NOT TO BE PUBLISHED
96-ORD-209
October 3, 1996
In re: Keith Phillips/Eastern Kentucky Correctional Complex
Open Records Decision
This matter comes to the Attorney General on appeal from Eastern Kentucky Correctional Complex's denial of inmate Keith Phillips's requests for a copy of the facility's current canteen price list. On May 28, May 31, and July 18, 1996, [1]
Mr. Phillips submitted requests for a “[p]rint-out from data bank of prices of all items being sold at EKCC canteen (Inmate). . . . for date this request is received by the EKCC Business Office.” In response to his May 28 request, Linda S. Hill, records custodian at EKCC, advised:
The report requested is not normally generated at this late time of the month, the report is generated once a month during the first 2 weeks of the month usually before “state pay” and posted in all the dorms, library, canteen, etc., for the inmate population. To generate a special generated report for this date would interrupt normal operations and create computer down-time in the canteen.
An open records request is for records already generated, the report you requested was last generated on May 7, 1996, not today, May 28, 1996. There fore [sic] no copies were made since no report is available for this date of request.
Ms. Hill issued a similar response to Mr. Phillips's May 1 request, but argued, as an additional basis for denial, that his request was unreasonably burdensome and intended to disrupt the agency's essential functions per KRS 61.872(6). She reasserted this basis for denial in responding to his July 18 request. It is from this series of denials that Mr. Phillips appeals.
In his letter of appeal, Mr. Phillips acknowledges that he has made monthly requests for the canteen lists, but notes that only one such request has been honored. He argues that “it would only take a matter of minutes to generate a canteen price list (7) pages long off of a computer,” and that the computer “is only used when new items are added to the system and to update prices.” It is his position that his is a legitimate request for the current canteen price list, aimed at facilitating more efficient use of the canteen, [2] and exposing pricing errors and overcharges. [3]
On September 12, 1996, Tamela Biggs, a staff attorney in the Department of Corrections, responded to Mr. Phillips's appeal. Based on her conversation with Ms. Hill, she advised:
[T]he business office updates the monthly canteen price listing during the first ten days, before state pay. Invoices are periodically received over the course of the month and these may or may not be immediately entered into the computer. The “official” canteen price listing is a report which is generated once a month and is posted for the inmate population. In order to run a hard copy of the listing, the computer must be “down” for approximately a half hour while the information is printed. All other computer functions in the canteen are precluded during this period.
Relying on 95-ORD-105, in which this office held that an agency is not required to satisfy the identical request a second time in the absence of some justification for resubmitting the request, she noted that the facility has become “well acquainted with Mr. Phillip's [sic] propensity for filing Open Records requests and deny them by relying on KRS 61.872(5).” [4] Rejecting without refuting Mr. Phillips's claim that “he is seeking a `new' document each time,” she maintains:
If we are required to produce a “current” canteen price list from the database upon Mr. Phillips' demand, we could be forced to produce copies on a daily basis. The majority of these would be duplicative due to the lack of any new posting of invoice prices.
In closing, Ms. Biggs notes that in light of Mr. Phillips's “past criminal history and his knowledge of computers, the Department is very circumspect in releasing documents regarding canteen operations to him.”
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated provisions of the Open Records Act in denying Mr. Phillips's request for current printouts of the facility's canteen price list. For the reasons set forth below, and upon the authorities cited, we conclude that EKCC's response violated the Act.
We begin by noting that his “past criminal history and knowledge of computers” notwithstanding, Mr. Phillips stands in the same shoes as any other requester under the Open Records Act. See, e.g., 94-ORD-20, p. 2 (“all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof”); see also, 95-ORD-105; 94-ORD-20; 92-ORD-1136; OAG 91-129; OAG 89-86; OG 82-394; OAG 80-641; OAG 79-582; OG 79-546. [5] As EKCC and the Department of Corrections well know, the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security. KRS 197.025(1) thus provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
If EKCC has reason to believe that in Mr. Phillips's hands the requested records constitute a threat to security, it may avoid the requirements of the Open Records Act by invoking this provision. Otherwise, he, like any other requester, is entitled to access if the records he seeks are otherwise nonexempt. Because EKCC has not invoked KRS 197.025(1), we proceed on the assumption that disclosure of current canteen price lists to Mr. Phillips does not constitute a threat to security.
Further, his well known “propensity for filing Open Records requests” notwithstanding, Mr. Phillips enjoys the same right to submit multiple, as opposed to duplicative, requests for public records as any other applicant in the absence of clear and convincing evidence that those requests are unreasonably burdensome or are intended to disrupt essential functions of the public agency per KRS 61.872(6). In 96-ORD-193, this office attempted to articulate a standard by which EKCC could judge whether it had made the requisite showing under this statute. Citing 92-ORD-1365, at pages 6 and 7, 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 [61.871]. 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 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.
96-ORD-193, p. 3, 4 (emphasis added).
In the same decision, this office recognized that, “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).” 96-ORD-193, p. 5. This statement was premised on the notion 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. Thus:
In determining whether a series of open records requests if 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.
96-ORD-193, p. 5.
At page 5 of OAG 90-112, [6] this office recognized that “[d]etermining when an application places an unreasonable burden upon an agency to produce . . . public records is at best difficult.” Citing OAG 77-151, at page 3, we noted that “[r]epeated requests to inspect the records of a public agency alone do not, in our opinion, amount to harassment.” OAG 90-112, p. 5. Although we held that the public agency had not sustained its denial of the applicant's request in that appeal, we allowed that “future requests of a similar nature might be properly denied pursuant to KRS 61.872[(6)] if new or additional evidence can be produced which demonstrates by `clear and convincing evidence' that the request is unreasonably burdensome.” OAG 90-112, p. 5. We find the reasoning of that opinion persuasive.
