NOT TO BE PUBLISHED
96-ORD-42
February 22, 1996
In re: Lee A. Jackson/Workforce Development Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Workforce Development Cabinet's denial of Lee A. Jackson's September 18, 1995, request for copies of records identified as:
1. The Nature of Actions Listings on all promotions in
the Department For Employment Services with an
effective date of 07-01-94 through 06-30-95.
2. [T]he P-1 (Request for Personnel-Position Action)
on all promotions in the Department for Employment
Services with an effective date of 07-01-94 through
06-30-95.
In a letter dated September 22, 1995, Timothy A. Sturgill, staff attorney, denied Mr. Jackson's request. With respect to request one, Mr. Sturgill advised:
I have discussed your request with Dwayne T. Gatewood, Director of the Division of Personnel Services, and we do not understand what you mean by `Nature of Actions Listings.' Therefore, this portion of your request must be denied at this time.
Mr. Sturgill offered to reevaluate Mr. Jackson's request if he would clarify that request. In response, Mr. Jackson submitted a modified request for “any report or document which contains a listing of the individuals advanced in the Department for Employment services with an effective date of 07-01-94 through 06-30-95.” Mr. Sturgill denied the existence of such a list in a letter dated October 2, 1995.
The Cabinet also denied Mr. Jackson's request for the P-1's reflecting all promotions in the Department for Employment Services between July 1, 1994, and June 30, 1995. He explained:
The Workforce Development Cabinet does not have a list of DES employee's [sic] who received promotions during this period. The only manner in which the Cabinet could determine which DES employees received promotions during the time in question is to physically examine the 1,167 personnel files transferred to the Cabinet from the Cabinet for Human Resources (`CHR') at the time of the reorganization. The Division of Personnel Services (`the Division') estimates that it would take an average of fifteen (15) minutes to examine each personnel file. It would take staff of the Division, with an average salary of $16.49 per hour, 291.75 hours to determine which employees received promotions. It is estimated that it would cost $4,810.96 just to make this initial step to comply with your request.
After the individuals who received promotions during the time covered by your request are identified, the Division would have to remove the P-1's from their files; copy the P-1's, redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 back into the personnel file; and copy the redacted P-1's for your inspection. The Division estimates that it would take an average of fifteen (15) additional minutes to complete these procedures for each employee who received a promotion.
KRS 61.872(6) allows an agency to refuse to permit the inspection of public records if the application places an unreasonable burden in producing such records upon the agency. As clearly demonstrated above, compliance with your request for copies of the P-1's on all promotions in DES between July 1, 1994 and June 30, 1995, would place an undue burden on the Agency. Accordingly, the Cabinet refuses to permit inspection of these records pursuant to KRS 61.872(6).
In closing, Mr. Sturgill noted that the Cabinet does not have custody of personnel files of individuals who were not employed by DES on July 1, 1995. Therefore, if a DES employee was promoted between July 1, 1994, and June 30, 1995, but retired on or before June 30, 1995, his or her personnel file would not be in DES's custody. [1]
In a follow-up letter to this office, Mr. Sturgill explained that the fifteen minute estimate was provided by the Division of Personnel Services, and “includes the time necessary for staff of the Division to remove each personnel file from its storage location, review each P-1 contained in the file to determine if it represents a promotion during the stated period, and replace the file in its proper location.” Continuing, he observed:
[O]ne cannot assume . . . that the P-1's are in chronological order or that a P-1 for a promotion during this period would be the most recent P-1 in an individual's file. In fact, all DES employees have at least one P-1 in their file with an effective date after June 30, 1995, the P-1 relating to the reorganization which transferred DES from the Cabinet for Human Resources to the Workforce Development Cabinet.
Acknowledging that “[t]he actions described above may not take the estimated fifteen minutes in each instance,” Mr. Sturgill nevertheless maintained that “such action in addition to the other steps necessary to comply with Mr. Jackson's request would clearly constitute an undue burden upon the agency.” In closing, Mr. Sturgill again offered to reevaluate Mr. Jackson's request “if he can provide a list of individuals who were promoted during the period in question.”
