NOT TO BE PUBLISHED

96-ORD-201

September 19, 1996

In re: Keith Noble/Kentucky Parole Board

Open Records Decision

This matter comes to the Attorney General on appeal from the Kentucky Parole Board's response to Keith Noble's August 8, 1996, request for the audiotape of his parole hearing held on March 13, 1996, at Eastern Kentucky Correctional Complex. Mr. Noble enclosed an authorization to withdraw $5.00 from his inmate account to cover the cost of duplication and mailing. On behalf of the Parole Board, Helen Howard-Hughes responded to Mr. Noble's request. She advised:

The Parole Hearing tapes are maintained, for a period of 6 months, in the Board Office located in Room 500, State Office Building, Frankfort, Kentucky and are available for inspection from 8:00 a.m. to 4:30 p.m. daily.

Inasmuch as requests for the Board to duplicate copies of hearings places an unreasonable burden on staff, the following rules have been established:

1) Requests to listen to and/or duplicate a tape must be made, in writing, at least three days prior to the inspection;

2) A suitable room and tape recorder will be available.

Inmates who obviously cannot come to the office may wish to have a friend or relative conduct such inspection.

It is from this response that Mr. Noble appeals.

We are asked to determine if the Kentucky Parole Board violated provisions of the Open Records Act in denying Mr. Noble's request. For the reasons set forth below, we conclude that the Board violated KRS 61.872(3)(a) and (b) by failing to recognize its duty to provide access to public records by sending copies through the mail, and KRS 61.872(6) by failing to establish by clear and convincing evidence that Mr. Noble's application for public records placed an unreasonable burden on the Board in producing public records, or was intended to disrupt its essential functions.

KRS 61.872(3) establishes guidelines for records access under the Open Records Act. That statute provides:

A person may inspect the public records:

(a) During the regular office hours of the public agency; or

(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

The statute thus contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. 95-ORD-52; 96-ORD-186. At least with respect to tapes of parole hearings, it would appear that the Board has adopted a policy which effectively denies access by the latter means. This policy, insofar as it directly contravenes KRS 61.872(3)(b), constitutes a violation of the Open Records Act. Regardless of the identity of the requester, if he resides or works in a county other than the county where the public records are located, can precisely describe the records he seeks, and those records are readily available within the agency, he must be afforded access to copies of the records, by mail, upon prepayment of copying and postage charges. Mr. Noble clearly satisfies each of these requirements, and is entitled to receive the tape of his parole hearing by mail.

Nor do we believe that the Parole Board has established, by clear and convincing evidence, that Mr. Noble's request is unreasonably burdensome within the contemplation of KRS 61.872(6). That statute 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.

In 92-ORD-1365, at page 6 and 7, the Attorney General analyzed this provision. It is instructive to quote from that decision:

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, Ms. Howard-Hughes does not describe with any degree of specificity the volume of records implicated by Mr. Noble's request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. Her denial consists of nothing more than a vague reference to the language of the statute. We therefore conclude that the Kentucky Parole Board failed to sustain its burden of proving, by clear and convincing evidence, that Mr. Noble's application for inspection of public records was unreasonably burdensome or was intended to disrupt its essential functions. The Board is therefore directed to immediately arrange for Mr. Noble to inspect the tape of his hearing by mailing him a copy, upon prepayment of reasonable copying charges.

Nevertheless, we remind the parties to this appeal 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 or a single request, 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.

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

1006

Distributed to:

Keith Noble #111136

Eastern Kentucky Correctional Complex

P. O. Box 636, Dorm 1

West Liberty KY 41472

Helen Howard-Hughes

Kentucky Parole Board

Fifth Floor

State Office Building

Frankfort KY 40601