Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Fleming County Board of Education ("FCBE") violated the Open Records Act in denying a request on the grounds that it was intended to disrupt its essential functions, and in denying requests for financial records. We find that FCBE did not meet its burden to establish by clear and convincing evidence that the requests were intended to disrupt its essential functions. FCBE did not violate the Open Records Act in denying requests for "all financial records," but did violate the Open Records Act in denying requests for specific financial documents, including bonds, certificates of deposit, and reports pertaining to specific funds.
BACKGROUND
Minnie McCord ("McCord") submitted an open records request to FCBE on Dec. 10, 2015. McCord stated:
1. I would like to inspect Financial Records for the years 2008-2013, including detailed Munis reports and/or other financial records of the Fleming County Board of Education for the years 2008-2013 .
2. If the following are not part of the detailed financial records between 2008-2013 , Inspect the detailed records maintained under the Fleming County School District Finance Corporation for the years 2008-2013, AND the detailed records of the Fleming County School District KSFCC for the years 2008-2013.
3. Inspection of bonds issued to the Fleming County School District Corporation, 2010 R to the Fleming County School District Finance Corporation in the amount of $ 2,875,000, Issue of 2011 Fleming County School District Finance Corporation in the amount of $ 2,665,000, Issue of 2012 K Fleming County School District in the amount of $ 1,000,000, Issue of 2013 K Fleming County School District in the amount of $ 157,950, Issue of 2013 K Fleming County School District in the amount of $ 330,000.
4. Inspection of the district's temporary investments comprised of certificates of deposit held at various banks located within the county, the coverage of FDIC insurance and collateral agreements held by pledging bank's trust depart in the district's name for the years 2008-2013.
5. Inspection of Governmental Funds, Refunding Bonds, Revenue Bonds including Qualified School Construction bonds and Payments to Escrow Agents, along with detailed Escrow Agent information for the years 2008-2013.
6. Munis and/or other reports on Fund 310 Capital Outlay for 2008-2013
7. Munis and/or other reports on Fund 320 in the building fund, FSPK for 2008-2013.
8. Inspection of any governmental securities purchased between 2008-2013.
FCBE responded to McCord's request on Dec. 16, 2015, stating:
Superintendent Creasman, as custodian of records, has reason to believe that your repeated requests since November 2014 are intended to disrupt the other essential functions of the Fleming County Schools, and refuses to permit your inspection or to provide copies of the records sought in your December 10, 2015, letter, and otherwise asserts that the request places an unreasonable burden on the agency.
. . . In June 2015, you made a request for numerous records and a response letter was sent to you . . . advising you of when the requested records would be available for your inspection or copying. . . . You have never gone to the Board office to review those records . . . . Your current request would require an extensive amount of time to identify responsive records and prepare them in a manner which would facilitate your inspection. Due to your previous act of having caused significant staff time to be expended gathering records only for you to decline the opportunity to inspect them causes the School District to conclude that you are making requests for large volumes of archived records solely in an effort to monopolize the time of School District employees, and not due to any serious desire to review the records.
. . .
Contributing to the foregoing determination is the fact you are currently maintaining a lawsuit against the Board and/or its officers or employees, and you have repeatedly sought an audience with the members of the Board of Education relating to your current litigation and relating to your threat to bring some manner of criminal charges or civil litigation against current or former employees, officers, and agents of the board in relation to events which transpired during your employment with the School District. . . . Your record request was received by Dr. Creasman the same date you wrote to me seeking an audience with the Board of Education for the purpose of discussing a negotiated settlement of your legal complaints. . . . As discussed in 15-ORD-015, when extensive record requests coincide with litigation or threats of litigation against any agency, and where the requester indicates a willingness to "move on" and leave the agency alone in exchange for the payment of some money, there is sufficient evidence that the requests are made with the intent to disrupt other essential functions of the agency. . . .
