Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jessamine County Fiscal Court subverted the intent of the Open Records Act, short of denial of inspection, 1 by failing to afford Michael Hurst timely access to the personnel records he requested in a letter dated November 26, 2013. That request reached the fiscal court on November 27, 2013. Additionally, we are asked to determine whether the fiscal court presented clear and convincing evidence of an unreasonable burden justifying its invocation of KRS 61.872(6) as the basis for partially denying his request for "grievances, complaints, or other communications relaying concerns related to E-911, its staff, and/or management." We find that the fiscal court subverted the intent of the Act by delaying access to personnel records and violated the Act by partially denying his request for grievances, complaints, and other communications expressing concerns about E-911 employees without presenting clear and convincing evidence of an unreasonable burden. We also find that the fiscal court violated KRS 61.880(1) in denying Mr. Hurst access to certain records without citation to the appropriate exemption or an explanation of how the exemption applied to the records withheld.
Although neither Mr. Hurst nor the fiscal court present documentary proof to this office, they agree that Jessamine County Judge/Executive William Cassity issued a written response to Mr. Hurst's request on November 27 in which he acknowledged receipt of that request and indicated that a search for responsive records was underway. Mr. Hurst alleges and the fiscal court does not dispute, that Judge Cassity did not provide a detailed explanation for postponing Mr. Hurst's access to responsive records or specify a date on which the records would be available. 2 By letter dated December 5, Mr. Hurst questioned the fiscal court's inaction, and on December 9 the fiscal court issued its response to Mr. Hurst's request. That response, in which the fiscal court summarized each subpart of Mr. Hurst's request and the fiscal court's disposition, follows:
1) Written Recommendations for disciplinary action against Michael Hurst are available.
2) Written Notification to Michael Hurst that contained the time and date that the recommendation for disciplinary action would be presented to Fiscal Court is available.
3) Personnel files for:
4) All grievances, complaints, or other communications relaying concerns related to E-911, its staff, and/or management. Some of these documents are available. These requests were not restricted by any time restraints which might make them more manageable. Although this request may possibly be "unreasonably burdensome" as described in KRS 61.872(6), we have attempted to comply with the request.
5) All personnel recommendations to Fiscal Court regarding E-911 employees are available.
6) Any other documents, emails, communications, etc. related to Michael Hurst that occurred in the last two (2) years not covered by an above request are available.
On December 12, Mr. Hurst inspected the records the fiscal court agreed to produce but submitted written objections to the omission of Dianna Raiza's and Lynne Sexton's personnel files. Judge Cassity responded on December 16, advising Mr. Hurst that "[a]ll . . . requests [sic] were provided" to him. Dissatisfied with the fiscal court's response to his request, Mr. Hurst initiated this appeal, questioning the decision to withhold personnel files and to invoke KRS 61.872(6) without presenting clear and convincing evidence of an unreasonable burden.
The fiscal court defended its handling of Mr. Hurst's request in supplemental correspondence directed to this office, insisting that "[f]or each item that was not made available, Mr. Hurst was provided a detailed explanation of the cause for delay or the exemption upon which the denial was based." With reference to the two personnel files withheld, the fiscal court explained that Mr. Hurst was advised that the employees who objected to disclosure "would be allowed ten (10) business days to file a formal objection in circuit court," but that Mr. Hurst attempted to initiate an appeal 3 before ten days had elapsed. 4
With reference to the disposition of Mr. Hurst's request for grievances, complaints, and other communications "relaying concerns" about E-911 employees, the fiscal court asserted that, "as stated in our response to the records request, this request is 'unreasonably burdensome' as described by KRS 61.872(6)." Noting that Mr. Hurst's request "is not restricted by any time restraints," the fiscal court explained:
In order to fully comply with Mr. Hurst's request, this agency would be required to produce all grievances, complaints or other communications relaying concerns related to E-911, its staff, and/or management dating back to the beginning of 911 services in Jessamine County twenty-two (22) years ago in 1992, when the agency was formed. The total number of present and past employees of Jessamine County 911 is estimated to be between 100-200 employees.
This request is "unreasonably burdensome" as defined in KRS 61.872(6) for several reasons. First, the personnel files of many of the past employees are no longer held on-site, those files would have to first be located in the county archives. Second, although the size of each employees personnel file varies, most contain hundreds of pages. The only way the fiscal court could produce all of the documents responsive to Mr. Hurst's request is by going through every employee's personnel file, page-by-page, to find documents that may be within the broad scope of this request.
