Request By:
Chris Henson
1939 Augustine Avenue
Covington, KY 41014-1117Lt. Col. Thomas Schonecker
Covington Police Department
1929 Madison Avenue
Covington, KY 41014
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 Covington Police Department violated the Open Records Act in the disposition of a series of requests for public records submitted by Chris Henson. For the reasons that follow, we conclude that the Department's actions constituted a partial violation of the Act.
In his letter of appeal, Mr. Henson states that from November, 2000, to the present, he submitted a number of open records requests to the Covington Police Department in which he asked for copies of "offense reports from different areas of the city . . . ." He indicates that he was "very specific" in formulating his requests, identifying each report by the complainant's name, the nature of the reported offense (i.e., theft, burglary, robbery), and the date of the reported offense. With each request, he enclosed "the appropriate return envelopes that were self-addressed and postage pre-paid."
On November 16, 2000, Mr. Henson advises, he received a telephone call from "a man who identified himself as Asst. Chief Tom Schoenecker [sic] of the Covington Police Dept.," and who asked to know Mr. Henson's reasons for requesting the offense reports. Mr. Henson states that he explained to the caller that he was conducting research on patterns of criminal activity in the city. Apparently dissatisfied with the proffered justification, the caller indicated that Mr. Henson's requests were henceforth denied, but declined to issue a written denial or state the statutory basis for the denial.
Mr. Henson did not retain copies of most of his requests, and was unable to obtain copies from the Department, but furnished this office with a copy of a November 2, 2000, request for:
1. Robbery report, reported by D.E.P.'s Liquor Outlet on August 15, 2000;
2. Theft report, reported by Gibson Greeting Card Company on August 9, 2000;
3. Burglary report, reported by Lisa Huston on August 12, 2000;
4. Theft report, reported by Laura Hathman on August 8, 2000;
5. Theft report, reported by Jamie Mospens on August 15, 2000.
In addition, Mr. Henson furnished this office with a copy of a letter dated November 17, 2000, and signed by Lt. Col. Thomas Schonecker, Assistant Chief of Police, which Mr. Henson received on November 28, 2000. Lt. Col. Schonecker advised:
Due to your excessive police report requests, and your invalid reasons as to why you have been requesting these reports, we will no longer be providing you with this service.
Please feel free to make use of our Public Report Board, which is posted in the Records Department at the Covington Police Department, 1 Police Memorial Drive, Monday through Friday, from 8:00 a.m. until 4:15 p.m.
It is this limited record that we review on appeal.
In a supplemental response directed to this office following commencement of this appeal, Lt. Col. Schonecker elaborated on the department's position. He observed:
Mr. Henson has in the past requested numerous copies of reports which we have accommodated. Our records clerk has spent many hours not to mention days trying to accommodate Mr. Henson so as to not be in violation of the Open Records Law. This has caused the records division to neglect other duties of record keeping in that her regular duties have been put on hold until Mr. Henson's requests have been meet [sic].
Continuing, Lt. Col. Schonecker advised that in a November 13 request for records purportedly stored in the department's computer aided dispatch system, Mr. Henson asked for copies of reports for a five year period without providing names, dates, or offenses. He indicated that any attempt to satisfy such a request "would be a very timely and lengthy search that shows no reasonable rationale [sic]." Lt. Col. Schonecker again extended an invitation to Mr. Henson to inspect the department's daily reports during regular business hours, noting that Mr. Henson lives only one block from the department, and requested that this office mediate the dispute in such a manner as "to accommodate all parties."
We begin by noting that our review in this matter is limited to the issues raised in the November 9 - November 17 written exchange between Mr. Henson and Lt. Col. Schonecker. Pursuant to 40 KAR 1:030 Section 1, "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." This is the written record upon which we rely in conducting our review. Because Mr. Henson was unable to furnish us with any other documentation, we confine our review to this record. Because this office performs a quasi-adjudicative function in resolving open records disputes, we are foreclosed from advising the Covington Police Department how to respond to Mr. Henson's November 13 request lest we compromise our impartiality in the event of an appeal. Finally, we cannot broker an agreement between the parties based on a compromise of the law, but restrict our analysis to the question of whether the Covington Police Department violated the Open Records Act in its disposition of Mr. Henson's November 9 request.
