Skip to main content

These are the results of an experiment using OpenAI's GPT3.5-turbo model to extract summaries and citation treatment information from open records decisions. Prompts were prepared using this notebook. These outputs are raw from the AI model, have not been fully vetted, and should not be relied upon in any way.

Please note that the "O" treatments were meant as "Other" citations, but Amye pointed out that to an attorney this looks like a glaring "Overruled". I'll but updating this in the future: but this is the Key I gave the model for its output:

F - Followed, When the decision follows reasoning from the citation; 

M - Modified, When the decision modified the cited previous decision; 

W - Withdrawn, When the decision withdraws the cited previous decision;

R - Reversed, When the decision reverses the cited previous decision;

O - Other, When the decision cites a previous decision without necessarily being directly supportive of the current dispute; or

N - Not found, When the citation is not found in the decision text.

 

Links to Opinions Below


 

20-ORD-001

LLM Generated Data

Appellant: Appellant

Agency: WKU

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

WKU did not violate the Act in withholding student education records under FERPA and KFERPA, as the records were properly classified as education records and could not be redacted to protect student identities. Additionally, WKU did not violate the Act by withholding Athletic Department records. The agency met its burden of proof regarding the nonexistence of records relating to certain individuals. While WKU was correct in withholding records subject to FERPA, the response was not considered adequate as it lacked detailed explanations. The decision emphasizes the importance of agencies providing detailed justifications for withholding records under FERPA and complying with the Act's requirements. The appellant may appeal the decision in the appropriate circuit court.

Cited Opinions

  • 18-ORD-168: O

    This decision discusses the application of FERPA and KFERPA in withholding student education records.

  • 07-ORD-190: O

    The decision addresses the burden of proof regarding the nonexistence of records and the agency's obligation to conduct a good faith search.

  • 06-ORD-040: O

    This decision discusses the agency's obligation to offer some explanation for the nonexistence of records in dispute.

  • 11-ORD-091: O

    The decision clarifies that a public agency cannot provide access to a nonexistent record or that which it does not possess.

  • 10-ORD-230: O

    This decision emphasizes the importance of a good faith search and reasonable effort to identify and locate requested records.

  • 01-ORD-38: O

    The decision discusses the Act's regulation of access to records that are prepared, owned, used, in the possession of, or retained by a public agency.

  • 04-ORD-075: O

    This decision addresses the burden of proof regarding the nonexistence of records.

  • 12-ORD-231: O

    The decision emphasizes the agency's obligation to conduct a good faith search and expend reasonable effort to identify and locate requested records.

  • 95-ORD-96: O

    This decision discusses the burden of proof regarding the nonexistence of records and the agency's obligation to offer some explanation for the nonexistence of the records in dispute.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On October 11, 2019, Appellant requested from WKU, "[a]ny records or correspondance [sic] from WKU athletics, Title IX Office, Office of Student Conduct or WKU police, with any reference to Marlon Hunter or Chris McNeal or Frederick Edmond or Ray Harper or any combination of the previously mentioned names, between April 6, 2015 and April 6, 2016." 

On October 16, 2019, WKU denied the request. WKU identified the staff of WKU athletics, the Title IX Office, Office of Student Conduct and WKU police that searched for responsive records. WKU stated that the offices did not possess any records referencing Ray Harper. Regarding Marlon Hunter, Chris McNeal, and Frederick Edmond, WKU withheld those records under the Family Educational Rights and Privacy Act of 1974 ("FERPA") and the Kentucky Family Educational Rights and Privacy Act ("KFERPA"). WKU stated, "[a]ll records in the possession of the offices identified in the request were created during the time period when the three individual students were enrolled as students of the University." WKU also denied the request because the records were "preliminary," under KRS 61.878(1)(i) and (j), and under the "personal privacy and federal law exemptions to the [Act] in KRS 61.878(1)(a) and (k)." WKU failed to identify the records it was withholding under KRS 61.878(1)(i) and (j) or explain how those exceptions applied to each category of record withheld. However, WKU's position that FERPA and KFERPA prevented the disclosure of education records was sufficient to overcome the inadequacy of its response 1in citing KRS 61.878(1)(i) and (j). 

On October 22, 2019, Appellant appealed the disposition of the request to this Office, and WKU responded on October 29, 2019. This Office requested copies of the responsive records for purpose of in camera review, under KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3. 3This Office also asked that WKU identify the records and provide a brief explanation of how the asserted exceptions applied to the records withheld. See KRS 61.880(1). 

