Monday, February 15, 2016

A balancing of interests

Like so much else in the law, the Kentucky Open Records Act is an example of when a balancing of interests must occur.

The goal of the state's open records law is to promote transparency of government. See KRS 61.871. However, the obligation of public agencies to disclose certain documents is not unlimited. 

A recent attorney general's opinion dealt, in part, with one particular scenario in which a public agency can deny a records request: when the requester's actions are harassing to the governmental body.

In the matter of Minnie McCord and the Fleming County Board of Education, 16-ORD-021 (released Feb. 10, 2016), McCord had requested several types of records from the Board of Education, including financial records for specific years.

However, the Board denied her request, stating that the custodian of the records had "reason to believe that [her] repeated requests . . . [were] intended to disrupt the other essential functions" of the county schools. As such, the Board refused to permit McCord's inspection of or to provide copies of the records she requested.

The Board noted that McCord had previously requested numerous records, but then she never went to the Board's office to review those records. Further, McCord had a pending lawsuit against "the Board and/or its officers or employees." 

McCord appealed to the attorney general's office following the Board's denial of her request. In its analysis on this point, the attorney general's office quoted KRS 61.872(6), which states 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.
In its response to McCord's appeal, the Board argued, relevant to the discussion here, 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 opinion, quoting one of its earlier opinions, stressed that harassment should only be invoked as an excuse "in extreme and abusive circumstances."

Based on the facts presented, the attorney general's office found no such scenario involving McCord. Instead, the attorney general's office found that the facts in McCord's case, including that she had once requested many records that she did not pick up and her "repeated requests to settle her litigation," did not demonstrate that the Board had met its high burden under the clear and convincing evidence standard required by state law.

By comparison, the opinion cited the facts of an earlier decision where harassment was found—where the "16th request [sought] almost 2000 emails, some consisting of multiple pages, on top of the approximately 17,000 pages of records . . . previously requested." In that case, the requester had not paid for the records.

However, here, McCord had only made one request and had only sought inspection, so nonpayment for records was not an issue. The attorney general's office recognized the Board's frustrations, but ultimately found that "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."

As such, the attorney general's office found that McCord's requests were not intended to disrupt the Board's essential functions. 

Other portions of this opinion dealt with the Board's denial of the specific records McCord requested. To see the full opinion, visit the attorney general's office website.