NOT TO BE PUBLISHED
March 10, 1997
In re: Joseph L. Silverburg/Marion Adjustment Center
Open Records Decision
This matter come to the Attorney General on appeal from the Marion Adjustment Center's denial of Mr. Joseph L. Silverburg's open records requests of January 26 and 27, 1997.
On January 26, 1997, Mr. Silverburg requested to inspect:
(1) All maintenance records pertinent to Saint Mary, housing unit concerning improvement, renovation and revamping, since the purchase of the Marion Adjustment Center.
(2) Maintenance records pertinent improvement made prior, to housing inmates at Marion Adjustment Center.
(3) All records pertinent to funds appropriated to MAC for improvement of housing/buildings conditions, and copies of all receipt of work performed/done on housing/building units pertinent to Appropriate Funds.
(4) A copy of purchasing price of Marion Adjustment Center, current value of MAC, based upon improvement, since purchasing of MAC.
(5) Copy of last insect and rodents extermination.
(6) Copies of all work perform/done on boiler/heating system and all efforts made to improve heating systems, INCLUDING WHETHER inmates are provided with extra blankets during winter months.
(7) Copies of all improvement made on improving ventilation system during summer months.
(8) Copies of all improvement made on Inmate's Law/Gym housing unit.
(9) Copies of all improvement made on Chaplin/Academical unit.
(10) Copies of all improvements made on known HAZARDOUS conditions/material at the Marion Adjustment Center, including ASBESTOS.
On January 26, 1997, in a separate request, Mr. Silverburg asked for the name and address of the President of U. S. C. C. and the business address of U. S. C. C.
On January 27, 1997, Mr. Silverburg requested copies of all findings and reports made by Mr. Milton Thompson, President of U. S. C. C., on his January 27, 1997 inspection and tour of the Marion Adjustment Center.
By letter dated January 28, 1997, Mr. R. Allen McCartney, Esq., responded to Mr. Silverburg's three open records requests.
In response to the January 26th request, which is the subject matter of this appeal, Mr. McCartney stated:
In reviewing your last request of January 26, 1997 requesting all maintenance records, improvements made to inmate housing, funds appropriated to Marion Adjustment Center, copies of the last insect and rodent extermination inspections, copies of work performed on the boiler or heating system, and all efforts to improve the heating system, and copies of any improvements made to the ventilation during summer months and copies of improvement documents made to other buildings, your request relative to these documents is denied based on KRS 61.872(6), based upon the determination of the Official Records Custodian, Mr. Michael Huff, Warden, Marion Adjustment Center, since by your very request there appears to be an intention to disrupt the essential functions of Marion Adjustment Center by making such broad requests for information.
Your request would entail the resurrection of records, some of which may be over twelve years old and, therefore, is overly burdensome and costly to the institution.
Additionally, your request is vague and imprecise as to what specific record you are requesting. Therefore, all such requests pursuant to the third request to inspection public records of January 26, 1997 are therefore denied.
If you wish to more specifically define the records which you seek, please do so in a separate request for inspection of public records, which I shall review.
In response to the other January 26th request for the name and address of the President of U. S. Corrections Corporation, Mr. Silverburg was provided with that information.
In response to his January 27th request, Mr. Silverburg was informed that no reports or findings were made by Mr. Milton Thompson on January 27, 1997 and no written record of his tour of the Marion Adjustment Center was made.
We are asked to determine whether the response of the Marion Adjustment Center relative to the request for maintenance records and improvements made to inmate housing, etc., was in accord with the Open Records Act. For the reasons which follow, we conclude that the response was consistent in part and inconsistent in part with the Act.
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.
This provision is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151. We have also recognized, however, that:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
From the information provided, we cannot conclude that the agency's summary response that Mr. Silverburg's requests demonstrate an intention to disrupt the essential functions of Marion Adjustment Center by making such broad requests for information,presents clear and convincing evidence to support such a finding and an exemption from disclosure under KRS 61.872(6). Mere invocation of the statute is not sufficient to meet this burden. 93-ORD-72.
