NOT TO BE PUBLISHED 

94-ORD-46

March 25, 1994

In Re: Thomas A. Wietholter, Esq./Northern Kentucky University

OPEN RECORDS DECISION

This appeal comes to the Attorney General in connection with the attempt of Thomas A. Wietholter, Esq., to secure copies of certain documents from Northern Kentucky University.

In a letter to Sheila Trice Bell, Esq., Legal Counsel for Northern Kentucky University, dated February 28, 1994, Mr. Wietholter made twelve requests for documents or groups of documents. The documents were described with specificity.

Ms. Bell responded to Mr. Wietholter in a letter dated March 4, 1994, and advised that pursuant to KRS 61.872(6) the University would not permit inspection of the records requested or mail copies of them. She said that Mr. Wietholter's repeated requests are intended to disrupt other essential University functions and are intended to be unreasonably burdensome.

While Ms. Bell set forth four numerical paragraphs of facts to support the University's position, two paragraphs directly relate to this appeal and are stated as follows:

94-ORD-46

University. To the extent that NKU has, in its possession, any of the Cold Spring-Crestview Fire Department documents which you have requested it will require a substantial search of NKU files in a number of offices to determine if they are in NKU's possession. This process would be very disruptive and unreasonably burdensome.

In his letter of appeal to the Attorney General, received March 14, 1994, Mr. Wietholter asks this office to review his requests and the University's response which he maintains is not in conformity with the statutory requirements. He takes exception to numerical paragraph one of Ms. Bell's response because, "In reviewing my records the requests in numbers 8 and 9 have not been previously made." He also takes exception to that sentence in numerical paragraph two of Ms. Bell's response that, "This process would be very disruptive and unreasonably burdensome."

KRS 61.880(2) and KRS 61.882(3) place the burden of proof in sustaining agency action in an open records appeal on the public agency. As stated in 94-ORD-35, copy enclosed, this office has consistently concluded that a public agency fails to satisfy its burden of proof when it merely invokes an exception to or reason for not providing the document for inspection without setting forth an adequate explanation of how it applies to the record withheld.

In this particular appeal the University said it had previously supplied three particular groups of documents requested in Mr. Wietholter's letter of request of February 28, 1994. Mr. Wietholter has stated that two groups of documents (those mentioned in numerical paragraphs 8 and 9 of his letter of request) were not previously requested.

Since there is no specific evidence that the documents requested in numerical paragraphs 8 and 9 of Mr. Wietholter's request letter have been previously asked for, and Mr. Wietholter and the University disagree on the matter, the University has not sustained the burden of proof imposed upon it. The University must now make available to Mr. Wietholter the documents requested in those paragraphs.

A public agency asserting that finding and making available the requested documents involves an unreasonable burden frequently has difficulty showing that such is actually the case by clear and convincing evidence.

94-ORD-46

KRS 61.872(6) states:

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 93-ORD-73, copy enclosed, we said in part:

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 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.

More than a mere allegation that the request is an unreasonable burden is necessary. In 93-ORD-73, at page four, we quoted with approval from an earlier opinion as follows:

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.

94-ORD-46

In both 93-ORD-73 and 92-ORD-1365, copies enclosed, we concluded that the public agencies failed to establish by clear and convincing evidence that the requests imposed upon them "an unreasonable burden." Such is the situation in this particular appeal and the prior decisions cited above are dispositive of the matter here.

Since the University has not established by clear and convincing evidence that the requests in question impose upon it an "unreasonable burden," the University is directed to release the documents requested in numerical paragraphs 3, 4, 5, 6, 7, 10, 11 and 12 of Mr. Wietholter's letter of February 28, 1994, to Ms. Bell.

Northern Kentucky University may challenge this decision by initiating an 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 he should not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 573-7600

sjj/324

Enclosures

Copies of this decision

have been mailed to:

Thomas A. Wietholter, Esq.

Campbell Towers

Suite 603-605

Fourth & York Streets

Newport, Kentucky 41071

Sheila Trice Bell, Esq.

University Legal Counsel

Northern Kentucky University

Nunn Drive

Highland Heights, Kentucky 41099-8131