FCBE further stated that "your request is otherwise submitted to be unreasonable" on general grounds that the requests seek "all records of that agency, of whatever type, for a five year period." FCBE concluded that McCord's "request is not intelligible; is in part a request for information rather than a request for records; and would impose an unreasonable burden on the agency because of the breadth of the requests and the lack of specificity." 1
McCord initiated this appeal on Dec. 22, 2015. McCord stated that "I believe that the decision to deny my request is not based on the reason of "harassment" as stated in Mr. Chenoweth's letter, but rather to delay or impede my access to the information in regards to litigation and the financial mismanagement of the school district. " 2 FCBE responded on Jan. 5, 2016, incorporating its response to McCord's request, and further stating:
The School District's primary response was that McCord's repeated, voluminous requests were intended to harass the School District and to interfere with other essential operations of the School District. The secondary response . . . was that the request placed an unreasonable burden on the agency. Wrapped up in this second argument was the explanation that some of McCord's requests were unintelligible, vague, and/or overly broad, and therefore were not proper requests . . . .
. . . In response to the first category of McCord's requests, . . . the phrase "financial records" does not self-define, such that this should be interpreted to be akin to a request for "any and all records" . . . . Even McCord's request for "detailed Munis reports" is not specific, as Munis is a software accounting program from which countless reports can be generated, depending on what information is sought. . . .
In the second category of McCord's request, she essentially seeks every record relating to the Fleming County School District Finance Corporation, a non-profit entity formed in 2011 as authorized by KRS 162.385(1). . . . Certainly it is not a proper record request to seek from an agency "every record" in its possession for a multiple year period. . . . McCord seeks all records relating to the Fleming County School District KSFCC, a non-existent entity. The Kentucky School Facility Construction Commission (SFCC) is a creation of the General Assembly ( see KRS 157.671(1)), and is a completely separate agency from the Board of Education of Fleming County.
The scope of what records are sought by the third category of McCord's request simply cannot be ascertained. . . . The Finance Corporation issues bonds--bonds are not issued to it. See KRS 162.385(1). Moreover, the bonds issued by the Finance Corporation are in the hands of the purchaser (s) of the bonds, not in the hands of the Board of Education or of the Finance Corporation. . . .
Similarly the various investments and funds referenced in the fourth, fifth, and eighth categories of McCord's request would likely be listed or otherwise identified on the Board of Education's annual financial report, but McCord seeks to inspect the investments, funds, bonds, etc. themselves . . . . Within the fourth category of her request, McCord seeks information regarding banks with which the Board of Education transacts business, and within the fifth category of her request, McCord seeks information about the Board of Education's escrow agent. Your office has regularly held that the Open Records Act does not require agencies to respond to requests for information.
The sixth and seventh categories of McCord's request would not be objectionable but for McCord's inclusion of the phrase "and/or other reports." While a Munis report might exist or could easily be generated to show balances, deposits, and withdrawals relating to the two specified funds, the request for "other reports" causes this request to . . . seek[] "any and all" records . . . .
ANALYSIS
FCBE generally objects that McCord's requests are made for the purpose of disrupting the essential functions of the agency. KRS 61.872(6) provides that "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. " As evidence for its claim that McCord's requests are intended to disrupt the agency, FCBE states that McCord had once previously requested voluminous records and failed to pick them up, and McCord's repeated requests to settle her litigation. However, "repeated requests to inspect the records of a public agency alone do not . . . amount to harassment . . . . We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances." 14-ORD-044.
FCBE cites to 15-ORD-015 to establish that where extensive requests are used to try and coerce an agency into settlement of litigation, the requests are made with the intent to disrupt the agency. In 15-ORD-015, we addressed the standard for when requests are sufficient to infer intent to disrupt an agency:
While no single factor is dispositive on the unique facts presented, when viewed collectively the number and partially duplicative nature of the requests, the volume of records implicated and the necessity of redacting information protected under federal and state law, his previous failure to promptly render payment for copies provided in response to a request(s), and his willingness to discontinue making requests in exchange for a large sum of money, validate the Board's position that Mr. Bonds' "repeated requests are intended to disrupt other essential functions of the agency."