Although Mr. Silverburg's request is broad and may cover a substantial period of time, it appears that at least some of the requested records could be provided without placing an unreasonable burden on the agency or disrupting its essential functions. Absent a more detailed explanation as to the nature of the records involved, the difficulty of producing them, and how the request disrupts essential functions of the agency, the burden of proof required for invoking KRS 61.872(6) has not been met. However, future requests of a similar nature might be properly denied pursuant to 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 or would disrupt the essential functions of the agency. See OAG 90-112.
Accordingly, those requested records that can be readily identified from Mr. Silverburg's request, which are not otherwise exempt under a relevant provision of KRS 61.878(1), should be made available for his inspection by providing him with copies of those records, upon prepayment of copying charges. If an exemption is claimed for any records, a brief explanation as to how the cited exemption applies to the records withheld should be provided.
By the same token, we concur in part with Mr. McCartney's view that portions of Mr. Silverburg's request were vague, imprecise, and searching through old records, some of which may be over twelve years old, could be burdensome and costly. We have previously held that [b]lanket requests for information on a particular subject without specifying certain documents need not be honored. 95-ORD-27.
In 94-ORD-12, this office articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the free and open examination of public records. KRS 61.871. 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 or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the 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 documents.
As a precondition to inspection, Mr. Silverburg must identify with reasonable particularity those documents which he wishes to review. OAG 91-58.
Moreover, some of Mr. Silverburg's requests appear to be for information rather than for records. This office has consistently recognized that the Open Records Act is not intended to serve as a means of commanding compilation and production of specific information, but is instead intended to provide for inspection of reasonably described records held by public agencies. OAG 92-91.
Accordingly, Mr. Silverburg may wish to resubmit his request and attempt to refine and narrow the scope of his blanket requests for records by describing with reasonable particularity those records he wants to inspect.
Finally, Mr. Silverburg, in his letter of appeal, indicates that he and another inmate have filed a 42 U. S. C. §1983 complaint against prison officials regarding the living conditions at the Marion Adjustment Center.
He states that the denial of his request on the basis that it was an attempt to disrupt essential functions of the Center was an effort by the agency to impair, thwart, or defeat his §1983 Civil Rights Complaint. In this regard, we note that the agency, in its response, did not deny the records on the basis of the presence of litigation. However, we offer the following regarding the Open Records Act and the presence of litigation.
This office has acknowledged that the Act should not be used by parties to litigation as a substitute for discovery. 96-ORD-138. We have also recognized that the Act in no way supersedes a protective order, or other court ordered seal of confidentiality, when a public agency is properly before a court as a party to litigation. 94-ORD-19. Unless materials pertaining to the litigation have been sealed or placed under a protective order, an agency's statutory duties under the Open Records Act are not affected by the presence of the litigation.
Recognizing this fact, this office, in OAG 89-65, cautioned:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
In summary, the Marion Adjustment Center should provide Mr. Silverburg with copies of records which can be readily identified from his request, upon prepayment of copying charges. If an exemption is claimed for any records, a brief explanation as to how the cited exemption applies to the records withheld should be provided. If additional records are sought, Mr. Silverburg should resubmit his request, describing the records he seeks with sufficient specificity to enable the agency to locate them and make them available. Absent such a reasonable description, an agency is not required to conduct a search for blanket requests for information on a particular subject.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
A. B. Chandler III
James M. Ringo
Assistant Attorney General
Joseph L. Silverburg #79435
Marion Adjustment Center
P. O. Box 10
Saint Mary KY 40063-0010
R. Allen McCartney
Attorney at Law
2500 Seventh Street Road
Louisville KY 40208-1029
Marion Adjustment Center
P. O. Box 10
Saint Mary KY 40063-0010