This appeal raises two separate issues under the Kentucky Open Records Act, the first easily resolved, the second far more difficult. We are asked to determine if the Workforce Development Cabinet properly denied Mr. Jackson's request for a list of individuals advanced in the Department for Employment Services between July 1, 1994, and June 30, 1995. The answer to this question is an unequivocal yes. The Cabinet denies the existence of any such list, and is in no way obligated to create a document to satisfy Mr. Jackson's first request. We are also asked to determine if the Cabinet met the clear and convincing standard of proof which the Act requires public agencies to meet when they invoke KRS 61.872(6). It is the opinion of this office that the Cabinet has adduced sufficient proof to support its claim that Mr. Jackson's request is unreasonably burdensome. Bearing in mind that public employees “are servants of the people, . . . but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time,” we conclude that unless he can somehow narrow his request, or identify the individuals promoted during the period in question, Mr. Jackson's request need not be honored. OAG 76-375, p. 4.
As noted, the Cabinet properly denied Mr. Jackson's request for a list of persons promoted at DES in the one year period between July 1, 1994, and June 30, 1995. Even after Mr. Jackson clarified his request, the Cabinet was unable to produce a document which satisfied that request. Simply stated, there is no DES promotion list for the specified period in the Cabinet's custody, and it is not obligated to create one. In an early opinion, this office recognized that it is not necessary for an agency to make a list of items from its records if such a list does not already exist. OAG 76-375. Hence, “one does not have a right under Open Records provisions to require that a particular list be made.” OAG 89-61, p. 4. These opinions are premised on the notion that:
Public agencies . . . are neither required nor directed by open records provisions to devote the taxpayer's time to reviewing voluminous records in order to compile information to satisfy a particular information request. The legislature has recognized this by providing only that records must be made available for inspection, not that information must be extracted and compiled.
OAG 88-79, p. 3. Accordingly, we find that the Cabinet properly denied that portion of Mr. Jackson's request in which he asked for a nonexistent list.
Whether the Cabinet's response to the second part of Mr. Jackson's request was proper is a closer question. In analyzing the propriety of a public agency's invocation of KRS 61.872(6), this office has observed:
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 . . . . However, it is stressed that this office has previously opined that a request to inspect `10,000 cases [is] certainly “voluminous,”' but not necessarily unreasonably burdensome.
OAG 90-112, p. 5, citing OAG 84-278, p. 2. With these principles in mind, we proceed to our analysis.
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.
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 request 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 in producing voluminous public records.
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 Office of Economic Development” and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). That 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.
In its letter of denial, the Cabinet indicates that because it does not maintain a list of DES employees who were promoted in fiscal year 1994-1995, its employees must physically inspect 1,167 personnel files to identify the relevant P-1's. The Cabinet estimates that “it would take an average of fifteen (15) minutes to examine each personnel file,” and that it would ultimately expend over 291 hours and $4,810.96 to comply with Mr. Jackson's request, not including additional time spent in redacting personal information which appears on the P-1's.
The P-1's of public employees are subject to public inspection. See, e.g., 93-ORD-15. Thus, Mr. Jackson has not made a demand on the Cabinet which, on its face, is beyond the scope of the Open Records Act. It is the breadth of that request which is problematic. The Cabinet estimates that its employees would be required to expend some 291 hours in order to satisfy Mr. Jackson's request, as that request is currently framed. This is, indeed, an inordinate amount of time for an public agency whose chief function is not the processing of open records requests. We are not inclined to substitute our judgment, relative to the time needed to satisfy Mr. Jackson's request, for that of the Cabinet, and therefore conclude that the Cabinet met the clear and convincing standard codified at KRS 61.872(6). We urge Mr. Jackson and the Cabinet to continue to work in the spirit of cooperation toward the ultimate goal of satisfying his request, albeit in a manner which will not impose an unreasonable burden on the Cabinet.
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/1400
Distributed to:
Hon. Timothy A. Sturgill
Office of General Counsel
Workforce Development Cabinet
Office of the Secretary
2nd Floor, Capital Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Lee A. Jackson
3632 A. Bold Bidder Drive
Lexington, Kentucky 40517
[1] The Department for Employment Services was transferred from the Cabinet for Human Resources to the Cabinet for Workforce Development on July 1, 1995. According to Mr. Sturgill, records of individuals not employed by DES on July 1, 1995, remained in CHR's custody.