On November 13, 2019, WKU provided 500 pages of records for purposes of in camera review, and verified that the records comprise all existing records in its possession. WKU identified the records as 82 pages of Athletics Department records and 418 pages of Title IX Office and Office of Student Conduct disciplinary records, and explained how FERPA and KFERPA applied to each category. WKU stated that its police department did not possess responsive records, because no criminal charges had been filed with that agency. 

WKU's Records are "Education Records" as Defined in FERPA

WKU withheld all responsive records relating to Marlon Hunter, Chris McNeal, and Frederick Edmond, asserting FERPA, incorporated into the Act by operation of KRS 61.878(1)(k), 4and its state counterpart KFERPA, incorporated by KRS 61.878(1)(l). 5FERPA regulates access to "education records," which are defined at 20 U.S.C. § 1232g(a)(4)(A) as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 18-ORD-168, p. 4. More specifically, FERPA protects from disclosure "education records (or personally identifiable information contained therein other than directory information...) of students without the written consent of their parents to any individual, agency, or organization[.]" 20 U.S.C. § 1232g(b)(1) (emphasis added). 

The term "education records" includes all information, in whatever form, which satisfies the two-part test described above. 18-ORD-168. Therefore, student records, "do not have to be related to academic matters to be 'education records' under FERPA[.]" Id. at 5-6 (quoting 

United States v. The Miami Univ. , 91 F. Supp. 2d 1132, 1149 n. 17 (S.D. Ohio 2000)). Accordingly, the academic records, athletic records, and disciplinary records at issue in this appeal are "education records" as defined by FERPA. 

WKU Did Not Violate the Act in Withholding Student Education Records

This Office's in camera review revealed there were two separate categories of student education records. The first category related to the specific students. The second category related to general policies and procedures for handling student disciplinary actions. WKU's initial denial stated the records custodian "examined the records and determined the documents constitute student education records, including records of student discipline, which are excluded from public inspection by operation of the [FERPA], 20 USC § 1232g, which is incorporated into the Open Records Act by KRS 61.878(1)(k). . . ." FERPA also prohibits the release of "education records" where the "personally identifiable information" therein, "alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty." See 34 C.F.R. § 99.3(f). Based on this Office's in camera review, the documents could not have been redacted in a manner that protected the identity of the students. Therefore, WKU properly withheld the student education records requested. 

Regarding the policies and procedures, WKU's response must also be viewed in light of Appellant's specific request, which read "... with any reference to. . ." specific students. In our review, the policies and procedures did not make any reference to the specific students. FERPA and KFERPA do not apply to such general, non-specific documents. Because these records do not make "any reference to" the identified students, they are nonresponsive to the request. 

WKU Did Not Violate the Act by Withholding Athletic Department Records

WKU did not violate the Act when it withheld the 82 pages of WKU Athletics responsive records in their entirety. In a generic sense, the documents this Office reviewed in camera could have the "personally identifiable information" easily redacted. See 34 CFR § 99.31(16)(b)(1). "Although FERPA contains no redaction provision, neither does it prohibit such." 

Unincorporated Operating Div. of Indiana Newspapers, Inc., v. Trustees of Indiana Univ. , 787 N.E.2d 893, 908 (Ind. Ct. App. 2003). Courts have found that records with the personally identifiable information of a student removed are no longer "education records" subject to exemption under FERPA. Id. at 907-8; 

United States v. Miami University , 294 F.3d 797, 811 (6th Cir. 2002); Hardin Cty. Sch. , 40 S.W.3d at 869. As such, in some circumstances, student records can be redacted and released upon request without violating FERPA. 

However, "personally identifiable information" may be redacted and the record may be released only if "the educational agency . . . has made a reasonable determination that a student's identity is not personally identifiable." Id. In Miami University , the college newspaper generally requested all disciplinary records held by the University Disciplinary Board covering a two-year period. Id. at 803. The Court found that the requested records could be released provided personally identifiable information was redacted. Id. at 811. However, in this case, Appellant has requested the records of specifically identified students, unlike the general request made in Miami University . Even if the names and information of the students were redacted, they would still be linkable to specific students because of the specific nature of Appellant's request. See 34 C.F.R. § 99.3(f). Therefore, WKU properly withheld the Athletic Department Records. 

WKU Met Its Burden of Proof Regarding Nonexistent Records

Regarding responsive records relating to Ray Harper, this Office finds that WKU's initial response met the agency's burden of proof regarding the nonexistence of responsive records. In addition, WKU met its burden of proof regarding the nonexistence of WKU police records. 

The Attorney General has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-091. The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." 10-ORD-230; KRS 61.870(2). In order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. As such, WKU was required to conduct a "good faith" search, and "expend reasonable effort to identify and locate the requested records." See 95-ORD-96, p. 7. 

