NOT TO BE PUBLISHED

96-ORD-69

March 29, 1996

In re: Charles E. Christian/Fayette County Board of Education

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Fayette County Board of Education's partial denial of Mr. Charles E. Christian's open records request to inspect certain of the Board's records.

By letter dated February 15, 1996, Mr. Christian requested to inspect the following records:

1. With respect to businesses owned by sole proprietors, all Questionnaires and Initial Reporting for an Occupational License Tax Account for Schools filed with the Fayette County Public Schools and containing the following information:

a. The name of the business owned by the sole proprietor.

b. The address and telephone number of the principal place of business in Fayette County, Kentucky.

c. The name of the person executing the Questionnaire.

d. The home address or mailing address for forms if such address is outside of Fayette County, Kentucky.

2. Those public records which disclose:

a. Names of businesses owned by sole proprietors who are delinquent in payment of the occupational license tax for schools.

b. The address and telephone number of the principal place of business in Fayette County, Kentucky of the businesses described in 2a, above.

3. The audited financial statements of the Fayette County Public Schools for its last two fiscal years.

4. The workpapers of the certified public accountant for the audits relating to the reporting of loss contingencies (as defined by Statement of Financial Accounting Standards No. 5) with respect to the audited financial statements requested in 3 above.

By letter dated February 21, 1996, Ms. Teresa T. Combs, General Counsel to the Board of Education of Fayette County, denied portions of Mr. Christian's request, stating:

This is in response to your open records request received on February 15, 1996.

1.a., b. and c. -- Information with respect to occupational license tax accounts is not kept in such a way that we can identify the records of sole proprietors as opposed to other records without manually going through the files.

1.d. -- Even if the information were kept in such a fashion that we could identify sole proprietors, home addresses would not be released as they are exempted under KRS 61.878(1)(a) as records containing information of a personal nature where public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

2.a. and b. -- The records are not kept in such a fashion that there is a list of sole proprietors who are delinquent in payment of occupational license tax.

Additionally, as to the information requested in 1 and 2, occupational license tax files are kept in individual folders and exceed 50,000 in number and contain information of a personal nature which is exempted from open records under KRS 61.878(1)(i). We deny this request as it would be unreasonably burdensome and time consuming for an employee of the district to manually go through all of these files in order to report this information and/or to redact the personal information in the records. This would disrupt the other essential functions of the school district.

3. -- These are enclosed.

4. -- The work papers of the CPA are not provided, as they are preliminary documents that belong to the CPA and not to the school district and were not incorporated into final audit reports presented to the Board of Education. Even if they did belong to the school district, they are preliminary documents that are exempted from inspection under KRS 61.878(1)(i) and (j).

By letter dated February 23, 1996, Mr. Christian responded to Ms. Combs's partial denial, stating in relevant part:

Please confirm that the workpapers of the certified public accountant requested are not in the possession of the Board of Education. If they are not in the Board's possession, then our request for inspection is withdrawn. If they are in the Board's possession, it is our opinion that they are not preliminary documents exempted from inspection under KRS 61.878(1)(i) and (j). OAG 76-204 provides that auditor's workpapers are “public records” under the Open Records Act which do not fall within any of the exceptions for inspection.

It appears you denied the paragraph 1 and 2 inspection requests for the reason that they were intended to disrupt the other essential functions of the school district. We disagree with this conclusion. KRS 61.872(6) provides that a request for inspection of public records may be refused if it places an unreasonable burden in producing public records or if there is reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. We have not made repeated requests for inspection under the Open Records Act, and our February 15, 1996 request was not made for the purpose of disrupting other essential functions of the Fayette County Public Schools.

Also, you denied the paragraph 1 and 2 inspection requests because you believe they place an unreasonable burden on the school district to produce such records. It is our opinion that there is not clear and convincing evidence that our requests, as modified as set forth below, place an unreasonable burden on the school district. We will ask the Attorney General to review your denial of our requests as provided by KRS 61.880 if they continue to be denied.

In response to our paragraph 2 request, you stated that the records are not kept in such a fashion which lists sole proprietors who are delinquent in payment of the occupational license tax. This response implies that there are records for, or a list of, individuals and businesses (“taxpayers”) who are considered delinquent in payment of the occupational license tax. Accordingly, our request is modified to inspect all such records for, or receive a complete list of, such taxpayers, including the names of the persons who are the representatives of such taxpayers, if available.

