, the number of records at issue, or the difficulty retrieving those records. See 18-ORD-174. As such, no grounds exist to depart from the requirement that the agency "notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3.
Louisville Metro provided Appellant copies of responsive records during the appeal, but failed to expressly invoke KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond the three-business-day requirement of KRS 61.880(1). KRS 61.872(5) provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " A public agency is required to expressly invoke KRS 61.872(5), because of the mandatory requirement in KRS 61.880(1) that the requester receive written notice within the three-day period of the agency decision. Louisville Metro violated the Act, because an express invocation of KRS 61.872(5) is absent from its written responses and appeal.
Louisville Metro also failed to provide the statutorily required explanation of the cause for the 23-day delay. If any of the records being sought were "in active use, in storage or not otherwise available," Louisville Metro failed to identify which of the permissible reasons for delay applied or to what extent. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. Louisville Metro's statement that it must first have the responsive records reviewed for legal authority and redactions is not an adequate explanation for purposes of KRS 61.872(5). "The need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 17-ORD-082. "In the absence of a legitimate detailed explanation of the cause for delaying access" for 23 days, the Attorney General finds that Appellant did not receive "timely access" to existing responsive records. 13-ORD-052, pp. 6-7; 16-ORD-210.
Louisville Metro Failed to Provide Clear and Convincing Evidence of an Unreasonable Burden . Louisville Metro correctly observes that this office has historically criticized "open-ended-any-and-all-records-that-relate type requests" relating to a particular subject or individual such as the request at issue. 03 - ORD-040, p. 2; 99-ORD-14; 96-ORD-101. However, the record does not support Louisville Metro's claim that honoring the request here created an unreasonable burden. A public agency is required to support a claim that honoring a request would create an unreasonable burden with clear and convincing evidence.
Commonwealth v. Chestnut, 205 S.W.3d 655, 664 (Ky. 2008); KRS 61.872(6). 2 The Court in 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." Id. 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.
We have recognized that a bare allegation standing alone does not sustain the burden under KRS 61.872(6) and Chestnut . 18-ORD-071; 12-ORD-152. In extreme cases, we have sustained claims upon a proper showing of clear and convincing evidence that the difficulty of producing and reviewing voluminous records created an unreasonable burden. 18-ORD-120 (request requiring a systematic review of 11,680,000 responsive records to redact information protected by 18 U.S.C. Section 2721 (a)(1)-(2)); 14-ORD-109 (request requiring review of at least 6,200 responsive emails for information protected by FERPA).
Louisville Metro did not argue Appellant's request created an unreasonable burden until the appeal. Thus, the agency failed to "forecast what its actual burden would be" prior to asserting a claim of an unreasonable burden. 18-ORD-071, p. 6; 12-ORD-152. Nevertheless, Louisville Metro failed to support its claim with the facts and evidence required to establish the existence of an unreasonable burden. Louisville Metro failed to identify any particular difficulty in locating these responsive records, relating to age of the records, the location of records, or the type of records involved. Louisville Metro also failed to identify the volume of responsive records at issue. On appeal, Louisville Metro stated that the redaction or withholding of responsive records was necessary under KRS 61.878(1)(a) and KRS 61.878(1)(i)-(j). However, Louisville Metro failed to argue that those redactions contributed to the "difficulty of producing and reviewing voluminous records[.]" Accordingly, Louisville Metro failed to meet its burden of proof of clear and convincing evidence regarding its claim of an unreasonable burden.
Louisville Metro Subverted the Intent of the Act within the Meaning of KRS 61.880(4) . Louisville Metro failed to provide Appellant access to responsive records for 23 days. Evidence does not exist in the record to justify the delay or support a finding that Appellant's request contributed to the delay. An excessive delay subverts the intent of the Act where the public agency also fails to provide an adequate explanation for the cause of the delay, pursuant to KRS 61.872(5). See 18-ORD-174. Accordingly, we find that Louisville Metro subverted the intent of the Act within the meaning of KRS 61.880(4) in its disposition of Appellant's request.
A party aggrieved by this decision may appeal it 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 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 KRS 61.880(4) states, in relevant part, "[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, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 KRS 61.872(6) provides: "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."