WKU met its burden regarding the nonexistence of records relating to Ray Harper by describing a "good faith" search in the initial response, but WKU was unclear whether the WKU police possessed any responsive records. On appeal, WKU stated that the WKU police reported receiving no criminal charges relating to the student disciplinary cases, demonstrating that the agency conducted a "good faith" search. See 95-ORD-96. Accordingly, this Office finds that WKU ultimately met its burden of proof regarding the nonexistence of records. 

Conclusion 

While WKU was correct in withholding certain records subject to FERPA, this Office will not accept an agency's blanket denial under FERPA as an adequate response. To comply with the Act as it incorporates FERPA, educational agencies must describe, in detail, the categories of student records they possess. Further, they must explain why and how FERPA applies to those categories of documents, and why redaction of personally identifiable information would inadequately protect the identity of the student. As well, they must acknowledge whether a student has signed a FERPA waiver and whether the conditions of that waiver apply in the context of a specific request. For those requesting records from educational institutions, the language used in a request is crucial for determining whether an agency adequately complied. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 WKU's initial response to the Appellant merely listed the exceptions it relied upon without explaining to Appellant how they applied. This initial response was insufficient. However, WKU supplemented its initial response on appeal and therefore corrected the issue.

2 KRS 61.880(2)(c) states, in relevant part: "The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."

3 40 KAR 1:030, Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."

4 KRS 61.878(1)( k) exempts, "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation[.]"

5 KRS 61.878(1)(l) exempts, "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"



 

20-ORD-002

LLM Generated Data

Appellant: Kathleen McIntosh

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Kentucky State Police (KSP) did not violate the Open Records Act in denying Kathleen McIntosh's request for certain records related to an ongoing investigation. The decision to deny the request was affirmed based on the ongoing nature of the investigation and the potential harm that premature release of records could cause. The denial was also supported by the fact that certain requested records did not exist. The decision found that KSP provided specific reasons for withholding the records and affirmed the denial based on legal authority and statutory provisions. The denial was deemed appropriate and in compliance with the law.

Cited Opinions

  • 17-ORD-121: F

    This decision affirms the denial of the request based on the ongoing nature of the investigation and the potential harm that premature release of records could cause.

  • 05-ORD-246: F

    Cited to validate the agency's redaction of personal information of private citizens based on KRS 61.878(1)(a).

  • 07-ORD-095: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 09-ORD-030: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 19-ORD-025: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 04-ORD-041: O

    Cited to explain that investigative reports are usually withheld to protect sources of information and prevent premature disclosure of contents to targets of investigation.

  • 14-ORD-154: O

    This decision establishes that records are exempt from disclosure until there is no prospective law enforcement action, as long as the agency specifies the action.

  • 14-ORD-228: O

    This decision affirms the withholding of investigative records based on an active investigation and pending prosecution.

  • 15-ORD-077: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 16-ORD-087: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 16-ORD-246: F

    Referred to in the decision to support the denial of the request for nonexistent records.

  • 18-ORD-035: F

    Referred to in the decision to support the denial of the request for nonexistent records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSP violated the Act in denying Kathleen McIntosh's ("Appellant") November 14, 2019, request for "any and all copies of [KSP] report number 13-19-0678 and any uniform citations issued for the same report." By letter dated November 25, 2019, the Official Custodian of Records responded on behalf of KSP. She asserted that such records are "part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2)(d) and 61.878(1)(h), (l)." KSP further stated that "[p]remature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events." Citing prior decisions by this Office, including 17-ORD-121, Appellant initiated this appeal by letter dated December 4, 2019. 

KSP responded and first reiterated its position that any responsive documents "are part of an open investigation, as prosecution has not been declined or completed." However, KSP enclosed a copy of the "initial KYIBRS 1report, before the narrative portion begins[.]" 2KSP identified Trooper Joshua Collett as the investigating officer and confirmed that "he is still actively investigating the case as he is awaiting receipt of relevant lab results. Due to the case being actively investigated, prosecution has not been declined and any of the requested records may become evidence in a criminal trial." KSP argued that release of the records in dispute "would also harm the investigation by tipping off potential witnesses or defendants that may be unaware they are a subject of the investigation by revealing information that may influence their statements or testimony." With regard to any uniform citations, KSP denied the request "as there are no responsive records in KSP's possession." Citing a number of prior decisions by this Office, KSP maintained that a public agency cannot provide a requester with nonexistent records. 

In support of its denial, KSP provided the December 20, 2019, affidavit of Trooper Collett. He reiterated that "[r]elease of any records at this time related to case 13-19-0678 could result in prejudice to witnesses and result in bias to a potential jury pool." Trooper Collett further attested that, as of that date, KSP had not issued any citations relating to Case No. 13-19-0678. 

