Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Russell Springs violated the Open Records Act in responding to A. B. Hare's September 25, 1998, request to inspect and copy tax records reflecting amounts due, amounts paid, and dates of payment for various parcels of property and various periods of time extending back to 1992. For the reasons that follow, we find that the City's response was only partially consistent with the Open Records Act.
In a response dated September 29, 1998, city clerk Harriet Black Buchanan notified Mr. Hare that cities are only required to retain tax payment records for two years. Nevertheless, she furnished him with information on three of the six parcels identified in his request from 1992 to the present. The remaining properties, she advised him, are not located in the Russell Springs city limits.
Shortly thereafter, Mr. Hare contacted Ms. Buchanan by letter, reminding her that he had asked to "inspect and/or copy" the actual tax records. On October 6, Ms. Buchanan issued a response on behalf of the city in which she again stated that "cities are only required to keep tax payment records for a period of two years." Invoking, for the first time, KRS 61.872(6), she asserted that Mr. Hare's requests had become unreasonable burdensome. In support, she noted that he had made "four requests in a 3 1/2 week period." Dissatisfied with this response, Mr. Hare initiated an open records appeal to the Attorney General.
While we do not find that the City of Russell Springs has established, by clear and convincing evidence, that Mr. Hare's requests have become unreasonably burdensome, we affirm its denial of access to records which are no longer in existence. To the extent that some of the records requested are not yet two years old, and therefore are in existence, we find that the city improperly denied Mr. Hare access, and should make them available to him for inspection.
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or cannot be located. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have disappeared. OAG 86-35. As we observed in OAG 86-35, at page 5, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents. .. for the party seeking to inspect such documents." However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, offer a reasonable explanation for its inability to produce public records which were once in its custody but no longer exist.
The City of Russell Springs explained to Mr. Hare that it is only required to maintain tax records for a two year period. Although the city furnished him with information from tax records dating back to 1992, it indicates, in a supplemental letter addressed to this office, that the information "was obtained from the individuals and/or families involved and not from city records." We have confirmed, through the Department for Libraries and Archives Public Records Division, that the retention period for property tax bills is two years, and that such records must be destroyed "after audit." We therefore find that the city's explanation for the nonexistence of tax records which were more than two years old was a reasonable one, and affirm its denial of Mr. Hare's request for same.
It nevertheless appears that at least some of the tax bills which Mr. Hare requested still exist. The records he requested, and the information furnished, included tax bills for the past two years. Regardless of whether the information which the city furnished him was obtained from the property owners, that information must exist on current tax bills. Accordingly, he is entitled to inspect the actual records, rather than receiving the information in narrative form.
In a recent decision, this office observed:
KRS 61.872(1) provides that "all public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that "any person shall have the right to inspect public records. " KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that "upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof...."
In interpreting these provisions, the Attorney General has consistently recognized that an applicant may properly assert a right to inspect nonexempt public records. Thus, in OAG 76-375 we held that if an applicant cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he must be permitted to "make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. ..." OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the applicant asserted the right "to inspect the ? documents during the regular office hours of the department...." OAG 81-198, p. 4. The Attorney General concluded that the applicant had "not made any demand on [the] agency which is beyond the scope of the Open Records Law. " Id.
97-ORD-12, p. 2, 3.
Although the City of Russell Springs went above and beyond its statutory duty in compiling previously uncompiled tax information for Mr. Hare, this does not excuse the city from its duty to permit him to inspect nonexempt public records. The city advances no claim that the requested records are exempt, nor does it cite any of the exceptions codified at KRS 61.878(1)(a) through (i) supporting nondisclosure. Absent any such claim, and assuming the existence of the tax records which are no more than two years old, we find that the city is obligated to permit Mr. Hare to inspect them.
Turning now to the City of Russell Springs' argument that Mr. Hare's requests have become unreasonably burdensome, we find that city has provided insufficient proof to support its claim. 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 city maintains that the four requests which he made in a 3 1/2 week period were "disruptive." This office has long recognized that "mere invocation of the cited exception does not sustain the agency's burden." 97-ORD-88, p. 6.
In 97-ORD-88, this office analyzed in great depth the propriety of an agency's reliance on KRS 61.872(6) to justify its denial of an open records request. At pages 6 and 7 of that decision we observed:
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 request 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 in producing voluminous public records.
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:
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 Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872[(6)]. That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt material.
At this point, the city has documented only four requests in a 3 1/2 week period. Mr. Hare disputes this figure, noting that his subsequent correspondence with the city related to his initial request for tax records. We do not believe that the cited authorities support the city's argument that his request or requests have become unreasonably burdensome.
We remind the City of Russell Springs that KRS 61.872(6) establishes a high standard of proof relative to its invocation. Public agencies must demonstrate, by clear and convincing evidence , that the requester's applications to inspect public records have become unreasonable burdensome. It is possible that the city could build a successful case that Mr. Hare's requests have become burdensome. We are aware of two open records appeals submitted to this office between October and December, 1998. This may represent "the proverbial tip of the iceberg relative to the total number of open records requests submitted to the city." 96-ORD-193, p. 5. As we noted in the latter decision:
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.
96-ORD-193, p. 5 (emphasis added). To date, the City of Russell Springs has failed to build such a case.
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.