EKCC asserts that “[i]n order to run a hard copy of the [canteen price] listing, the computer must be `down' for approximately a half hour while the information is printed.” This precludes any other use of the computer. It is the report which is generated and posted once a month which, in EKCC's view, is a public record, and not the specially generated report which Mr. Phillips requests. Thus, to require EKCC to generate a printout of this electronically stored information would place an unreasonable burden on it. We do not agree.
Among the sweeping changes wrought by the 1994 General Assembly in the area of open records was the codification of the principle that all public agency records, regardless of whether they are maintained in an electronic or hard copy format, are public records for purposes of the Open Records Act. [7] Thus, KRS 61.874(2)(a) now provides:
Nonexempt public records . . . shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format.
It is abundantly clear from the language of this statute that the Open Records Act does not recognize a distinction between records which are electronically stored and records which are stored in a hard copy format, or the obligations of a public agency for release of same. [8]
It is the opinion of this office that EKCC has not demonstrated by clear and convincing evidence that Mr. Phillips's requests are unreasonably burdensome. We do not concur with EKCC in its view that reproducing a hard copy of its existing canteen price list database is equivalent to creating an entirely new record. Nor do we believe that repeated applications for it to do so are necessarily burdensome. The fact that up to one-half hour of computer time may be expended in printing out the price list from the database is not germane to our analysis. Clearly, a public agency could not deny a request, or series of requests, for nonexempt public records in hard copy format pursuant to KRS 61.872(6) simply because its copying machine, and the staff person assigned to generate the copies, would be occupied for thirty minutes. Simply stated, EKCC's response is based on the erroneous assumption that access to records maintained electronically can be restricted in a manner that access to records maintained in hard copy format cannot. This assumption is inconsistent with KRS 61.874(2)(a). Absent clear and convincing evidence that reproduction of a seven page list in hard copy format is unreasonably burdensome, we find that EKCC cannot persuasively argue that reproduction of the same information in electronic format is unreasonably burdensome.
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
#1049
Distributed to:
Linda Hill
Fiscal Manager
Eastern Kentucky Correctional Complex
Box 636
West Liberty KY 41472
Keith Phillips #100289
Eastern Kentucky Correctional Complex
Box 636
West Liberty KY 41472
Tamela Biggs
Staff Attorney
Department of Corrections
State Office Building
Frankfort KY 40601
[1] Pursuant to KRS 61.880(2)(a), Mr. Phillips provided this office with copies of each of these requests. In its response to his appeal, the Department of Corrections stated that Mr. Phillips submitted similar requests on April 12, April 23, May 3, June 5, and July 18, 1996.
[2] Mr. Phillips offers a lengthy explanation of how inmates must make their purchases at the canteen in an attempt to demonstrate why advanced inspection of the list would increase efficiency.
[3] Mr. Phillips states that the by-laws of the Centralized Canteen Corporation prohibit anything greater than a 20% markup from cost. He notes that while he was housed at Kentucky State Reformatory, he uncovered pricing errors and overcharges that were passed along to the inmate population.
[4] We assume that Ms. Biggs intended to cite KRS 61.872(6) rather than (5). The latter provision relates to records not immediately retrievable, and does not constitute a denial of an open records request, but a delay in release of records beyond three working days.
[5] The Attorney General has, however, also recognized that “an inmate's movements within the facility are presumably restricted, and the manner in which he conducts his financial business dictated by the facility. [Citations omitted.] Accordingly, an inmate must accept the necessary consequences of his confinement, including policies [governing] application for, and receipt of public records.” 95-ORD-105, p. 5. See also, 96-ORD-7 and 96-ORD-200.
[6] In OAG 90-112, the applicant expressed his intention to submit weekly open records requests for accident reports in the custody of the Kentucky State Police. Relying on KRS 61.872(6), the State Police denied the request, arguing that these requests would be unreasonably burdensome. The Attorney General rejected this argument, noting that the applicant had requested specific records for a specific period of time, and that since those records already existed, the request would not require the creation or compilation of records.
[7] In Amelkin v Department of State Police, Civil Action No. 3:94 CV-360-A (W.D.Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996), the federal district court for the Western District of Kentucky enjoined the Attorney General, and other named parties, from enforcing the 1994 amendments to the Open Records Act. Based on the court's reasoning, this office has construed the decision to be confined to those portions of the statute which distinguish between commercial and noncommercial use of public records. Resolution of this appeal does not turn on any of these provisions.
[8] See, e.g., 95-ORD-43, holding that a county clerk could not deny access to nonexempt public records on the grounds that those records were electronically stored. At page 4 of that decision, we reasoned:This position directly contravenes the legislative intent embodied in the recent amendments to the Open Records Act. Responding to the ever-expanding use of computerized information systems, the General Assembly established, once and for all, that requests for nonexempt public records must be honored regardless of whether they are maintained in an electronic or hardcopy format. Prior to its amendment, persons seeking access to records in a standard hardcopy format proceeded under the Open Records Act. Electronically stored records were available, if at all, through the Public Access to Governmental Databases Act. In construing this Act, the Attorney General had ruled that a public agency could properly deny a request for records stored in an electronic database if those records were requested for a commercial purpose. See, e.g., OAG 91-116. The “commercial purpose” exception did not foreclose access to nonexempt records in hardcopy format, which agencies were required to release regardless of the requester's purpose. In amending the Act, the General Assembly eliminated this artificial dichotomy. This was no mean achievement. In an age of rapidly changing information systems planning and technology, Kentucky seized the initiative and further advanced the policies articulated in KRS 61.871.(Emphasis added.)