On appeal, KSP argued that "contacting the investigating officer satisfies the standard [to make a good faith effort] required as a search of that type can reasonably be expected" to enable KSP to identify and locate any existing responsive documents. Relying on 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005), and prior decisions by this Office, KSP noted this Office has consistently affirmed public agency denials of requests based upon the nonexistence of responsive public records in the absence of a prima facie showing that certain records existed in the possession of the agency. Consistent with existing legal authority construing KRS 17.150, incorporated into the Act by operation of KRS 61.878(1)(l), this Office affirms KSP's denial of the request. 

Unless exempted by other provisions of the Act, public records "shall be open after enforcement action is completed or a decision is made to take no action." KRS 61.878(1)(h). Similarly, KRS 17.150(2) provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." 3In comparing these two statutory provisions, the Attorney General has observed that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 (citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976)). This Office later determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2; 07-ORD-095; 09-ORD-030; 19-ORD-025. When viewed jointly, these provisions mean that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. 04-ORD-041, p. 4 (citation omitted). Neither has occurred here. 

In 14-ORD-154, a decision dispositive of this appeal, this Office was asked to determine whether the Lakeside Park-Crestview Hills Police Authority violated the Act in denying an attorney's request for investigative records pertaining to his client in the context of a motion to set aside a conviction. The Attorney General found that denial was appropriate under KRS 17.150, reasoning as follows: 

While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l). As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. [Internal citation omitted.] Accordingly, KRS 17.150 does not require the agency to demonstrate a showing of harm. It merely requires the agency to provide a specific reason for withholding the records. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be.

 

14-ORD-154, pp. 4-5. The Attorney General also explained, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity." 14-ORD-154, p. 3. Moreover, the exemptions codified at KRS 17.150(2) "shall not be used by the custodian of records to delay or impede the exercise of rights granted by this section." KRS 17.150(3). 

Likewise, in 14-ORD-228, at p. 4, this Office determined that KSP properly withheld responsive investigative records where it specified that the records were part of "an active, open investigation," and that "prosecution has not been declined." See 15-ORD-077; 16-ORD-087; 16-ORD-246; 18-ORD-035. KSP has stated as much in this case. Because KSP's denial pursuant to KRS 17.150(2)(d) was appropriate, this Office makes no finding relative to KRS 61.878(1)(h). Here, as in 14-ORD-223, "the records in question may become evidence in a criminal trial." Id. , p. 3; 15-ORD-105. Thus, KSP provided "a 'specific reason' for withholding the records, and [its final response] was therefore sufficient under ... KRS 17.150[.]" 16-ORD-199, p. 5; 16-ORD-244; 16-ORD-275; 18-ORD-035. Accordingly, this appeal presents no basis to depart from the foregoing line of authority. This Office affirms the denial by KSP. See 17-ORD-144. 

This Office also affirms KSP's denial of "any uniform citations" connected to the KYBRIS report. KSP cannot produce nonexistent citations, nor is the agency expected to "prove a negative" in order to refute a claim that certain records exist under the rule announced in 

Bowling v. Lexington-Fayette Urban Cnty Gov't , 172 S.W.3d 333 (Ky. 2005). See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091. But see, 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"). 

Although the intent of the Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, 4the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). In other words, the Act only applies to records that already exist, and which are in the possession or control of the public agency to which the request is directed. See 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120; 17-ORD-036. When, as in this case, a public agency denies that any responsive documents exist in the agency's possession or control, and the record on appeal supports that position, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 17-ORD-215; 18-ORD-057. A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether the records exist, but a public agency discharges its duty under the Act when it affirmatively indicates that certain records do not exist, and explains why, as KSP ultimately did here. 04-ORD-205, p. 4; 12-ORD-056; 11-ORD-122; 18-ORD-057. In the absence of any legal authority requiring KSP to create or maintain the requested citations, or any objective proof to refute its position that no such records were created, the Attorney General affirms the denial by KSP in this regard as well. 

Finally, this Office notes that KRS 17.150(3) does not permit a public agency to withhold investigation files permanently. Although KSP cannot postpone access to the records in dispute indefinitely by characterizing the investigation as open or active, it has adequately substantiated that characterization here. However, upon completion of the investigation or a determination not to prosecute, any investigative records that are responsive to Appellant's request will be subject to disclosure unless those records are specifically excluded from application of the Act by another statutory exception. 

Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Kentucky Incident Based Reporting System.

