TO BE PUBLISHED
January 10, 1995
In Re: F. Keith Brown, Esq./Kentucky Revenue Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Revenue Cabinet's denial of Mr. F. Kevin Brown's September 20, 1994, open records request to inspect the following public records:
All circuit court agreed judgments entered into by the Revenue Cabinet in 1993 and through September 15, 1994 requiring payments to the state in excess of $10,000 in settlement of claims for overdue sales and/or use taxes pursuant to KRS Chapter 139.
By letter dated September 23, 1994, Susan F. Stivers, Division of Legal Services, on behalf of the Revenue Cabinet, denied Mr. Brown's request. Ms. Stivers's response is summarized herein as follows:
1. The Cabinet objected to the blanket request for information made by the request. In support of this objection, Ms. Stivers cites OAG 89-8. In that opinion, this office, in regard to a blanket request for information, stated:
As far back as 1976 this office, in OAG 76-375, . . . concluded that blanket requests for information on a particular subject without specifying certain documents need not be honored. If a person cannot describe the documents he seeks to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material. See OAG 84-342 . . . . A request must be specific enough so that a public agency can identify and locate the records in question. See OAG 86-65 . . . .
In regard to Mr. Brown's request, he described and narrowed the documents he sought to: (1) Circuit Court Agreed Judgments; (2) settling claims for overdue sales and/or use taxes; (3) in excess of $10,000 dollars; (4) from January, 1993 through September 15, 1994. Thus, Mr. Brown has identified and narrowed his request in such a manner that the records can be reasonably identified.
2. The Cabinet states that these documents cannot be easily located. In support of this argument, Ms. Stivers states that the Cabinet does not maintain its records of settlement of claims in terms of either board or state court actions or by dollar amounts. Accordingly, the Cabinet argues that responding to Mr. Brown's request would entail the "compiling of information or making of a list that is beyond the scope of an agency's obligation under the Open Records Act." In support of this argument, OAG 83-167 is cited. That opinion, in relevant part, held that an agency is not required to prepare a list which is not already in existence.
Because the documents requested in the instant request are already in existence and do not constitute the compiling of information or the making of a list, the reasoning provided by OAG 83-167 is inapposite.
3. In addition to its argument that the records requested are not maintained in terms or in such a manner that the Cabinet can easily locate them, Ms. Stivers states that Mr. Brown's request would place an unreasonable burden on the Cabinet because it would have to manually search through a substantial number of closed files to find the documents that meet the request. In support of this reasoning, she cites KRS 61.872(6) and OAGs 89-88 and 83-386.
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.
In 92-ORD-1365, this Office explained the application of KRS 61.872(6), in the context of an open records request, as follows:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records." KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it.
We believe that Mr. Brown has satisfied the precondition to inspection that he identify with reasonable particularity the documents he seeks to inspect and that those documents are a limited class. The documents are limited to "circuit court agreed judgments." These requested documents are further narrowed to only those contained in closed files from January, 1993 through September 15, 1994 and which required payments to the State in excess of $10,000.
The burden then shifts to the Cabinet to show, by clear and convincing evidence, that this request imposes an unreasonable burden on it.
As evidence to support meeting this burden, Ms. Stivers states that the Cabinet's Legal Services Division has maintained a case load well in excess of 200 cases during the time frame set forth in the request and has closed a "substantial number of files during that time." She further states that a manual retrieval and examination of these files would be time consuming, unduly burdensome, and disruptive of the essential functions of the Cabinet. In addition, a portion of the Cabinet's litigation and settlements are handled by the Enforcement Legal Section of the Division of Collections, whose files are also not maintained in a fashion to readily respond to Mr. Brown's request.
The Cabinet also references OAG 89-88 and OAG 83-386 in support of its denial on the basis of unreasonable burden.
In OAG 89-88, this office held that the Department of Insurance's claim that an open records request imposed an undue burden on it was supported by evidence which showed the request involved the inspection of some 800 records, contained among seventy-seven files, covering a five year period, and which was exacerbated by the necessity of separating confidential from non-confidential material.
In OAG 83-386, an open records request to the Department of Transportation was held properly denied where the denial was based on the fact that the request was a blanket request to inspect all the records in the Right of Way and Legal Divisions without specifying particular documents and which would have required the separation of exempted and non-exempted material in broad categories of records.
In the instant request, the Cabinet states that the Legal Services Division maintained a case load in excess of 200 cases and that a "substantial number" of the cases were closed during the relevant time period.
It is the decision of this office that the documents requested have been specifically identified and the number required to be retrieved does not, under the facts presented by the Cabinet, appear by clear and convincing evidence to be so numerous as to impose an unreasonable burden upon the agency.
In discussing the difficulty of assessing whether an open records request places an unreasonable burden upon an agency, this Office, in OAG 90-112, stated:
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation. In the instant situation, this Office opines that the Kentucky State Police has failed to sustain its burden of proof by showing with clear and convincing evidence that Mr. Zoellers' request is unreasonably burdensome. However, future requests of a similar nature might be properly denied pursuant to KRS 61.872(5) [now codified as KRS 61.872(6)] if new or additional evidence can be produced which demonstrates by "clear and convincing evidence" that the request is unreasonably burdensome. However, it is stressed that this Office has previously opined that a request to inspect "10,000 cases are certainly 'voluminous,'" but not necessarily unreasonably burdensome. OAG 84-278, p. 2. . . .
We conclude that the evidence presented by the Cabinet fails to establish by clear and convincing evidence that the request would be unreasonably burdensome. Accordingly, the documents sought by Mr. Brown should be made available for inspection.
In addition to the above, the agency, in its response, denied Mr. Brown's request to inspect the closed files because the documents in the files are protected from disclosure under Open Records for a variety of exemptions, including attorney work product, attorney-client privilege, KRS 61.878, KRS 131.190, and KRS 131.081(15).
We conclude that Mr. Brown has not made a request to inspect the closed files themselves, just the circuit court agreed judgments in excess of $10,000, which the agency should retrieve for his inspection. Accordingly, that issue will not be addressed in this decision.
The Kentucky Revenue Cabinet may challenge this decision 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
F. Keith Brown, Esq.
Pike Legal Group
P.O. Box 369
Shepherdsville, KY 40165-0369
Susan F. Stivers, Esq.
Division of Legal Services
P.O. Box 423
Frankfort, KY 40602-0423