Request By:
Mrs. Jackie Swigart
Secretary
Natural Resources and
Environmental Protection
Capitol Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. Sam G. McNamara, attorney representing the Frankfort State Journal, has appealed to the Attorney General in behalf of his client under KRS 61.880 your denial of inspection of certain public records in your custody. In a written request to your office dated April 22, 1981 the records were described as follows:
"1. Any and all records of Agreed Orders signed by the Secretary of Natural Resources and Environmental Protection levying fines against coal companies operating in the Commonwealth of Kentucky between the period April 22, 1976 and April 22, 1981. These fines would be for various infractions of laws and regulations relating to the mining of coal.
"2. Any and all records maintained by the Department of Natural Resources and Environmental Protection relating to the collection of fines levied and signed by the Secretary of the Department between April 22, 1976 and April 22, 1981.
"3. Any and all records relating to the forfeiture of bonds by coal companies found guilty of violating coal mining laws and regulations of Kentucky between the period of April 22, 1976 and April 22, 1981."
The request was signed by Carleton L. West, Editor, The State Journal.
After corresponding on the matter you stated in a letter dated May 19, 1981 that Mr. West could have access "to all records that are physically located in the office of the General Counsel."
You stated that "[t]his includes all closed files from July 1, 1980, files containing agreed orders and settlement orders, and all active files." You further responded as follows:
"However, we must deny your request to inspect all closed files located in the storage warehouse on West Broadway as it would place an unreasonable burden on the Department. Our basis for rejection is KRS 61.872(5) which states, in pertinent part,:
'If the application places an unreasonable burden in producing voluminous public records. . . the official custodian may refuse to permit inspection of the public records. . .'
"As we have stated previously, before these numerous files could be inspected it would be necessary for an attorney to remove documents that the Kentucky Open Records Act prohibits from disclosing. Contrary to what Mr. McNamara stated in the May 12, 1981 letter, the files in storage contain numerous documents absolutely prohibited from disclosure by KRS 61.878."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial of inspection of the requested records by the State Journal is not in accordance with the Kentucky Open Records Law, KRS 61.870-61.884, in the following respects:
1. The exemptions to the requirement for the mandatory disclosure of public records provided by KRS 61.878 are not mandatory, only permissive. In OAG 79-275 we said:
"The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.
"One reason we believe that the exemptions are a shield and not a shackle is that the statute provides no penalty for releasing exempted documents. . . ."
"The safest course for a public official who has public records in his custody is always to allow inspection of the records unless some statute, other than the Open Records Statute, makes the records confidential and orders that they not be released. Public officials and employees have enough to do without scrutinizing records to see if they are exempt under the Open Records Law. "
Your statement in your letter of May 19, 1981 that the files in storage contain numerous documents absolutely prohibited from disclosure by KRS 61.878 is, therefore, incorrect. That statute, by itself, does not absolutely prohibit the disclosure of any record. It grants permission to a public agency to withhold records which fall under one of the exemptions if it has a reasonable and consistent policy of doing so.
2. Your response does not make an adequate showing that the request to inspect the described records places an unreasonable burden on your agency. In a letter to you dated May 12, 1981, Mr. McNamara stated as follows:
"We are not requesting that state employees make any compilation of records nor are we requesting that copies of any of the above documents be made by your employees. We are merely requesting a right to inspect the above described documents during the regular office hours of the department and that you make suitable facilities available for the inspection of these documents."
We believe the requester in this case has not made any demand on your agency which is beyond the scope of the Open Records Law.
3. The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records. The exemption statute, KRS 61.878, deals specifically with this question in subsection (3) which reads as follows:
"If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
4. We believe that the requester in this case has not placed an unreasonable burden on the agency in producing voluminous public records. You based your denial of inspection of the requested records mainly on KRS 61.872(5) which you quoted in part in your letter. The entire subsection (5) reads as follows:
"If the application places an unreasonable burden in producing voluminous 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. However, refusal under this section must be sustained by clear and convincing evidence. "
For an agency to be justified in refusing inspection of records under the above quoted provision, it would have to have reason to believe that the requester was maliciously harassing and disrupting the operation of the agency office. We do not believe that such was happening in this case. Both Mr. West and Mr. McNamara explained in letters to you the purpose for which they desired to inspect the records. However, this was not necessary, in that under the Open Records Law a requester does not have to state any purpose to inspect records. The press has no more nor no less right to inspect records than any individual. No special standing is required. Only when an agency has good reason to believe that a request is made only for the ulterior motive of disrupting the operation of the office by request of voluminous public records, and in addition to so believing, has clear and convincing evidence that such is the case, may it deny inspection under KRS 61.872(5).
In summary, it is the opinion of the Attorney General that your denial of inspection of the requested records violated KRS 61.870-61.884.
As directed by statute, a copy of this opinion is being sent to the requester.