2 [P]olice incident reports, as opposed to investigative files, are not generally exempt from disclosure.'" 16-ORD-199, p.3; see also 04-ORD-188; 08-ORD-105; 09-ORD-205; 16-ORD-085. Moreover, existing legal authority validates the agency's redaction of personal information such as date of birth, social security number, telephone number, etc. regarding private citizens on the basis of KRS 61.878(1)(a). See Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 88-89 (Ky. 2013) (rejecting the practice of "blanket denials" of requests made per KRS 61.880(1), but affirming the policy of "categorical redaction" per KRS 61.878(1)(a) of private citizens' personal information, including victims, witnesses, and uncharged suspects, in addition to names of juveniles, from law enforcement records).

3 However, KRS 17.150(2) also provides that "portions of the records may be withheld from inspection if the inspection would disclose" certain categories of information.

4 See KRS 61.8715.



 

20-OMD-003

LLM Generated Data

Appellant: Appellant

Agency: Spencer County Judge/Executive

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Spencer County Judge/Executive was found to have violated the Open Meetings Act by engaging in a discussion during a closed session of the Spencer County Fiscal Court of business not publicly announced prior to going into closed session. The violations include failing to properly invoke exceptions for closed session discussions and not providing advanced notice to the public in regular session about the topics to be discussed in closed session. The decision states that the complaint is not moot and that the violations were substantiated. The appellant has the right to appeal this decision in the appropriate circuit court.

Cited Opinions

  • 06-OMD-262: O

    The decision is cited to establish that a meeting occurs when a quorum of a public agency convenes to discuss public business, and such meetings are open to the public unless one or more exceptions are properly invoked.

  • 13-OMD-144: O

    The decision is cited to show that the public agency must provide notice in the regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision authorizing the closed session.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether the Spencer County Judge/Executive ("Judge/Executive") violated the Open Meetings Act ("Act") by engaging in a discussion, during a closed session of the Spencer County Fiscal Court ("Fiscal Court"), of business not publicly announced prior to going into closed session. For the reasons set forth below, this Office finds that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a) and KRS 61.815(1)(d) of the Act. 

On November 13, 2019, Appellant submitted an Open Meetings Complaint to Spencer County Attorney Ken Jones ("County Attorney"), stating that the Judge/Executive violated the Act by initiating a discussion about Appellant during a closed session of a Fiscal Court meeting. Appellant also stated that the subject of the dosed session discussion did not fall within any of the open meetings, exceptions provided for in KRS 61.810. Appellant requested as relief that the Judge/Executive, "[c]ease and desist illegal discussion of topics that are not within the legal confounds of executive session... [,]" "apologize to [Appellant] for his remarks and discouraging words... [,]" and "apologize at the next [Fiscal Court] meeting to the public for his illegal activities in violating the [Act]." 

On November 21, 2019, the Judge/Executive responded to the Complaint by denying the allegations and refusing to comply with the requested relief. On November 26, 2019, Appellant forwarded the Judge/Executive's response to the County Attorney and requested relief. On December 4, 2019, the County Attorney replied, "I concur that discussions regarding you, in executive session, were improper." The County Attorney provided Appellant a copy of a remedial email he intended to send each Fiscal Court member to address closed session discussions, but he stated, that apologies to Appellant and the public "will be difficult to obtain." 

On December 22, 2019, Appellant appealed to this Office alleging that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a), and KRS 61.815(1)(d). Appellant stated that the Judge/Executive, "has not met the relief that Complainant has requested[.]" On December 30, 2019, the County Attorney responded to the appeal, stating that the Complaint is now moot. The County Attorney conceded that "[o]ne of the topics proper for discussion in executive session, wandered into a specific discussion of [Appellant]," but stated that the Judge/Executive provided a remedy in the form of the email regarding future compliance with the Act. Regarding Appellant's requested relief, the County Attorney stated, "the Complaint is vague with regard to what specific relief is requested, and...Spencer County has responded to the open meetings complaint, appropriately under the statute." 

The Open Meetings Appeal is not Moot

The Judge/Executive asks that this Office find the Complaint moot because he conceded a violation of the Act and provided remedies to address the issues, but Appellant disputes the adequacy of the remedies. In relevant part, KRS 61.846(3)(a) provides: 

"If a public agency agrees to remedy an alleged violation... and the person who submitted the written complaint...believes that the agency's efforts in this regard are inadequate, the person may complain to the Attorney General."

 

The Act further requires that when an Appellant believes the remedial efforts are inadequate, "the adjudicatory process... shall govern as if the public agency had denied the original complaint." KRS 61.846(3)(c). Accordingly, the Complaint is not moot. 

