Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
This is an appeal by Mr. Gobel Newsome contesting the decision of the City of Shepherdsville denying his request for audio tapes of interviews between the Chief of Police, individuals named in Mr. Newsome's request, and any other individuals where the conversation was taped between November 12, 2001 and April 16, 2003. There are five (5) issues in this appeal: (1) Whether the request for the audio tapes placed an unreasonable burden on the City and was intended to disrupt other essential functions of city government; (2) Whether the audio tapes were exempt from disclosure under the exceptions for ongoing law enforcement investigations; (3) Whether the audio tapes were exempt from disclosure under the privacy exception; (4) Whether the audio tapes were exempt from disclosure because of pending litigation between Mr. Newsome and the City; and (5) Whether the City met its burden of explaining why the audio tapes were exempt from disclosure under issues 1, 2, 3 and 4 above. For the reasons that follow, we decide that the City failed to meet its burden to explain why the records are exempt from disclosure under the Open Records Law.
Mr. Newsome's request was hand-delivered on April 16, 2003. The City responded in writing by letter dated April 21, 2003. In its response to Mr. Newsome, the City stated that from November 12, 2001 to April 16, 2003, he made over thirty (30) Open Records requests to the City, made similar or identical requests on the same day, and came into City offices "making demands in a loud and attempted threatening manner". The City also stated, ". . . that these multiple requests for multiple records, require that most, if not all, must be reviewed and redacted under various exemptions to the Open Records law." The City contends that "This has placed and will continue to place an unreasonable burden upon the custodian or custodians so requested". Further, ". . . the repeated requests are intended to disrupt the functions of the City of Shepherdsville, not only the Clerk's Office and Police Department, but the Mayor's office as well." The City cites KRS 61.872 as the provision of the Open Records Act upon which it relies. Subsection (6) of that statute states as follows:
If the application (request) 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 a 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.
First, we point out that thirty (30) Open Records requests in a period of approximately eighteen (18) months is not per se burdensome under the Open Records Act. See 00-ORD-72. In its response to this appeal, the City points out that it has complied with all thirty (30) of Mr. Newsome's prior requests. The City adds that fulfilling the requests has cost the City more than $ 5,000.00 in personnel costs. In Exhibit B to the City's response to this appeal, it does appear that two requests were made on December 26, 2001. The second request on that date appears to have added to the first request rather than duplicated it. In all, there appear to have been fifteen (15) requests made by Mr. Newsome to City Hall, and fifteen (15) requests made to the Police Department. See Exhibits A and B to City's response to appeal dated April 30, 2003. The list of requests contained in the City's Exhibit A does not describe the documents requested. The requests made to the Police Department described in Exhibit B identify the records sought as video-audio tapes and documents. The requests for the video-audio tapes are for one tape each and some of them appear to be duplicate requests. There are also requests for daily activity logs, a call log, a 48-hour notice, and for a subpoena. These requests do not appear to us to be unreasonable insofar as the City describes them in Exhibit B. We cannot express an opinion either way with regard to the requests listed on Exhibit A since the documents are not identified. The exhibits show that Mr. Newsome specifically identified the record he wished to have disclosed. Without more detail from the City, we cannot say that Mr. Newsome's past requests placed an unreasonable burden upon the City or were intended to disrupt the operations of the city government. There is no explanation as to why it cost $ 5,000.00 ( $ 167.00 each) to reply to the requests. In his appeal, Mr. Newsome denies that he has behaved in an inappropriate manner and points out that because he has suffered a loss of hearing, he tends to speak in a loud voice. He also claims he has no intention of disrupting the operations of the City government.
The statute requires clear and convincing evidence to establish that an Open Records request is burdensome or that repeated requests are intended to disrupt other essential functions of a public agency. We decide that the City has failed to establish by clear and convincing evidence that Mr. Newsome's request should be denied as unreasonably burdensome or because it was made with the intent to disrupt the essential functions of the city government.
Next the City states that the audio tapes:
. . . may include information of a personal nature the disclosure of which would constitute an unwarranted invasion of privacy. Records from law enforcement agencies have the potential of resulting in premature release of information, and may be subject to ongoing investigations. Every tape would require the interviewing officer or officers to listen to the tape to determine whether or not there are privacy issues, informant issues, ongoing investigation issues, juvenile matters, or records, the release of which may be prohibited by state or federal law or regulation.
In its response to this appeal, the City does not repeat its contention that the audio tapes "may include information of a personal nature and that the premature release of information may be subject to ongoing investigations." Because these two issues were mentioned in support of its initial denial we will address them. The personal privacy exception of the Open Records Act is contained at KRS 61.878(1)(a). In order to use the exception, the City has the burden to explain how the exception applies to the records sought. KRS 61.880(1) and Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). The same applies to the exception for ongoing investigations of law enforcement agencies contained at KRS 61.878(1)(h). Although the City mentioned in their initial response to Mr. Newsome some language from the statute, there is no explanation of how the exceptions apply to the audio tapes requested. The City does not state that the records sought include personal information or that there is an ongoing law enforcement investigation. Instead, the City states that the auido tapes "may include information of a personal nature" and that "[r]ecords from law enforcement agencies have the potential of resulting in premature release of information and may be subject to ongoing investigation." The law places a duty on the City to review the audio tapes and separate material exempt from disclosure. KRS 61.878(4). The City's initial response indicates that this was not done. We are of the opinion that this is not enough to make a determination that the records sought meet those exceptions and may be withheld by the City on those grounds.
Finally, in both its initial response and in its response to this appeal, the City relies on pending litigation with Mr. Newsome as a reason to withhold the video tapes. The pertinent provision of the Open Records Act states:
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[.]
KRS 61.878(1).
The statute then enumerates the exceptions to the rule that public records are open to the public.
This provision only applies to records that cannot be inspected without a court order. It does not affect the duty of the City to disclose public records that do not require a court order to be inspected. Kentucky Lottery Corp. v. Stewart, Ky., 41 S.W.3rd 860 (2001). Accordingly, we decide that the City violated the Open Records Act by denying access to the audio tapes requested. The City had a duty under the Act to review the tapes, separate excepted material, if any, explain how the exceptions claimed applied to the records withheld, and disclose those portions of the audio tapes that are not exempt from disclosure under the Act. See KRS 61.878(4), KRS 61.880(1), and Alig at 858.
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.
Gobel Newsome302 Arnold LaneShepherdsville, KY 40165
Norman R. Lemme, AttorneyCity of ShepherdsvilleP. O. Box 400170 Frank E. Simon AvenueShepherdsville, KY 40165
Ronald Morris, ChiefShepherdsville Police DepartmentP. O. Box 1712Shepherdsville, KY 40165