In addition to being nonspecific as to time frame, the fiscal court maintained that Mr. Hurst's request was nonspecific as to subject, characterizing that portion of the request relating to "communications relaying concerns" about E-911 employees as an "'open-ended any-and-all records that relate type of request,' which was criticized by the Attorney General in 96-ORD-101 and 99-ORD-14." Such requests, the fiscal court continued, implicate both exempt and non-exempt records that must be carefully reviewed before they are produced for inspection. Because the request "lack[ed] reasonable scope in time and subject matter and because some of the requested records are statutorily exempt, " the fiscal court estimated that "fulfilling Mr. Hurst's request will occupy staff for an estimated 600 hours" based on "an average of 2-5 hours paging through each [past and present] employee's personnel file" and 100 hours "for locating archived personnel files" and redacting exempt information. 5 The fiscal court nevertheless "attempted to comply with the request by providing all grievances and complaints over the past two years." These efforts, along with its other efforts at compliance with the requirements of the Act, were not sufficient under the law.
A. Fiscal Court's failure to afford requester timely access to public records
The Jessamine County Fiscal Court subverted the intent of the Open Records Act short of denial of inspection, by postponing access to nonexempt records. Mr. Hurst's request reached the county on November 27, 2013. In a response issued the same day, the fiscal court acknowledged receipt of the request and indicated that responsive records were being gathered. Mr. Hurst heard nothing more from the fiscal court until December 9. On that date, the fiscal court notified Mr. Hurst that a number of records were available for inspection, but that two personnel files would not be available for ten days. The fiscal court explained that the employees to whom the files related objected to disclosure and would "be given the opportunity to file a formal objection with the circuit court." The record on appeal reflects that those files were "made available for Mr. Hurst's inspection as a supplement to [the fiscal court's] original response . . . [a]s soon as it was determined that [the employees] had not taken the action necessary to file a formal objection in circuit court." The record on appeal does not reflect on what date this occurred or contain a document confirming that date.
In those cases where a public agency cannot produce responsive records within three business days, KRS 61.872(5) requires the agency to provide a detailed explanation of the cause for delay and a statement indicating the earliest date on which the records will be available. Thus, in numerous open records decisions issued in the past the Attorney General has determined that "'timely access' to public records is defined as 'any time less than three days from agency receipt of the request[, and] any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay and a written commitment to release the records on the earliest date certain.'" See 12-ORD-97 and authorities cited therein. It is this written explanation that must be issued on the third business day and not a mere acknowledgement of receipt of the request. The fiscal court's November 27 letter to Mr. Hurst did not contain a written explanation of the cause for delay or a statement of the date on which the records would be available. The fiscal court did not, to this extent, comply with the legal requirement found at KRS 61.872(5).
Whether the explanation belatedly advanced by the fiscal court in support of the additional delay in the production of the personnel files was sufficient under the law is a closer question. The fiscal court did not cite, but appears to rely, on
Beckham v. Board of Education of Jefferson County, 873 S.W.3d 575 (Ky. 1994), in support of its decision to postpone access to employee personnel files because those employees objected to disclosure. Beckham establishes the right of a person affected by an agency's decision to release records to assert a claim for nondisclosure of those records in circuit court under authority of KRS 61.882(1). In a subsequent opinion interpreting Beckham , the Supreme Court emphasized that it is the affected person who, upon receipt of notice that a request has been made, must "take such further action as he deems appropriate."
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, 941 S.W.2d 469, 473 (Ky. 1997). In an open records decision issued shortly after the latter opinion, the Attorney General held that "[t]he procedural requirements of the Open Records Act are not indefinitely suspended while [the person affected by disclosure] weighs his options." 98-ORD-24, p. 4; see also 02-ORD-214 and 08-ORD-023.
Neither KRS 61.882(1) nor Beckham address the appropriate time frame within which the person affected by disclosure of records must assert a claim for nondisclosure in circuit court. More importantly, however, neither relieves the agency of its duties under KRS 61.880(1). While ten days may represent a reasonable time frame for agency notification of the person affected and that person's assertion of a circuit court claim for nondisclosure, the record before us is silent on the duration of the delay between the Jessamine County Fiscal Court's notification to Ms. Raiza and Ms. Sexton and the date on which their personnel files were disclosed to Mr. Hurst. If that delay exceeded ten days, it represented an undue delay. If, in addition to any delay beyond ten days, we include the lapse of time between receipt of Mr. Hurst's request on November 27 and the final response issued on December 9, we must conclude that the fiscal court failed to afford Mr. Hurst timely access to the personnel files. As noted, this error was exacerbated by its failure to provide a timely written response containing the detailed explanation of the cause for delay and the statement of the earliest date on which the records would be available contemplated by KRS 61.872(5).
B. Fiscal Court's failure to adduce clear and convincing evidence of an unreasonable burden
Turning to the issue of unreasonable burden, we note that in 12-ORD-152 the Attorney General determined that the Jessamine County Fiscal Court failed to adduce clear and convincing evidence of its burden in denying a request as required by KRS 61.872(6). A copy of that decision is attached hereto and incorporated by reference. In contrast to the fiscal court's response in that appeal, here the fiscal court attempts to describe what its actual burden would be. However, given the "high proof threshold" KRS 61.872(6) imposes, we find this attempt unpersuasive.
Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008).
Mr. Hurst's request was not "open-ended." He sought grievances, complaints, or other communications expressing concern about E-911 employees. That request was sufficient for onsite inspection under the standard articulated in Chestnut , 6 as opposed to the pre- Chestnut standard found in 96-ORD-101 and 99-ORD-74 upon which the fiscal court relied. He was not required to restrict his request to named individuals or limit his request to a specific time frame. Given the fact that the retention period for complaints and disciplinary actions in the personnel file of a local government employee is "destroy five years after termination of employment," 7 sound records management practices establish a limited time frame for responsive records in the personnel files of former employees. If the fiscal court has not properly managed the personnel files of its former employees, it cannot "rely on [this] inefficiency in its own recordkeeping system to thwart an otherwise proper open records request." Chestnut at 666. Nor can it rely on the place of storage or duty to redact 8 as proof of an unreasonable burden. See Chestnut, above at 666, (recognizing that "the agency's method of organizing its files" is "an insufficient reason to exempt it from open records disclosure, " and that the "winnowing process required" by KRS 61.878(4) does not "rise to the level of an unreasonable burden" ).
Mr. Hurst did not request access to all nonexempt records in past and present E-911 employee's personnel files, but instead requested complaints, grievances, or other communications relaying concerns about those employees. The fiscal court need not review the entire file for exempt and nonexempt records but need only pull complaints, grievances, or similar communications, all nonexempt, 9 from those files and make them available for his inspection. The need for redactions, if any, should be negligible since such records generally originate outside the fiscal court and are unlikely to contain social security numbers, dates of birth, home addresses, etc. If properly managed, under the established records retention schedule, any such records that relate to former employees who left the agency's employ more than five years ago should no longer exist, further decreasing the burden on the agency. The fiscal court's estimate of 600 hours of staff time necessary to fulfill Mr. Hurst's request is therefore exaggerated. "The obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Chestnut at 665. We therefore find that the Jessamine County Fiscal Court's reliance on KRS 61.872(6) was misplaced and that the fiscal court violated the Open Records Act in partially denying this portion of Mr. Hurst's request.
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:
Michael HurstWilliam Neal CassityHeather Holman
Footnotes
Footnotes
1 KRS 61.880(4).
2 KRS 61.872(5).
3 Mr. Hurst's December 11 appeal was returned to him pursuant to 40 KAR 1:030 Section 1 because it did not contain the required documentation. He perfected his appeal by submitting the required documentation on December 30, 2013.
4 In response to questions propounded to the fiscal court under authority of KRS 61.880(2)(c), the fiscal court later advised that Lynne Sexton's and Dianne Raiza's personnel files were "made available for Mr. Hurst's inspection as a supplement to our original response . . . ." The fiscal court did not indicate on what date the files were made available, indicating only that the files were made available "[a]s soon as it was determined that Ms. Sexton and Ms. Raiza had not taken the action necessary to file a formal objection in circuit court."
5 In response to questions propounded to the fiscal courts under authority of KRS 61.880(2)(c), the county indicated that social security numbers, copies of driver's licenses, birth certificates, medical excuses and doctor's notes, beneficiary information, marital status, home phone and cell phone numbers, emergency contact information, documentation of medical issues that relate to job performance, confidential counseling completed by the employee, and medications were redacted. In support of these redactions, the fiscal court belatedly invoked KRS 61.878(1). That statute is prefatory in nature and does not constitute an exemption to the Open Records Act. It provides:
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[.]
Thus, in Department of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010), the Kentucky Supreme Court declared that KRS 61.878(1) "is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n) . . . [and] not an exception to an agency's duty to disclose nonexempted records." (Emphasis in original.) The fiscal court's response was deficient because it did not contain a citation to the specific exception authorizing nondisclosure of the redacted information or an explanation of how the exception applies to the information withheld. KRS 61.880(1). We assume, however, that it was the fiscal court's intention to invoke KRS 61.878(1)(a).
In addition to these redactions, the fiscal court responded that "email communications protected by Attorney-Client Privileges" were withheld under authority of "KRS 61.878." This response was similarly deficient. Assuming, arguendo , that the records withheld qualified for the privilege, and were properly withheld, the fiscal court should have invoked KRS 61.878(1)(l), incorporating KRE 503 and explained how these provisions apply to the records withheld. See Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2008) and 12-ORD-062.
6 The request was, thus, "adequate for a reasonable person to ascertain [its] nature and scope." Chestnut at 661.
7 Local Government General Records Retention Schedule, Series L5034 (enclosed).
8 KRS 61.878(4).
9 The vast weight of legal authority supports the public's right of access to complaints leveled against public agency employees. See, e.g., Palmer v. Driggers , 60 S.W.3d (Ky. App. 2001) (recognizing that a complaint involving a public employee "presents a matter of unique public interest").