NOT TO BE PUBLISHED
97-ORD-41
March 13, 1997
In re: Donald J. Ruberg/Campbell County Cable TV Board
Open Records Decision
This matter comes to the Attorney General on appeal from the Campbell County Cable TV Board's response to an open records request submitted by Donald J. Ruberg. On January 29, 1997, Mr. Ruberg requested copies of:
1. October 22, 1996 Minutes.
2. The Treasurer's Report approved at the January 28th meeting.
3. The three lists of bills approved at the January 28th meeting.
4. Any and all correspondence, memoranda, notes or documents between the Campbell County Cable Board, its agents, employees or representatives to or from its consultants/experts, their agents, employees, or representatives beginning 1/1/95 to date.
5. Any and all correspondence, memoranda, notes or documents between the Campbell County Board, its agents, employees or representatives to or from any governmental unit located in Campbell County, its agents, representatives or employees beginning 1/1/95 to date.
Having received no response to this request within the required three day period, Mr. Ruberg initiated this appeal in a letter to the Attorney General dated February 10, 1997.
On February 19, 1997, this office received a copy of a letter from Robin E. Harvey, an attorney representing the Campbell County Cable TV Board, to Mr. Ruberg. In that letter, which was dated February 18, 1997, Ms. Harvey stated that the Board would furnish Mr. Ruberg with copies of the October 22 minutes, the treasurer's report, and the lists of bills. She denied his request for the remaining records, arguing that they are “subject to the exemptions contained in §61.878(1) of the Kentucky Open Records.” Continuing, she observed:
Many of these documents are privileged communications and, in light of the ongoing litigation between TKR and the Cable Board, are not subject to the Open Records Act. With respect to any non-privileged documents covered by your last two requests, discovery is the proper channel for obtaining copies of such documents.
In closing, Ms. Harvey apologized for the delay in responding to Mr. Ruberg's request, but noted that because of the “overly-broad and burdensome nature of [his] final two requests,” the Board needed additional time for “determination of compliance with the Open Records Act. . . .”
In a letter to this office dated February 20, Mr. Ruberg identified three issues which he believes Ms. Harvey's letter raises. First, he noted, the response was not timely. Second, he observed, the response was not issued by the official custodian or under his authority. Third, he argued, Ms. Harvey did not satisfy the requirements of KRS 61.880(1). Mr. Ruberg explained:
KRS 61.880(1) mandates that if inspection of the requested public records is denied, the official custodian must give a specific exception authorizing the withholding of the record withheld and a brief explanation of how the exception applies to the records withheld. Accordingly, I would request that for each record withheld, the record be identified, the statutory exemption be specified, and the Campbell County Cable Board give a brief explanation of how the exception applies to that record.
He asks that we resolve these issues in an open records decision. For the reasons set forth below, we conclude that the Campbell County Cable Board violated KRS 61.880(1) by failing to respond to Mr. Ruberg's request within three work days, and by failing to satisfy its burden of proof in sustaining its denial based on KRS 61.878(1). We do not find that the Board violated KRS 61.880(1) by issuing its response to Mr. Ruberg under Ms. Harvey's signature.
The Campbell County Cable TV Board is no doubt familiar with the procedural requirements of the Open Records Act. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision.
The law thus presumes notification within three work days. The only exception to this general rule is found at KRS 61.872(5) which states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Mr. Ruberg's request was submitted on January 29. The Board responded on February 18. Thus, twelve work days elapsed between the date of his request and the date of the Board's response. The Open Records Act does not recognize, as a legitimate basis for enlargement of agency response time, the fact that a request is “overly-broad and burdensome.” We urge the Campbell County Cable TV Board to review the cited provisions to insure that future responses conform to the Open Records Act.
We do not find that the Board violated KRS 61.880(1) when it responded to Mr. Ruberg's request through its attorney, Robin E. Harvey. That statute provides, in relevant part, that “[t]he response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.” The statute does not require a formal delegation of authority. It is a common practice among public agencies, and one which this office has recognized and approved, to process open records requests through the agencies' attorneys. Thus, in 93-ORD-134, we observed:
[W]e see nothing wrong with the City's policy of processing open records requests through its Law Department. In our view, this policy insures uniformity and adherence to the law. The policy may, however, be problematic if it occasions delays in agency response.
93-ORD-134, p. 12. Although this policy does not, in our view, violate the Open Records Act, we remind the Board that it is bound by the requirement that it respond within three work days, and that it is not entitled to additional time for its attorney to make a “determination of compliance with the . . . Act. . . .”
