Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Hurstbourne Acres violated the Open Records Act in the disposition of Christian Redman's undated requests for Commissioners Sally Price's and Dan Kuster's internet server IP addresses and all email and written correspondence relating to Mr. Redman or the Hurstbourne Acres Police Department. Mr. Redman is chief of the department. Having received no response to his requests, Mr. Redman initiated this appeal. We find that although the City of Hurstbourne Acres' failure to respond to Mr. Redman's request constituted a procedural violation of the Open Records Act, the city belatedly fulfilled its obligations under the Act by conducting a search of the city's recordkeeping systems, both electronic and hard copy, and confirming that no responsive email exists. Further, we find that the city is not required to disclose internet server IP addresses.
In response to this office's notification of receipt of Mr. Redman's appeal, the City of Hurstbourne Acres asserted that "the subject information was requested of two city commissioners, and not to the City of Hurstbourne Acres," and denied "hav[ing] copies of the requested documentation." The city acknowledged that, pursuant to KRS 61.870(1)(a), the records of the commissioners are subject to the Open Records Act because they are "local government officers," but gave no indication whether further action would be taken. Unable to determine from this response whether the agency intended to honor Mr. Redman's request, we posed this question to the city attorney. He responded:
City of Hurstbourne Acres has no such records. I don't know what Commissioners Kuster or Price have (I don't represent them individually).
The city's response to notification of receipt of Mr. Redman's appeal did not satisfy the procedural requirements of the Open Records Act, and its response to our subsequent inquiry was only minimally sufficient under the Act.
The city violated the procedural requirements of the Open Records Act, codified at KRS 61.880(1), by failing to respond in writing, and within three business days, to Mr. Redman's request. 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. 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.
The city maintains that "the subject information was requested of two city commissioners, and not to the City of Hurstbourne Acres." This did not relieve the city of any further obligation. Mr. Redman used the "City of Hurstbourne Acres Open Records Request Form." That form does not differentiate between records of the city and records of city commissioners. Pursuant to KRS 83A.085(3)(b), the city clerk is required to perform the duties "of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882." If Mr. Redman erred in tendering his requests to the city commissioners, the commissioners were obligated to immediately forward the requests to the city clerk. Alternatively, they were obligated to notify Mr. Redman in writing, on or before the third day after receipt of his requests, that those requests were misdirected and "furnish the name and location of the official custodian of the agency's public records." KRS 61.872(4) . "To hold otherwise," Kentucky's courts have suggested, "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged."
Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006).
The requester in the appeal before us is an employee of the City of Hurstbourne Acres. Pursuant to KRS 61.878(3), he enjoys a broader right of access to records that relate to him. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
Mr. Redman is, therefore, entitled to inspect and copy all records responsive to his request that relate to him regardless of whether one or more of the exceptions applies to those records. 1 Accord, 97-ORD-87 and 03-ORD-030.
In response to this office's July 5, 2012, inquiry, the city confirmed that it possesses no records relating to Mr. Redman or the City of Hurstbourne Acres Police Department on city computers, internet accounts, or other city recordkeeping systems. Assuming that the city conducted an adequate search under the standard first articulated in 95-ORD-96, it belatedly fulfilled its statutory obligations. At page seven of that decision, the Attorney General observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
95-ORD-96, p. 7; accord 04-ORD-242. At this office's prompting, the city conducted a search for records responsive to Mr. Redman's request maintained in or on the city's recordkeeping system. Absent proof that the city failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources, we are disinclined to question the city's good faith. We trust that the city directed its search not only to the first and most obvious places where responsive records could be located but to all places that might yield responsive records. Acknowledging that its proof in this regard is minimal, at best, we affirm its disposition of Mr. Redman's request.
Although the city failed to address Mr. Redman's final request, we find that he is not entitled to Commissioners Price's and Kuster's internet server IP addresses. An IP, or internet protocol, address "is the core of network functionality, providing for the movement of information within and across networks. " AVAYA Training Manual -1P Fundamentals (Course Number 0229T; Part Number 0229T-001.2.0.1; Issue 2.0). It is a unique identifier assigned to each device in a computer network "that [is] in some respects similar to a home address." Disclosure of the commissioners' IP addresses could expose the network to unauthorized access. Although Mr. Redman may not be prompted by improper motives in requesting these addresses, disclosure of the addresses to him would necessitate their disclosure to all open records requesters under the longstanding rule that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next."
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). Because the addresses do not relate to him, he does not enjoy an enhanced right of access to them under KRS 61.878(3). With regard to the commissioners' internet server IP addresses, he stands in the same shoes as any other open records requester.
In 95-ORD-121, this office acknowledged that "there is no 'catch-all' exception to the Open Records Act for records the disclosure of which would compromise significant agency operations or functions." 95-ORD-121, p. 4. We nevertheless recognized that an agency might invoke KRS 61.872(6) 2 to deny such a request "if release of the records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records or the information contained therein" or if the information "could be used to circumvent the law." See also 95-ORD-121 (affirming jail's denial of inmate request for policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); 97-ORD-26 (holding that nondisclosure of Kentucky State Police policy manual was justified on basis of KRS 61.872(6) to extent portions, if revealed, "would enable persons to impede the goals for which the policies and procedures were adopted" or could be used to "circumvent or violate the law"); 97-ORD-129 (affirming drug task force's denial of request for that portion of its manual dealing with the use of confidential informants); 99-ORD-83 (affirming Owensboro Police Department's denial of request for its Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city); 06-ORD-167 (holding that responsive financial records might be subject to redaction on basis of KRS 61.872(6)); 10-ORD-147 (recognizing that Oldham County Property Valuation Administrator properly denied credit card numbers on the basis of KRS 61.872(6)). Here, as in the referenced decisions, we believe that disclosure of the commissioners' internet server IP addresses would unreasonably burden the city by "forc[ing it] to overhaul an existing system each time the records were requested and released." The City of Hurstbourne Acres has no duty to honor this portion of Mr. Redman's request. Notwithstanding this conclusion, we remind the city that it is assigned the statutory burden of proof per KRS 61.880(2)(c), and it is incumbent on the city to articulate a legally recognized basis for withholding any public record.
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.
Distributed to:
Christian RedmanMichael BoltenJohn Frith Stewart
Footnotes
Footnotes
1 KRS 61.878(3) overrides the exceptions to the Open Records Act unless the requester wishes to access an examination, documents relating to ongoing criminal administrative investigations by the agency, or records made confidential by state or federal law within the meaning of KRS 61.878(1)(k) and (l).
2 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.