With respect to our paragraph 1 request, you stated that the occupational license tax files were kept in individual folders, exceed 50,000 in number and contain information of a personal nature which is exempted from open records under KRS 61.878(1)(i). We withdraw the portion of the request which seeks the home addresses. To the extent you claim our request is unreasonably burdensome based solely on the volume of the records, our request is modified for only those questionnaires for occupational license tax accounts which were active for the years 1991 and 1995.

Although you stated that our narrow request to inspect the records of sole proprietors, as opposed to all other records, cannot be determined without manually going through the files, it is our assumption that the number of sole proprietors compared to all other types of taxpayers is minimal. Sole proprietors should be easily identifiable because this information has been specifically requested of the person filing the questionnaire with the Fayette County Public Schools. Further, sole proprietors can be identified by the Fayette County Public Schools from the Fayette County Public Schools Net Profits Occupational License Tax Return from two different places. Such return asks the taxpayer to indicate the method of ownership of the business and asks sole proprietors to indicate they have attached to the return their Form 740, Schedule C.

The Lexington-Fayette Urban County Government assists the Fayette County Public Schools with the administration of the questionnaires we have requested to inspect and with the Fayette County Public Schools Net Profits Occupational License Tax Returns. I suggest that perhaps LFUCG has the records which we have requested to inspect in a form from which the requested information could be more easily compiled.

The Attorney General has issued several opinions concerning denials of requests to inspect public records pertaining to occupational license taxes, including requests to inspect questionnaires containing information of a nature comparable to our request. See, e.g., OAG 85-1, OAG 84-93. These opinions state that inspection requests for such records should be permitted under the Open Records Act and support our modified requests. We believe we have identified with “reasonable particularity” a limited number of public records to inspect or receive a compiled list of information therefrom. Further, we are of the opinion that you have not described with any degree of specificity (i) the volume of the questionnaires for sole proprietors which we wish to inspect, (ii) the difficulty in accessing such questionnaires, or (iii) once accessed, the difficulty in redacting confidential information from such questionnaires.

I point out that the Fayette County Public Schools received almost $77,000,000 in tax receipts from local sources during its fiscal year ending June 30, 1995, a significant portion of which consisted of the occupational license tax. Efficient record and information storage and retrieval systems would seem to be a necessity in order to adequately administer these taxes.

By letter dated February 29, 1996, Ms. Combs responded to Mr. Christian's February 23, 1996 letter, stating in pertinent part:

I have confirmed with Duane Arbegust, Director of Financial Services, that the work papers of the CPA are not in our possession. I understand your request for inspection of those work papers is withdrawn due to that fact.

I did not mean to infer that you intended to disrupt the essential functions but that merely that to comply with your request would disrupt the functions of the school district. However, as stated in my response to your open records request, for us to manually go through 50,000 folders to determine which of those are sole proprietors is an unreasonable burden on the school district. We did not give you access to come in and look at those folders, as they contain both exempt and non-exempt information, and we would have to redact the personal information that is exempted under KRS 61.878(1)(a) from the non-exempt before we could let you look at the records.

As your contention that we have not produced clear and convincing evidence that your requests one and two that relate to sole proprietor information would not be an unreasonable burden upon the school district, we have no way of identifying individual sole proprietors without going through each individual file folder. We believe that the fact that we would have to manually go through 50,000 file folders and redact private information is clear and convincing evidence that this is an unreasonable burden upon the school district.

As to the modification of your request to inspect lists of delinquent taxpayers, there is no such list, nor can we determine the total delinquent accounts without auditing those 50,000 accounts. We have files of numerous collection letters based upon random “audits” but many of these contain private information that would have to be redacted under KRS 61.878(1)(a). I will provide an estimate of the number of those letters and tell you tomorrow whether we deny your request for inspection of those documents.

As to your request for only the questionnaires for occupational license tax accounts, we deny this request based upon KRS 61.878(1)(a), as they contain personal information which is exempt from disclosure. We would have to manually go through 50,000 file folders and redact this information before releasing it to you, and we deny your request based upon the fact that it would be unreasonably burdensome as set out in KRS 61.872(6). Also, we would have no way of knowing which of the occupational license tax accounts were active for the years 1991 through 1995 without manually going through each of the file folders.

You state that sole proprietors are easily identifiable but you seem to be missing the point. As I explained to you in the first letter, we cannot identify which of our 50,000 file folders pertain to sole proprietors without manually going through each file folder. We deny your request for us to do this based upon the fact that it is an unreasonable request as set out in KRS 61.872(6).