Turning to the substantive issues in this appeal, we find that the Campbell County Cable Board failed to meet its statutory burden of proof in sustaining its denial of Mr. Ruberg's request pursuant to KRS 61.878(1). KRS 61.880(1) provides, in part, that “[a]n agency response denying in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.” It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency. 92-ORD-1020; 93-ORD-86; 94-ORD-154; 95-ORD-61; 96-ORD-26. At page 5 of 95-ORD-61, this office commented:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [found at KRS 61.872(6) and requiring clear and convincing evidence to support denials based on unreasonably burdensome requests,] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
(Emphasis in original.) Ms. Harvey cited KRS 61.878(1) as the statutory basis for denying Mr. Ruberg access to the disputed records, but did not explain how that provision authorizes nondisclosure of those records. Her assertion that the records are privileged, and should be obtained through discovery in view of the ongoing litigation between the parties, is insufficient because she fails to articulate, in terms of the requirements of the statute, the basis for denial. A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirements of the Act.
KRS 61.878(1) was amended in 1994, and now provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery[.]
(Emphasis added.) At page 4 of 95-ORD-18, we construed this language to mean:
that should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to that action, and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/party, though it might otherwise do so in its discretion.
(Emphasis in original.) We noted that the introduction of the highlighted language does “not alter our interpretation of the Act, this office having long recognized that records which are privileged are not subject to inspection pursuant to KRS 61.878(1)(l) and related authorities.” Id. Nor, we added, “does it alter our view that an agency's duty under the Act is not suspended in the presence of litigation.” Id.
The latter position is premised on the notion that “[r]equests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery.” OAG 89-65, p. 3. In the latter opinion, we reasoned:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. . . . Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
OAG 89-65, p. 3, 4. Similarly, in OAG 89-53, we observed:
The presence of litigation among the parties . . . should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. [1]
The Campbell County Cable Board improperly adopts a policy of blanket exclusion relative to correspondence, memoranda, notes or documents between the Board, its agents, employees or representatives to or from its consultants and experts, their agents, employees, or representatives, and any governmental unit located in Campbell County, its agents, representatives, or employees, from January 1, 1995 to the present. In construing the agency's obligations under KRS 61.880(1), the Kentucky Court of Appeals recently observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [W]e cannot agree [that a] . . . limited and perfunctory response to . . . [a] request even remotely complie[s] with the requirements of the Act — much less that it amount[s] to substantial compliance.
Edmonson v Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Thus, we do not suggest that the Board's reliance on KRS 61.878(1) was completely misplaced, only that it failed to provide sufficiently “particular and detailed information in response to [Mr. Ruberg's] request.” While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), and which Mr. Ruberg demands, we believe that the Board is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, [2] and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable. As noted, the presence of litigation does not suspend the Board's obligations under the Open Records Act.
We note, in closing, that the Campbell County Cable Board did not refuse to honor Mr. Ruberg's request on the grounds that it was a blanket request for “any and all” documents generated in a two year period. Nor did it assert that production of those records would place an unreasonable burden on it per KRS 61.872(6). Where, however, an applicant requests copies of records, KRS 61.872(3)(b) requires that he “precisely describe [ ]” the records “which are readily available within the agency.” This provision comports with the rule that if a person cannot describe the documents he seeks with sufficient specificity, the public agency is not required to conduct a search for those documents. OAG 91-58. It reflects the view 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. . . . [A] person desiring that lists be made or that he have copies of broad categories of information must expend his own time in digging out the information unless it has already been compiled.
OAG 76-375, p. 4. The Campbell County Cable Board and Mr. Ruberg may wish to bear these observations in mind in future open records exchanges.
In sum, we find that the Campbell County Cable Board's response was untimely, and to this extent procedurally deficient, but that the Board did not commit a procedural violation of the Open Records Act when it responded to Mr. Ruberg's request through its attorney. We further find that the Board failed to meet its statutory burden of proof in sustaining its denial of Mr. Ruberg's request pursuant to KRS 61.880(1). In light of the Court of Appeals' decision in Edmondson, supra, the burden on the custodian of records “to provide particular and detailed information in response to a request for documents” is clear. Consistent with the principles articulated above, the Board is therefore directed to release all nonexempt records which satisfy Mr. Ruberg's request, and to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable.
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 KRS61.880(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
#166
Distributed to:
Donald J. Ruberg
O'Hara, Ruberg, Taylor, Sloan and Sergent
P. O. Box 17411
Covington KY 41017-0411
Robin E. Harvey
Benesch Friedlander Coplan & Aronoff
2800 Cincinnati Commerce Center
600 Vine Street
Cincinnati OH 45202-2409
Kirt Rockel
Campbell County Cable Board
175 Johns Hill Road
Highland Heights KY 41076
[1] However, in the same opinion, we admonished: We do not, in making this observation, indicate that Open Records provisions should be used as a substitute for requests under discovery procedures associated with civil actions. Where records may subsequently be offered as evidence in court, problems in establishing their integrity may be more difficult for those obtained under Open Records provisions, as compared with records obtained under discovery procedures.OAG 89-53, p. 4. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.
[2] For example, the Board might characterize one or more of the records withheld as “correspondence from Ms. Harvey to the Board on questions pertaining to franchise renewal” and deny access on the basis of KRS 61.878(1)(l) and KRE 503 as privileged lawyer client communication which was not disclosed to third persons.