Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Richard Meadows initiated this appeal challenging the denial by the Louisville Metro Council of his July 23, 2014, request for a copy of all documentation, including e-mail communications, notes, etc. "for all the outward facing IP addresses and outward facing proxy server IP addresses," for all of the computers, including, but not limited to, "servers, desktop computer[s], laptop computers, tablets and smart phones owned, leased and operated by the [Council] in the offices of: the Louisville Metro Council Clerk, all 26 [Louisville Metro] Council Members, all [Council Members'] aides and clerks, and all other employees, interns, or volunteers of the [Council]." In a timely written response, Open Records Coordinator Lisa Franklin Gray denied Mr. Meadows' request on the basis of KRS 61.878(1)(m)1., quoting the language of that provision without further explanation. 1 However, upon receiving notification of Mr. Meadow's appeal from this office, Assistant Jefferson County Attorney Sarah Stewart Ashburner elaborated upon the agency's position. The Council asserted that, in addition to KRS 61.878(1)(m)1., the records in dispute are protected from disclosure under KRS 61.872(6), "which provides an exemption when production of the records sought constitutes an unreasonable burden on the agency."
In support of its position, the Council relied upon 12-ORD-153 (holding that IP addresses can be properly withheld under KRS 61.872(6)), noting that Mr. Meadows "runs a business located in Louisville known as the Hacker Hostel." If he is provided with the IP addresses of the Council and its staff, Ms. Ashburner observed, then he will have the location of Council email accounts, potentially giving him access to the entire network, and such information "could be used for criminal purposes or could threaten the safety of the public. Consequently, [the Council] will be forced to protect itself by revamping the system each time IP addresses are requested and released." For this reason, the Council argued that complying with Mr. Meadows' request for the IP addresses, or that of any other requester, would place an unreasonable burden on the agency. Based upon the reasoning found in 12-ORD-153, the Council's denial is affirmed on the basis of KRS 61.872(6).
"Although there is no 'catch-all' exception to the Open Records Act for records the disclosure of which would compromise significant agency operations and functions," the Attorney General noted in 04-ORD-058, this office has recognized "that a public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those 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 information contained therein." 95-ORD-121, p. 4; 04-ORD-058; 10-ORD-147. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6), which provides that "[i]f the application places an unreasonable burden in producing public records . . . , 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. " Id. In more general terms, "nondisclosure is warranted if the records could be used to circumvent or violate the law." Id. If the agency can establish, by clear and convincing evidence, that complying with a request for public records would place an unreasonable burden on it "because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies." Id.; 04-ORD-058; 10-ORD-147.
In 12-ORD-153, this office was asked to determine, in relevant part, whether the IP addresses of two city commissioners were subject to public inspection. The Attorney General reasoned as follows:
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 [the requester] 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). . . . With regard to the commissioners' internet server IP addresses, he stands in the same shoes as any other open records requester.
Id., pp. 4-5. Relying upon 95-ORD-121 and its progeny, this office concluded that, "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.'" 12-ORD-153, p. 6.
The instant appeal presents no basis for departing from this precedent. Accordingly, this office affirms the Council's denial of Mr. Meadows' request on the basis of KRS 61.872(6). Either party may appeal this decision 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:
Richard MeadowsH. Stephen OttLisa Franklin GraySarah Stewart Ashburner
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