You seem to have missed the point of my February 21, 1996, letter to you. You state that you have modified your request limiting the number of public records. However, the whole point of our denial is that in order for us to identify the sole proprietors for you, we would have to manually go through 50,000 file folders and redact the private information. We believe this explanation is sufficient to meet the burden of proof that this is clearly an unreasonable request and would take resources away from the business of the school district which, though you might not intend it to be disruptive, would disrupt the other essential functions of the school district.

In his letter of appeal to this office, Mr. Christian reviewed the denial of his open records request and states in part:

The Board's reliance on the need to redact personal information from the requested records under the authority of KRS 61.878(1)(a) is unfounded. The exemptions to the requirement for the mandatory disclosure of public records provided by such statute are not mandatory, only permissive.

The Board's unreasonable burden claim seems to be self-invented. If upheld, such a claim could be used to deny a request for just one occupational license tax public record if the 50,000 file folders would have to be searched manually. Upholding such a claim would defeat the purpose of the Open Records Act.

Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, this office received a response from Ms. Combs, on behalf of the Board of Education, regarding the issues raised in Mr. Christian's letter of appeal.

In her response, Ms. Combs states:

In the recent case of Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1995) (discretionary review denied), the Kentucky courts recognized that a public agency had acted properly in refusing to produce records containing private information. In that case, the court weighed the public's interest in disclosure under the open records act, calling it negligible, against individuals' privacy interest in such things as their home addresses, telephone number, social security numbers, wage rate, marital status, number of dependents, etc., and found that the privacy interest outweighs the public's interest in securing information. Our occupational license tax files contain the information set out in Exhibit A (a list from our tax office), which is private information. You will note it is not just private information of the employers but also of the employer's employees. As you can see, even the questionnaire contains home addresses, home telephone numbers, and social security numbers. The Zink case held that disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Mr. Christian seems to rely upon the fact that he states that it is permissive under the open records act and not mandatory that we not disclose private information. Mr. Christian misses the point that the reason the open records act exempts disclosure of records that would constitute a clearly unwarranted invasion of personal privacy is because the individuals whose privacy is invaded could take action against the public agency for releasing the clearly private information. The Zink case tracks a line of cases that state that personal information should be redacted from public documents before they are released. In fact, Mr. Christian appears to recognize the significance of the personal privacy information exemption. In his February 23, 1996, follow-up letter (copy attached as Exhibit B), he withdrew the portion of his request that seeks the home addresses.

Mr. Christian's statement that the Board's unreasonable burden claim is self-invented is ludicrous. He purposefully wishes to miss the point, even though I explained it to him in detail in the February 21, 1996, denial letter and in the February 29, 1996, follow-up letter (coy attached as Exhibit C) which was a response to his February 23, 1996, letter (Exhibit B). I also personally spoke with Mr. Christian on the telephone and explained all of this to him. It would require having staff go through 50,000 folders to identify sole proprietors and redact private information, which is the request he made of us, as we do not keep sole proprietor files separate from the others. I shared with Mr. Christian in a telephone conversation on March 1, 1996, that I had been told the Lexington-Fayette Urban County Government had begun keeping the identity of sole proprietors in list format, and he could get that list from them. Yet, he insists that he needs to go through our 50,000 folders and that the privacy interest of the individuals and the personal information in those folders is of no importance.

I also told Mr. Christian that if he could pinpoint for me the information he was looking for, we might be able to come up with another way to help him. He refused to share with me the specific information he is looking for and why he is looking for it. While I understand that he is not required to share that information with us under the terms of the open records law, my point is that we have gone to great lengths to try to determine how we can give information to Mr. Christian without placing an unreasonable burden upon the resources of the school district to redact information in 50,000 folders or violating privacy rights of thousands of individuals.

You will note that Mr. Christian's original request letter dated February 15, 1996, wants information as to sole proprietors. As I have shared with him that it would be an unreasonable burden upon the school system to redact personal information from the 50,000 folders to give him access to them and told him that I believe he could get this information in list form from the Urban County Government (although I did tell him that it was my understanding that the Urban County Government had only recently been keeping the information in this format), he insists that we should give him carte blanche to go through 50,000 folders that contain all sorts of personal information, such as social security numbers, home addresses, tax liability, income and withholdings, and federal identification numbers. To redact the information in these files would clearly be unreasonable for the school system and to allow Mr. Christian to go through the folders that contain personal information would be a clearly unwarranted invasion of the individuals' right to privacy.

We are asked to determine if the Fayette County Board of Education violated provisions of the Open Records Act in its partial denial of Mr. Christian's request. For the reasons set forth below, and upon the authorities cited, we conclude that the

Board's response was consistent with provisions of the Open Records Act.