Id. However, in 15-ORD-015, the requester's "16th request seeks almost 2000 emails, some consisting of multiple pages, on top of the approximately 17,000 pages of records you have previously requested," and the requester also failed "to pay for records previously requested after repeatedly assuring my client and I that payment for same would be forthcoming and redacted copies should be prepared." Id. The requester in 15-ORD-015 had made fifteen prior requests for 17,000 pages of records, and had failed to pay for records after requesting that they be redacted. Here, McCord has made only one prior request, and since she has not sought copies, but only inspection, she has not promised and failed to deliver any payments. We understand FCBE's frustration, given McCord's previous failure to review records that its staff took significant time to prepare for inspection. However, this is insufficient for clear and convincing evidence of intent to disrupt agency activities. Although Ms. McCord's records requests and demands to settle litigation may rise to the level of clear and convincing evidence at some point, they do not at the time of the present appeal. Accordingly, we do not find that McCord's requests are intended to disrupt the essential functions of FCBE at this time.
Turning to the merits of McCord's appeal, all of McCord's requests are requests for inspection, and not for copies. KRS 61.872(2) provides that "any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. " "Nothing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). The request need only be "adequate for a reasonable person to ascertain the nature and scope of [the] open records request." Id. However, "blanket requests for information on a particular subject without specifying certain documents need not be honored." 14-ORD-181. We deal with each of McCord's requests in turn.
1. Financial Records of FCBE and Munis Reports for 2008-2013
McCord's first request is for "financial records for the years 2008-2013, including detailed Munis reports and or other financial records of the Fleming County Board of Education for the years 2008-2013." The first part of the request asks for financial records for a six-year period. This is a blanket request for information. However, McCord further specifies that she also wants "detailed Munis reports." FCBE states that Munis is a database which can generate a variety of reports depending upon the information sought. McCord did not specify which or what type of Munis reports she requested, and therefore her request was not adequate for a reasonable person to ascertain the nature and scope of the request. Accordingly, FCBE did not violate the Open Records Act in denying McCord's first request.
2. Financial Records of the Fleming County School District Finance Corporation and KSFCC .
McCord's second request is for "the detailed records maintained under the Fleming County School District Corporation for the years 2008-2013, AND the detailed records of the Fleming County School District KSFCC for the years 2008-2013." McCord's request pertaining to the Fleming County School District Corporation ("Corporation") is a blanket request for all of its documents for a six-year period. FBCE states that there is no Fleming County School District KSFCC, as the Kentucky School District Facility Construction Commission is a state agency. KRS 157.617(1). Accordingly, FCBE did not violate the Open Records Act in denying McCord's second request.
3. Bonds Issued to the Fleming County School District Corporation .
McCord's third request is for inspection of bonds issued to the Corporation, and she lists the series and the amounts of the specific bonds she wishes to inspect. FCBE states that the Corporation issues bonds instead of having bonds issued to it, and that the bonds are in the hands of the purchasers. In this case, McCord has adequately specified the documents she wishes to inspect by identifying the specific bonds by their amounts and numbers. Even if the Corporation issued the bonds rather than received them, and any original bonds issued may be in the possession of the purchasers, presumably the Corporation would still maintain responsive copies of the bonds it issued for hundreds of thousands or millions of dollars. In Chestnut, 250 S.W.3d 655, the court stated that an open records request "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." Id. at 662. FCBE cannot evade production by interpreting McCord's request to pertain only to original bonds, when McCord did not so specify. McCord's request was adequate for a reasonable person to ascertain its scope in that she identified the specific bonds she wanted to inspect.
"Generally speaking, the financial and operational records of a public agency are open for inspection. " 10-ORD-140. This includes "'evidence of Certificates of Deposit, Money Market Certificates, Stocks, Bonds, Savings Accounts (in whatever form) and any other evidence of 'financial' assets." Id. (quoting OAG 89-91). Any copies of specifically identified bonds requested by McCord are thus subject to the Open Records Act, and FCBE is required to produce them unless otherwise exempt. To the extent FCBE withheld any responsive copies of the bonds specified by McCord, FCBE violated the Open Records Act.