The judge/Executive Violated KRS 61.810(1)

On appeal, the Judge/Executive conceded that he initiated an impromptu discussion regarding Appellant during a portion of the Fiscal Court meeting conducted in closed session. When a quorum of a public agency convenes to discuss public business, a meeting occurs, and such meetings are open to the public unless one or more of the exceptions codified at KRS 61.810(1) 1is properly invoked. 06-OMD-262; 13-OMD-144. The evidence in the record shows that the discussion regarding Appellant occurred during a session closed to the public, and the Fiscal Court did not properly invoke an exception authorizing this discussion. Accordingly, this Office finds a violation of KRS 61.810(1). 

The Judge/Executive Violated KRS 61.815(1)(a) and KRS 61.815(1)(d)

On appeal, the Judge/Executive conceded that he did not provide advanced notice to the public in regular session that discussions regarding Appellant would occur during the closed session. KRS 61.815(1) provides the notice requirements for closed session discussions of public business, stating: 

(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810: 

(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; ...and 

(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

 

The express purpose of these, as well as the other provisions of the Act, "is to maximize notice of public meetings and actions ... [t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." 

Floyd County Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997) (citing 

E.W. Scripps Co. v. City of Maysville , 790 S.W.2d 450 (Ky. App. 1990)). With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give " specific and complete notification...of any and all topics which are to be discussed during the closed meeting ." Id. at 924 (emphasis added). The evidence in the record shows that the Judge/Executive admittedly failed to give notice in the regular open meeting that Appellant would be part of the business discussed in dosed session, and failed to provide notice of the specific provision of KRS 61.810 authorizing the discussion of Appellant in closed session. Accordingly, this Office finds a violation of KRS 61.815(1)(a) and KRS 61.815(1)(d). 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney. General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 KRS 61.810(1) provides: "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following [enumerated exceptions]."



 

20-OMD-003

LLM Generated Data

Appellant: Appellant

Agency: Spencer County Judge/Executive

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Spencer County Judge/Executive was found to have violated the Open Meetings Act by engaging in a discussion during a closed session of the Spencer County Fiscal Court of business not publicly announced prior to going into closed session. The violations include failing to properly invoke exceptions for closed session discussions and not providing advanced notice to the public about the specific topics to be discussed in the closed session. The complaint was deemed not moot, and the Judge/Executive was found to have violated KRS 61.810(1), KRS 61.815(1)(a), and KRS 61.815(1)(d) of the Act. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court.

Cited Opinions

  • 06-OMD-262: O

    The decision is cited as a reference for the violation of KRS 61.810(1) regarding closed sessions of public agencies.

  • 13-OMD-144: O

    The decision is cited as a reference for the violation of KRS 61.815(1)(a) and KRS 61.815(1)(d) regarding notice requirements for closed session discussions of public business.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether the Spencer County Judge/Executive ("Judge/Executive") violated the Open Meetings Act ("Act") by engaging in a discussion, during a closed session of the Spencer County Fiscal Court ("Fiscal Court"), of business not publicly announced prior to going into closed session. For the reasons set forth below, this Office finds that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a) and KRS 61.815(1)(d) of the Act. 

On November 13, 2019, Appellant submitted an Open Meetings Complaint to Spencer County Attorney Ken Jones ("County Attorney"), stating that the Judge/Executive violated the Act by initiating a discussion about Appellant during a closed session of a Fiscal Court meeting. Appellant also stated that the subject of the dosed session discussion did not fall within any of the open meetings, exceptions provided for in KRS 61.810. Appellant requested as relief that the Judge/Executive, "[c]ease and desist illegal discussion of topics that are not within the legal confounds of executive session... [,]" "apologize to [Appellant] for his remarks and discouraging words... [,]" and "apologize at the next [Fiscal Court] meeting to the public for his illegal activities in violating the [Act]." 

On November 21, 2019, the Judge/Executive responded to the Complaint by denying the allegations and refusing to comply with the requested relief. On November 26, 2019, Appellant forwarded the Judge/Executive's response to the County Attorney and requested relief. On December 4, 2019, the County Attorney replied, "I concur that discussions regarding you, in executive session, were improper." The County Attorney provided Appellant a copy of a remedial email he intended to send each Fiscal Court member to address closed session discussions, but he stated, that apologies to Appellant and the public "will be difficult to obtain." 

On December 22, 2019, Appellant appealed to this Office alleging that the Judge/Executive violated KRS 61.810(1), KRS 61.815(1)(a), and KRS 61.815(1)(d). Appellant stated that the Judge/Executive, "has not met the relief that Complainant has requested[.]" On December 30, 2019, the County Attorney responded to the appeal, stating that the Complaint is now moot. The County Attorney conceded that "[o]ne of the topics proper for discussion in executive session, wandered into a specific discussion of [Appellant]," but stated that the Judge/Executive provided a remedy in the form of the email regarding future compliance with the Act. Regarding Appellant's requested relief, the County Attorney stated, "the Complaint is vague with regard to what specific relief is requested, and...Spencer County has responded to the open meetings complaint, appropriately under the statute." 

