Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
David Cross appeals the Bullitt County Detention Center's responses to multiple open records requests he submitted in July and August 2014. The first issue he raises is governed by KRS 61.872(6) which states that if an agency denies a request on the basis of an unreasonable burden, or the belief that the request is intended to disrupt essential functions, it must sustain its denial by clear and convincing evidence. The second issue Mr. Cross raises is governed by KRS 61.872 and KRS 61.874. KRS 61.872(3)(a) and (b) state that an open records applicant may access nonexempt public records by means of onsite inspection or by means of receipt of copies. KRS 61.874(2)(a) states that if the agency maintains the requested records in an electronic format, the records "shall be available for copying in either standard electronic or standard hard copy format, as designed a by the party requesting the records." The Bullitt County Detention Center violated the Open Records Act by failing to sustain the denial of Mr. Cross's August 21 request by clear and convincing evidence of an unreasonable burden or an intent to disrupt essential agency functions. The Detention Center also violated the Act by failing to present proof that the records to which Mr. Cross requested access could not be produced electronically.
On July 26, Mr. Cross submitted multiple requests for "copies" of records relating to the Detention Center's canteen and vending machines, agreeing to pay in advance "for the cost of copying and mailing," but reserving "the right for [sic] inspection. " In response, the Detention Center provided Mr. Cross with copies of the records he precisely described in his request and invited him to inspect documents responsive to his generally worded requests. Additionally, the Detention Center denied possession of records relating to drink vending machines, explaining that the only vending machine "is in the staff break room, is owned by the staff, and is stocked through personal staff funds." 1 On August 27, Mr. Cross inspected six boxes of records, characterizing the records produced as incomplete. Although Mr. Cross was dissatisfied with the results of his onsite inspection of the six boxes of records produced, we find no violation of the Open Records Act in the Detention Center's handling of his July 26 requests. Absent evidence that the Detention Center restricted his hours of inspection during its regular business hours, 2 failed to provide suitable facilities for inspection, 3 refused to make copies of inspected records at his request, 4 or attempted to impede inspection by producing voluminous nonresponsive records, 5, we affirm the Detention Center's response to Mr. Cross's July 26 requests.
On August 21, Mr. Cross submitted a request "to inspect all of the original records," including electronic records, of the Bullitt County Detention Center from January 3, 2013 to June 30, 2014 that related to the jail fund, inmate fund, and canteen fund. Additionally, he requested all financial reports and tax records for the period. The Detention Center denied this request on August 27. Citing KRS 61.872(6) the Detention Center asserted that Mr. Cross's request "to inspect the front and back of each check, the check books, and electronic records" was unreasonably burdensome. In supplemental correspondence, the Center argued that it was not legally obligated "to produce original records," noting that "[m]any of the records are maintained on a computer program and can only be produced on copy paper. " The Detention Center did not provide additional support for its argument that Mr. Cross's request was unreasonably burdensome or intended to disrupt essential agency functions.
KRS 61.872(6) authorizes public agencies to deny open records requests if the requests "place[] an unreasonable burden in producing public records" or if the agency "has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency. " Denial of the right of inspection under this provision must be supported by clear and convincing evidence, and the public agency that attempts to do so "faces a high proof threshold."
Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008). "[T]he 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. " Id. at 665. Moreover, the fact that the responsive records "are voluminous does not mean that it would necessarily be unreasonable [for an agency] to comply with an otherwise valid open records request." Id. at 666. The Bullitt County Detention Center presents no evidence, clear and convincing or otherwise, that Mr. Cross's requests are unreasonably burdensome or intended to disrupt its essential functions. "A bare allegation that a request is unreasonably burdensome or intended to disrupt essential functions does not satisfy the requirements of the statute." 10-ORD-203, p. 3 citing 06-ORD-177. The Detention Center's KRS 61.872(6) argument therefore fails.
Whether the Detention Center violated the Open Records Act by refusing to permit Mr. Cross to inspect "the originals" of the Center's banking records, financial reports, and tax records, is a closer question. Clearly, Mr. Cross is statutorily entitled "to inspect public records. " KRS 61.872(2). The Open Records Act does not distinguish between public records maintained in hard copy or electronic format in guaranteeing the right to inspect, but it is well established that an agency must protect its records from damage or alteration in the course of open records inspection. KRS 61.876(1). It is equally well established that, "if a public record contains material which is not excepted under [KRS 61.878(1)(a) through (n)], the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In discharging this duty to redact, the agency often creates a "duplicate" of the "original" record, makes appropriate redactions, and discloses the redacted record. Under these circumstances, the agency cannot disclose the original record without violating its statutory duty to redact "the excepted and make the nonexcepted material available for examination." The agency satisfies its duty under KRS 61.872(2) and (3), as well as KRS 61.878(4), by affording the requester access to the redacted copy of the original record.
If the original record is maintained in an electronic format and the requester designates that he wishes to access the records in electronic format, the agency must make the records available in standard electronic format. KRS 61.874(2)(a). If the record is maintained in an electronic format other than the standard electronic format, defined at KRS 61.874(2)(b) as "a flat file electronic American Standard Code for Information Interchange (ASCII) format, " KRS 61.874(2)(a) states that the record "may be provided in [an] alternative electronic format" if the alternative electronic format "conforms to the requester's requirements." See 14-ORD-148 (recognizing that, notwithstanding public agency's preference to provide access to electronic records in hard copy format, agency was required to provide access to electronic records "in ASCII or a mutually agreed upon alternative format" when requester designated a preference for the records in electronic format) . Mr. Cross designated a preference for access to the records identified in his August 21 request in an electronic format. The Detention Center is not obligated to convert records maintained only in hard copy to electronic records, 6 but acknowledges that "many of the records are maintained on computer program, " arguing that these records "can only be produced on copy paper. " The Detention Center offers no explanation for this non sequitur , and the Open Records Act provides no support for its position. Because the Detention Center fails to present proof that it is unable to honor Mr. Cross's request to access records "maintained on a computer program" in an electronic format, we find that its argument that it can only produce those records "on copy paper" also fails. The Detention Center should therefore make immediate arrangements for Mr. Cross to access all responsive records "maintained on a computer program" in standard electronic format, or an alternative electronic format that conforms to Mr. Cross's requirements, and the remaining responsive records not "maintained on a computer program" in hard copy.
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.
Footnotes
Footnotes
1 Mr. Cross does not dispute the Detention Center's responses to requests for records relating to vending machines.
2 Restricting hours of access for onsite inspection of nonexempt public records is prohibited by KRS 61.872(3)(a).
3 KRS 61.872(1) requires public agencies to provide suitable facilities for inspection of public records.
4 KRS 61.874(1) states that "[U]pon inspection, the applicant shall have the right . . . to obtain copies of" all nonexempt records.
5 Compare 02-ORD-150 and 07-ORD-105 (analyzing the agency's duty to "identify, segregate, and disclose" records responsive to an open records request under the duties generally assigned to it by KRS 61.872(1), (2), and (3)). See also, 12-ORD-017 (determining that the intentional "commingling of nonresponsive records with responsive records so as to create unnecessary impediments to effective inspection" constituted subversion of the intent of the Open Records Act).
6 See KRS 61.874(2)(a) declaring that "[a]gencies are not required to convert hard copy format records to electronic formats."