The November 9 - November 17 written exchange between Mr. Henson and Lt. Col. Schonecker raises four issues. They are:
3. Whether the Covington Police Department established, by clear and convincing evidence, that Mr. Henson's request was unreasonably burdensome within the meaning of KRS 61.872(6)?
4. Whether Mr. Henson can properly be required to conduct an on-site inspection of nonexempt public records as a precondition to, or in lieu of, receiving copies of those records?
We examine each of these issues below.
Inquiry into purpose of requests
In an early opinion, the Attorney General recognized that "the exemptions [codified at KRS 61.878(1)] may be invoked according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3; see also OAG 89-76. Twelve years later, Kentucky's Court of Appeals confirmed this position in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), observing:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to access to information as the next.
Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has held:
The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application . . . contains the following:
94-ORD-101, p. 3. In sum, we concluded that "[a] public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)."
KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records, or to consider those motives in determining whether the records should be released. 1 The Covington Police Department therefore erred in inquiring into, and denying Mr. Henson's request on the basis of, his "invalid reasons . . . [for] requesting these reports." As we noted at page 2 of OAG 76-588, "it is contrary to the letter and the spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted."
Inadequacy of Department's response
The Covington Police Department's response to Mr. Henson's request did not conform to the procedural requirements for agency response set forth at KRS 61.880(1). That statute 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. An 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although it appears that there was some oral communication between Mr. Henson and the department on November 16, a written response was not drafted until November 17, and mailed until November 27. 2 Thus, the department's response was delinquent by some eleven business days.
Moreover, the written response issued on November 27 did not "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. " KRS 61.880(1). In construing the latter provision, the Kentucky Court of Appeals has 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.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). And, as this office has so often commented, "the procedural requirements of the Open Records Act" are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." See, for example, 93-ORD-125, p. 5. The department cited none of the exceptions codified at KRS 61.878(1)(a) through (l), or elsewhere, or attempt to explain how an exception applied to the records withheld. "Excessive" requests and "invalid reasons" do not constitute legally supportable bases for denying access to public records. 3
Burdensome nature of requests
From the Covington Police Department's November 17 response to Mr. Henson's request, and its supplemental response to this appeal, it appears that the department's chief objection to Mr. Henson's November 9 request, as well as prior and subsequent requests, is the burdensome nature of these requests. KRS 61.872(6) provides relief to public agencies to which voluminous and lengthy requests are directed by providing:
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.
If an agency invokes KRS 61.872(6) as a basis for the nondisclosure of 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. 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.
In determining whether a series of open records requests is unduly 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. In OAG 77-151, at p. 3, we opined:
Repeated requests to inspect records of a public agency alone do not, in our opinion, amount to harassment. 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 that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
However, we have also recognized 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, at p. 4. In weighing these interests we must bear in mind, as noted above, that the statute assigns the burden of proof to the agency to demonstrate, by clear and convincing evidence, that the requests are burdensome or intended to disrupt the essential functions of the agency.
The record before us does not support the Covington Police Department's argument that Mr. Henson's requests are unreasonably burdensome. The department characterizes the requests as "excessive, " and asserts that the records clerk has expended "many hours not to mention days" in an effort to satisfy his requests, and has been forced to "neglect . . . her regular duties." The "clear and convincing" standard codified at KRS 61.872(6) requires more. For example, in 96-ORD-42, the Attorney General affirmed the Workforce Development Cabinet's denial of a request for P-1's reflecting promotions in the Department for Employment Services between July 1, 1994, and June 30, 1995, on the basis of KRS 61.872(6). In an attempt to establish, by clear and convincing evidence, the unreasonably burdensome nature of the request, the Cabinet explained:
The Workforce Development Cabinet does not have a list of DES employee's [sic] who received promotions during this period. The only manner in which the Cabinet could determine which DES employees received promotions during the time in question is to physically examine the 1,167 personnel files transferred to the Cabinet from the Cabinet for Human Resources ('CHR') at the time of the reorganization. The Division of Personnel Services ('the Division') estimates that it would take an average of fifteen (15) minutes to examine each personnel file. It would take staff of the Division, with an average salary of $ 16.49 per hour, 291.765 hours to determine which employees received promotions. It is estimated that it would cost $ 4,810.96 just to make this initial step to comply with your request.