The Open Meetings Appeal is not Moot

The Judge/Executive asks that this Office find the Complaint moot because he conceded a violation of the Act and provided remedies to address the issues, but Appellant disputes the adequacy of the remedies. In relevant part, KRS 61.846(3)(a) provides: 

"If a public agency agrees to remedy an alleged violation... and the person who submitted the written complaint...believes that the agency's efforts in this regard are inadequate, the person may complain to the Attorney General."

The Act further requires that when an Appellant believes the remedial efforts are inadequate, "the adjudicatory process... shall govern as if the public agency had denied the original complaint." KRS 61.846(3)(c). Accordingly, the Complaint is not moot. 

The judge/Executive Violated KRS 61.810(1)

On appeal, the Judge/Executive conceded that he initiated an impromptu discussion regarding Appellant during a portion of the Fiscal Court meeting conducted in closed session. When a quorum of a public agency convenes to discuss public business, a meeting occurs, and such meetings are open to the public unless one or more of the exceptions codified at KRS 61.810(1) 1is properly invoked. 06-OMD-262; 13-OMD-144. The evidence in the record shows that the discussion regarding Appellant occurred during a session closed to the public, and the Fiscal Court did not properly invoke an exception authorizing this discussion. Accordingly, this Office finds a violation of KRS 61.810(1). 

The Judge/Executive Violated KRS 61.815(1)(a) and KRS 61.815(1)(d)

On appeal, the Judge/Executive conceded that he did not provide advanced notice to the public in regular session that discussions regarding Appellant would occur during the closed session. KRS 61.815(1) provides the notice requirements for closed session discussions of public business, stating: 

(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810: 

(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; ...and 

(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

The express purpose of these, as well as the other provisions of the Act, "is to maximize notice of public meetings and actions ... [t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." 

Floyd County Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997) (citing 

E.W. Scripps Co. v. City of Maysville , 790 S.W.2d 450 (Ky. App. 1990)). With specific reference to KRS 61.815, the Supreme Court declared that prior to going into closed session, "the public agency must state the specific exception contained in the statute which it relied upon," and give " specific and complete notification...of any and all topics which are to be discussed during the closed meeting ." Id. at 924 (emphasis added). The evidence in the record shows that the Judge/Executive admittedly failed to give notice in the regular open meeting that Appellant would be part of the business discussed in dosed session, and failed to provide notice of the specific provision of KRS 61.810 authorizing the discussion of Appellant in closed session. Accordingly, this Office finds a violation of KRS 61.815(1)(a) and KRS 61.815(1)(d). 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney. General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 KRS 61.810(1) provides: "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following [enumerated exceptions]."



 

20-ORD-004

LLM Generated Data

Appellant: Tessa Duvall

Agency: DJJ

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The DJJ was found to have violated the Act by denying to provide the appellant with existing responsive documents in electronic format after making necessary redactions. The decision cited previous rulings that established the obligation of agencies to provide redacted copies of records in electronic form if requested, and to bear the costs of redaction and separation of confidential information. The appellant was not challenging the need for redactions, but rather the DJJ's refusal to make electronic redactions to electronic files, which resulted in unnecessary printing costs for hard copies of records maintained electronically.

Cited Opinions

  • 18-ORD-078: F

    The decision in 18-ORD-078 is cited as it resolved a fundamental question regarding the provision of electronic records after necessary redactions. It established that agencies must provide redacted copies of records in electronic form if requested.

  • 06-ORD-148: F

    Cited for the requirement that agencies must bear the cost of redaction and must provide redacted copies of records in electronic form if requested.

  • 95-ORD-82: O

    Referenced for the duty of a public agency to separate exempted material and make non-exempted material available for examination, bearing the cost of such separation.

  • 08-ORD-183: O

    Cited for the duty of agencies to bear the cost of separating confidential from non-confidential information in order to permit inspection, examination, or copying of public information.

  • 03-ORD-004: O

    Referenced for the duty of agencies to discharge their obligations under the Open Records Act regardless of the storage system used for records.

  • 98-ORD-33: O

    Mentioned in conjunction with other decisions to support the requirement for agencies to bear the costs of redaction and separation of confidential information.

  • 02-ORD-148: F

    Cited for the principle that agencies are not required to compile information or create new records to comply with a request, but must provide redacted copies of existing records in electronic form if requested.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether DJJ violated the Act in the disposition of seven requests made by Courier-Journal reporter Tessa Duvall ("Appellant") between August 2, 2019, and September 16, 2019 - specifically, the question is whether DJJ erred in declining to provide the records in electronic format with electronic redactions. The following is a chronological summary of the requests: 

August 2, 2019 (ORR 19-36) 1: Request for "access to or copies, preferably in electronic form ," of "[a]ny database, roll or list of all current and former staff of [DJJ] programs and facilities from FY2016 through present. As applicable, please include name, job title, facility, hire date, last date worked and reason for departure. 

