NOT TO BE PUBLISHED

96-ORD-9

January 17, 1996

In re: Brent V. Caldwell/City of Williamstown

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the City of Williamstown's actions relative to two requests for records submitted by Brent V. Caldwell. On May 25, 1995, Mr. Caldwell requested access to “[a]ll payroll records, [a]ll bills that pertain to bushhogging [and] maintence [sic] bills for bushhogging (1994 [and] 1995).” In response, Mayor Robert Jones furnished Mr. Caldwell with records which Mr. Caldwell characterized as “some receipts that had some hours and dollar amounts on them.” He was not permitted to inspect “the books where this information was documented.”

On June 28, 1995, Mr. Caldwell again requested access to 1994 payroll records, and records pertaining to bushhogging and engineering. Mayor Jones responded in a letter dated July 11, 1995. He advised:

Regarding request dated 6/28/95 by Mr. Brent Caldwell.

Request denied on all information as it places unreasonable burden upon the agency and seems clearly intended to disrupt other essential functions of the agency.

Mayor Jones did not elaborate.

We are asked to determine if the City of Williamstown violated provisions of the Open Records Act in denying Mr. Caldwell's request. For the reasons set forth below, and upon the authorities cited, we conclude that the city's response constituted both a procedural and substantive violation of the Act.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must “include a statement of the specific exception authorizing the withholding of the record,” and briefly explain how the exception applies to the record withheld.

In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must “immediately so notify” the requester, and designate a place, time, and date for inspection “not to exceed” three days from receipt of the request, “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.” KRS 61.872(5).

It is the opinion of this office that the City of Williamstown's response was procedurally deficient. Thirteen days elapsed between the date of Mr. Caldwell's second request and the date of Mayor Jones's response. This exceeded the statutory deadline by nine working days. Assuming that the city could justify this delay, it was nevertheless obligated to “immediately” notify Mr. Caldwell, explain the reasons for the delay, and designate the place, time, and earliest date on which the records would be available for inspection. The city failed to notify Mr. Caldwell until July 11, when it denied his request. The city offered no explanation for the delay. To this extent, its response was deficient.

Moreover, in denying Mr. Caldwell's request, the city did not include a statement of the specific exception authorizing nondisclosure. Although Mayor Jones incorporated the language of KRS 61.872(6), he did not cite this provision or offer any explanation of how it applies to the records withheld. We urge the Mayor to review the cited provisions to insure that future responses conform to the Open Records Act.

The central issue in this appeal centers on KRS 61.872(6), and the question of whether Mr. Caldwell's repeated requests placed an unreasonable burden on the City of Williamstown and were filed for purposes of harassment. Resolution of this issue turns on an interpretation of that statute.

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. However, refusal under this section must be sustained by clear and convincing evidence.

(Emphasis added.)

In determining whether a series of open records requests places an unreasonable burden on a public agency, or is intended to disrupt its essential functions, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function. In OAG 77-151, at page 3, we opined:

Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. 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 that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.

However, we have also recognized 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.

OAG 76-375, p. 4. In weighing these interests we must bear in mind that the burden is on the public agency to demonstrate, by clear and convincing evidence, that the requests either place an unreasonable burden on the agency or that they are intended to disrupt other essential functions of the agency.

Only if the agency has adduced evidence which would warrant this office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for “all notes, letters, memos, and studies which might contain information about the exchange of information between the OED” and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). The agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.

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. Mr. Caldwell requested access to specific records, payroll records and records reflecting expenditures relative to bushhogging and engineering, for a discrete period of time, the year 1994. He therefore satisfied this precondition.

Although this office recognized in OAG 90-24 that “where a request for records is broad . . . and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential and releasable information [may] . . . constitute an unreasonable burden upon the agency within the meaning of KRS 61.872(5)[,]” we do not believe that Mr. Caldwell's request would impose such a burden on the City of Williamstown. See, e.g., OAG 91-7, p. 2, 3 (holding that a request for a broad range of records which described, with reasonable particularity, categories of nonexempt documents the person wished to inspect, must be honored). The city need only retrieve the specifically identified records and, at its election, redact any information of a purely personal nature, such as home address and phone number, and social security number.

Nor do we believe that Mr. Caldwell's requests to inspect records amount to harassment or show an intent to disrupt the city's essential functions. Mayor Jones does not allege that these requests were duplicative in nature, or in any sense frivolous. See, e.g., OAG 89-79, p. 5 (holding that “[t]he burden is on the public agency to demonstrate, by more than merely referring to fifteen requests, that those requests . . . are intended to disrupt other essential functions of the agency”). We must assume, in the absence of clear and convincing evidence to the contrary, that the instant request, as well as those that preceded it, were submitted in good faith, and reflect a commitment to monitoring the activities of the city, and not to disrupting its essential functions.

We therefore conclude that the burden imposed on the city in producing the records requested by Mr. Caldwell was not an unreasonable one, and that his request was not intended to disrupt the city's essential functions. Accordingly, the city must immediately make those records available to Mr. Caldwell. The city may, as noted, exercise its discretion in redacting personal information, not including employees' salaries, from payroll records pursuant to KRS 61.878(1)(a) and KRS 61.878(4). OAG 78-837; OAG 90-30. However, we know of no exemption authorizing partial or blanket nondisclosure of records reflecting expenditures relative to bushhogging and engineering. “Amounts paid from public coffers are perhaps uniquely of public concern.” OAG 90-30, p. 3. We believe that Mr. Caldwell is entitled to inspect records documenting exact amounts paid from public monies for specific items or services.

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

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

aps/1318

Distributed to:

Hon. Robert Jones

Mayor

City of Williamstown

400 North Main Street

P. O. Box 147

Williamstown, Kentucky 41097-0147

Brent V. Caldwell

32 Charlotte Heights

Williamstown, Kentucky 41097