After the individuals who received promotions during the time covered by your request are identified, the Division would have to remove the P-1's from their files; copy the P-1's, redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 back into the personnel file; and copy the redacted P-1's for your inspection. The Division estimates that it would take an average of fifteen (15) additional minutes to complete these procedures for each employee who received a promotion.
It is this degree of specificity which KRS 61.872(6) envisions. See also, 97-ORD-88 (affirming Cabinet for Health Services' denial of open records request on the basis of KRS 61.872(6)); compare, 99-ORD-4 (holding that proof of four requests in a four and one-half week period did not establish an unreasonable burden or an intent to disrupt essential agency functions).
No such proof has been presented in the appeal before us. This is not to say that the department could not at some point build a successful case that Mr. Henson's requests have become unreasonably burdensome. As we observed in 96-ORD-193:
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 Covington Police Department has failed to build such a case.
Requirement of on-site inspection
The final question that Mr. Henson's appeal raises relates to the department's proposal that he inspect the records identified in his requests during regular business hours at the offices of its records department in lieu of honoring his request for copies. Acknowledging that he resides near those offices, Mr. Henson nevertheless objects that such an arrangement is impractical because the records department's hours conflict with his business schedule. If Mr. Henson both resides and works in Kenton County, we find no error in the department's position, notwithstanding the fact that he may be required to use his personal or vacation time to conduct an on-site inspection. If Mr. Henson works outside Kenton County, the department is in error in refusing to furnish him with copies of records that are precisely described and readily available within the agency.
On this issue, the Attorney General recently observed:
KRS 61.872(3)(a) and (b) states:
. . .
In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:
96-ORD-186, p. 3; see also, 97-ORD-3; 99-ORD-63; 99-ORD-67. [A requester who both lives and works in county where the records are maintained], falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. (Footnote omitted.) The statute recognizes no exception for individuals whose work hours correspond to the public agency's business hours, and we are not at liberty to read such an exception into the statute. If [a requester] is truly committed to the goal of agency accountability through records access, [he] may have to sacrifice a few hours of vacation or personal time in order to exercise his rights.
Nevertheless, early opinions of this office urge public agencies to "accommodate requesters whenever they can within the bounds of the efficient operation of their office." OAG 83-204, p. 4; compare OAG 86-24. "To require the requester to appear in person at the office of the agency" when his request is narrowly framed and the records can be easily accessed, "would not be more convenient to either party and would only inhibit the intended purposes of the Open Records Act. " Id. . . . Although [the public agency] is not legally obligated to do so, it may wish to consider mailing copies of these records upon receipt of prepayment for those copies.
00-ORD-211, p. 4-6.
The Covington Police Department must honor a request for copies of precisely described public records that are readily available within the department only if Mr. Henson's principal place of business is outside Kenton County, and only after he pre-pays a reasonable copying charge not to exceed ten cents per page, plus postage. 4 We urge the department to re-evaluate its policies in light of this holding, and to modify those policies in a manner consistent therewith if necessary.
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 proceedings.
Footnotes
Footnotes
1 The only exception to this rule is found at KRS 61.874(4)(b), permitting public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). Nevertheless, agencies may not deny access to records because they are requested for this purpose.
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2 Mr. Henson furnished this office with a copy of the envelope addressed to him from the City of Covington, and postmarked November 27, 2000. The department does not contest these allegations.
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3 The Covington Police Department does not object to public inspection of the reports, and we are therefore spared debate on the issue of access.
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4 Pursuant to KRS 61.874(3), the department "may prescribe a reasonable fee for making copies of nonexempt public records . . . which shall not exceed the actual cost of reproduction, . . . not including the cost of staff required." In Friend v. Rees, Ky. App., 696 S.W.2d 825 (1985), the court found ten cents per page to be a reasonable copying charge for standard hard copy records. Although the department may also recover the cost of mailing (KRS 61.872(3)(b)), it cannot require the submission of a stamped, self-addressed envelope. The Open Records Act does not contain authority for such a requirement.
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