In his initial and subsequently modified requests, Mr. Christian asked to inspect Board records which contained information pertaining to businesses owned by sole proprietors and those records which showed the names and addresses of businesses of sole proprietors who are delinquent in payment of the occupational license tax for schools.

Mr. Christian's request for information with respect to occupational license accounts was denied for three reasons: 1.) occupational license account records were not maintained in such a fashion that the Board could identify the records of sole proprietors as opposed to other records without manually going through the files; 2.) the occupational license tax files are kept in individual folders and exceed 50,000 in number and contain information of a personal nature which is exempt from disclosure under KRS 61.878(1)(a); 3.) for Board employees to either (a) manually go through over 50,000 folders to determine which contain the sole proprietor records or (b) to go through the records, which contain exempt and non-exempt information, to redact the confidential information so that Mr. Christian could

inspect the folders himself would place an unreasonable burden upon the Board as set out in KRS 61.872(6).

Mr. Christian's modified request for a list of all individuals and businesses who are delinquent in payment of the occupational license tax was denied because the Board's records did not contain such a list and the records were not kept in a fashion so that all delinquent accounts could be determined without doing an independent audit of each of the 50,000 folders and a search to identify such records would constitute an unreasonable burden on the agency for the same reasons cited above in reference to determining the occupational license records of sole proprietor records, citing KRS 61.878(1)(a) and KRS 61.872(6).

The question presented here is whether the Fayette County School Board sustained its burden of proving, by clear and convincing evidence, that compliance with Mr. Christian's request would constitute an unreasonable burden on the public agency.

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.

Determining when an open records request 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. OAG 90-112. For the reasons which follow, it is the conclusion that the Fayette County Board of Education sustained its burden of proof by showing with clear and convincing evidence that compliance with Mr. Christian's request would impose an unreasonable burden upon the agency.

In OAG 89-79 we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.

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.

In the instant situation, Mr. Christian described the records with sufficient clarity to enable the agency to determine the records which he was seeking to inspect. However, the Board's records were not maintained in such a fashion that either a list was kept or that they could be readily identified and located. In this regard, this office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored. 93-ORD-7. Moreover, under the Open Records Act, a person does not have a right to require a list to be made from public records if the list does not already exist. 94-ORD-138. Thus, to the extent the Board did not maintain a list of individuals or businesses delinquent in the payment of the occupational license tax, its response so stating was consistent with the Open Records Act.

We also conclude that the Board properly invoked KRS 61.878(1)(a) in denying Mr. Christian's request to inspect the occupational license tax files without redaction as they contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Ms. Combs indicated the files contained information such as home addresses, home telephone numbers, and social security numbers. The Courts and this office have recognized that disclosure of this information would constitute an unwarranted invasion of personal privacy. Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1995); 96-ORD-51.

We further conclude that the Board met its burden of proof by establishing with clear and convincing evidence that to comply with Mr. Christian's request would place an unreasonable burden on the agency. First, the Board established that its employees would have to manually go through over 50,000 file folders to identify the records of sole proprietors as opposed to other records because the records were not maintained in such a fashion that sole proprietor records could be individually identified. Even if the number of sole proprietors was small, the number could not be determined until a search of the entire files was made. Secondly, the Board established that it could not give Mr. Christian access to conduct the search himself as the over 50,000 files each contained both exempt and non-exempt information and it would have to redact the personal information exempted under KRS 61.878(1)(a).

Where a request for records involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable informaton, we believe, constitutes an unreasonable burden upon an agency within the meaning of KRS 61.872(6). See OAG 90-24.

It is our opinion that the Board properly relied on KRS 61.872(6) in denying Mr. Christian's requests since they implicate an enormous number of documents containing both exempt and nonexempt information such that to require a manual search and a redaction of personal information would place an unreasonable burden upon the resources of the Board.

Ms. Combs has expressed a willingness to assist Mr. Christian in accessing the information he is seeking if he could pinpoint the specific information for which he is looking. She states that the Board has gone through great lengths to determine how the information can be provided to Mr. Christian without placing an unreasonable burden upon the school district to redact information in 50,000 folders or violating privacy rights of thousands of individuals. We urge the parties to work in a spirit of cooperation toward identfying and locating the records Mr. Christian seeks to inspect.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/224

Distributed to:

Teresa T. Combs

General Counsel

Board of Education of Fayette County

701 East Main Street

Lexington KY 40502-1699

Charles E. Christian

Landrum & Shouse

106 West Vine Street

P. O. Box 951

Lexington KY 40588-0951