NOT TO BE PUBLISHED
96-ORD-193
September 12, 1996
In re: John E. Reneer/Eastern Kentucky Correctional Complex
Open Records Decision
This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex's responses to three separate requests for public records submitted by John E. Reneer, an inmate in the correctional facility. Because the transactions giving rise to Mr. Reneer's appeals raise common questions of law, they are consolidated for purposes of administrative adjudication. These transactions are summarized below:
• July 17, 1996 - Mr. Reneer submits a request to inspect public records to Michelle Nickell, open records request coordinator at EKCC. Those records were identified as:
The total inventory of non-expendable property items, including all machines, equipment, instruments and apparatuses with serial numbers, and all items having an original cost or replacement value of $100.00 or more, with a useful life exceeding one year, that have been purchased by or for use in the EKCC Vocational Program, or donated to that program, or transferred to that program, from the first day of the existence of that program thru the date of the response made hereto, to include all inventory reports reflecting the existence, loss, and/or disposition of all such inventory.
On July 24, John Barnes, who is apparently an employee at EKCC, responded to Mr. Reneer's request, advising him, “Reference KRS 61.872 Section 6.” Mr. Barnes offered no further explanation.
• July 20, 1996 - Mr. Reneer submits another request to inspect public records to Michelle Nickell. Those records were identified as:
The record(s) reflecting the items of tools and/or equipment purchased for the vocational program with the $6,300.00 provided by federal funds for that purpose during the 1995-96 Fiscal Year.
On July 24, 1996, Mr. Barnes again responded on behalf of EKCC, advising Mr. Reneer to “[r]efer to KRS 61.872 Section 6.” Mr. Barnes's response was not accompanied by any explanation.
• July 17, 1996 - Mr. Reneer submits a third request for public records to Michelle Nickell. Those records are identified as:
The record reflecting the signature of any Corrections employee accepting responsibility for any, all or any part of the non-expendable property items, including all machines, equipment, instruments and apparatuses with serial numbers, and all items having an original cost or replacement value of $100.00 or more, with a useful life exceeding one year, that have been purchased by or for use in the EKCC Vocational Program, or donated to that program, or transferred to that program, from the first day of the existence of that program thru the date of the response made hereto. (Please see EKCC 02-08-03).
On July 24, Mr. Barnes issues a third response to Mr. Reneer, the full text of which reads as follows, “Reference KRS 61.872 Section 6.”
It is from this series of open records requests and responses that Mr. Reneer appeals.
We are asked to determine if Eastern Kentucky Correctional Complex violated provisions of the Open Records Act in responding to Mr. Reneer's requests to inspect public records, and in particular, KRS 61.872(6), by failing to establish by clear and convincing evidence that his applications for inspection placed an unreasonable burden on the facility in producing public records, or were intended to disrupt its essential functions. For the reasons set forth below, and upon the authorities cited, we conclude that EKCC did in fact so violate the Act.
In 92-ORD-1365, at pages 6 and 7, this office addressed a similar issue. There, we observed:
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 61.882(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. 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.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
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. . . .
Thus, 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 subject 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 located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
(Emphasis added.)
As in 92-ORD-1365, Mr. Barnes does not describe with any degree of specificity the volume of records implicated by Mr. Reneer's request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. [1]
His denial consists of nothing more than a bare reference to the statute. We therefore conclude that EKCC failed to sustain its burden of proving, by clear and convincing evidence, that Mr. Reneer's applications for inspection of public records are unreasonably burdensome or are intended to disrupt its essential services. EKCC is therefore directed to immediately arrange for Mr. Reneer to inspect all nonexempt records, or portions of records, identified in his requests by providing him with copies of those records, upon prepayment of reasonable copying charges, or by on-site inspection.
Nevertheless, this office has 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 determining whether a series of open records requests is unreasonably burdensome, or is intended to disrupt an agency's 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. Ultimately, of course, the burden of proof rests with the agency.
Thus, it is possible that EKCC could build a successful case that Mr. Reneer's requests have become unreasonably burdensome. We are aware of at least six open records appeals, many of them multi-issue appeals, submitted to this office between August 5 and September 5 of this year. If past experience is any indication, this no doubt represents the proverbial tip of the iceberg relative to the total number of open records requests submitted. Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case.
EKCC was afforded three opportunities to build such a case: First, in its initial denial of Mr. Reneer's requests; second, in response to Mr. Reneer's follow-up inquiries relative to its position; and third, in response to this office's notification of receipt of open records appeal, which was issued on August 19, 1996, and which clearly states that the agency “may respond to this appeal.” 40 KAR 1:030 Section 2. [2] We suggest that EKCC bear these observations in mind in responding to future requests, especially repeated requests made by a single inmate.
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 L. Bensenhaver
Assistant Attorney General
974, 975, 976
Distributed to:
John E. Reneer #26055
Eastern Kentucky Correctional Complex
P. O. Box 636 Dorm 2
West Liberty KY 41472
Michelle Nickell
Official Records Custodian
Eastern Kentucky Correctional Complex
P. O. Box 636
West Liberty KY 41472
Tamela Biggs
Staff Attorney
Office of Legal Counsel
Department of Corrections
State Office Building
Frankfort KY 40601
[1] In 95-ORD-61, at page 5, this office recognized that there is no clear standard of proof under the Open Records Act with the exception of that found in KRS 61.872(6). The inclusion of this high standard of proof suggests that the legislature was determined to avoid abuse of this particular provision.
[2] We remind EKCC, and all other public agencies, that a 40 KAR 1:030 Section 2 response should be viewed as an opportunity to supplement, and not to supplant, its original denial. The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself, and this office will only consider those supplemental responses which correct misstatements or misunderstandings which appear in, or arise from, the complainant's letter of appeal, or which offer additional support for the agency's original denial.