4. Certificates of Deposit, FDIC Insurance Coverage, and Collateral Agreements .
McCord's fourth request is for "certificates of deposit held at various banks located within the county, the coverage of FDIC insurance and collateral agreements held by pledging bank's trust depart[ment] in the district's name for the years 2008-2013." This request is sufficient for a reasonable person to ascertain its scope. In its response to McCord's appeal, FCBE replies only that the investments "would likely be listed or otherwise identified on the Board of Education's annual financial report, but McCord seeks to inspect the investments . . . themselves," and that "McCord seeks information regarding banks . . . . The Open Records Act does not require agencies to respond to requests for information." As stated above, the financial records of a public agency are open for inspection. FCBE cites to no authority that inspection of a list of the investments is a sufficient substitute. Further, FCBE is correct that "requests for information, as opposed to records, are outside the scope of the open records provisions . . . . Public agencies are not statutorily obligated under the Open Records Act to honor requests for information as opposed to requests for public records. " 15-ORD-069. However, there is no request for information in McCord's fourth request; McCord's fourth request seeks only documents. Accordingly, in not making responsive financial documents available for inspection, FCBE violated the Open Records Act.
5. Inspection of Governmental Funds, Refunding Bonds, Revenue Bonds, School Construction Bonds, and Escrow Agent Information .
McCord's fifth request is for inspection of "Governmental Funds, Refunding Bonds, Revenue Bonds, School Construction Bonds including Qualified School Construction Bonds and Payments to Escrow Agents, along with detailed Escrow Agent information for the years 2008-2013." In its reply to McCord's appeal, FCBE states only that "within the fifth category of her request, McCord seeks information about the Board of Education's escrow agent. . . . The Open Records Act does not require agencies to respond to requests for information." As stated above, the financial records of a public agency are open for inspection, and McCord's requests for bonds for specific purposes during a limited time period is sufficient for a reasonable person to ascertain the scope of her request. However, McCord requests "governmental funds, refunding bonds, revenue bonds," and "school construction bonds." FCBE does not state whether it could identify what McCord meant by such bonds. To the extent FCBE can identify the bonds McCord requests, it is required to produce them. McCord also seeks "detailed Escrow Agent information, " and as stated above, an agency is not required to respond to a request for information. Accordingly, FCBE did not violate the Open Records Act in not responding to McCord's request for "detailed Escrow Agent information." However, the fact that part of the request is a request for information does not justify FCBE's refusal to respond to the other requests for documents in McCord's fifth request. Accordingly, to the extent FCBE can identify the types of bonds requested by McCord, it is required to produce them.
6. Munis and Other Reports on the Fund 310 Capital Outlay and Fund 320 in the Building Fund .
McCord's sixth request is for "Munis and/or other reports on Fund 310 Capitol Outlay for 2008-2013," and her seventh request is for such reports "on Fund 320 in the building fund, FSPK for 2008-2013." In its response to McCord's appeal, FCBE states that "the sixth and seventh categories of McCord's request would not be objectionable but for McCord's inclusion of the phrase 'and/or other reports,'" which "causes this request to venture into the same prohibited territory of essentially seeking 'any and all' records." FCBE effectively concedes that McCord's request for Munis reports of the "Fund 310 Capitol Outlay" and "Fund 320 in the building fund" are valid requests, and contends only that "other reports" relating to the funds is too vague. McCord's sixth and seventh requests seek reports that relate to specific, identifiable funds, and are not blanket requests comparable to her request for "all financial records." Accordingly, in denying McCord's requests for Munis and other reports pertaining to specific funds, FCBE violated the Open Records Act.
7. Governmental Securities
McCord's eighth request seeks "governmental securities purchased between 2008-2013." In its response to McCord's appeal, FCBE incorporates its response to McCord's fifth and sixth requests that the documents would be listed on the annual financial report. As stated above, listing on a financial report is not a sufficient replacement for the documents themselves. McCord's request for governmental securities purchased during a specific time frame is sufficient for a reasonable person to ascertain its scope. Accordingly, in denying McCord's request for governmental securities, FCBE violated the Open Records Act.
SUMMARY
In summary, FCBE did not meet its burden of proof to establish that McCord's requests were intended to disrupt its essential functions. FCBE did not violate the Open Records Act in denying McCord's requests for all of the financial records of the FCBE and the Fleming County School District Finance Corporation. FCBE violated the Open Records Act in denying McCord's requests for specific financial documents for a limited time period, including bonds, certificates of deposit, and securities purchased, and for reports on specifically identified funds.
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 proceedings.
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