August 8, 2019 (ORR 19-39) : Request for "access to or copies, preferably in electronic form ," of "[a]ny report, study, audit or analysis of DJJ facilities conducted between Jan. 1, 2014 and present." 

August 13, 2019 (ORR 19-41) : Request for "access to or copies, preferably in electronic form ," of "[a]ny reports or databases that indicate the number of youth in DJJ custody for public offenses in each calendar year since 2014. Please include demographic data, county of charges and charges when applicable." Request for the same records, but for youthful offenses during that period. 

August 13, 2019 (ORR 19-42) : Request for "access to or copies, preferably in electronic form ," of "[a]ny master, facilities or capital plans for DJJ between Jan. 1, 2014 and present[.] 

August 14, 2019 (ORR 19-43) : Request for "access to or copies, preferably in electronic form ," of "[a]ny policy or directive that provides guidance on transport and intake procedures at DJJ-run detention centers." 

August 27, 2019 (ORR 19-44) : Request for "access to or copies, preferably in electronic form ," of "[a]ll DJJ Prison Rape Elimination Act compliance reports, annual reports and statistical reports from 2015 through present" and "weekly DJJ reports, detailing staffing levels and youths [sic] populations[.] 

September 16, 2019 (ORR 19-47) : Request for "access to or copies in electronic form of" the "six-year capital plan for 2014-2020 that was finalized in April 2013[.]" 

September 19, 2019 (ORR 19-48) : Request for "access to or copies, preferably in electronic form ," of "Open [R]ecords register thus far for 2019" and kill requests to Inspect Public Records (includes responses to those requests) thus far for 2019[.]"

 

DJJ responded to Appellant's initial ORR 19-36 request on August 7, 2019, but "noted more time was needed to accurately respond." By e-mail dated August 26, 2019, DJJ notified Appellant that it was attaching the agency's final response to ORR 19-36, consisting of a cover letter and ten pages of responsive documents. Appellant confirmed receipt and inquired as to whether the "database is an excel file, word doc, etc." Having received no response to her inquiry, Appellant again requested that DJJ specify the format in which it would provide the records and suggested an electronic format would be better. Appellant also requested that DJJ provide "electronic copies of the other fulfilled requests" if possible. DJJ ultimately stated, "[I]t is our policy to produce printed copies and charge $ .10 per page accordingly. And for 19-41 and 19-42 we will not provide electronic copies." 

By e-mail directed to DJJ on September 12, 2019, Appellant asserted that DJJ's aforementioned "policy" of printing and mailing a hard copy of a database in response to 19-36 - "and its refusal to provide electronic copies" for her remaining requests did not comply with the Act. She further maintained that a database, as requested in ORR 19-36, is, by its nature, maintained electronically. In addition, records potentially responsive to her remaining requests "would also be maintained electronically and therefore should be provided in that same format." The Appellant cited 18-ORD-078 on appeal in support of her position that making the necessary redactions "to the requested staff database while maintaining the electronic format would not constitute the creation of a new record," nor would it require DJJ to print a hard copy of an electronic document At no point in responding to Appellant's ORR 19-41 or ORR 19-43 did any representative of DJJ specify that the requested records existed only in hard copy format; instead, DJJ cited "only its 'policy' and issued a blanket refusal." 

In DJJ's September 25, 2019, response to Appellant's ORR 19-48, it cited KRS 61.878(1)(a) to justify the withholding of personal information of DJJ employees, juvenile names, and case numbers. DJJ also generally stated that "some records" were protected from disclosure per KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, due to being "confidential records protected by the attorney-client privilege and work product rule." On appeal, the Appellant admitted that such redactions were reasonable to maintain the privacy of the juveniles DJJ serves, but maintained that DJJ must perform such redactions electronically, referencing KRS 61.874(2)(a). Citing the agency's response to her ORR 19-47, in which DJJ explained that responsive documents were only maintained in hard copy format, she argued that DJJ is capable of specifying when records are not available in electronic format. 2 

In summary, the Appellant "is not challenging the need for redactions." Rather, at issue is DJJ's refusal to make electronic redactions to electronic files. The effect of this policy requires the public to pay unnecessary printing costs for hard copies of voluminous records maintained in an electronic format and circumvents compliance with the Act. 

In responding to this appeal, DJJ first noted that Appellant stated electronic format was "preferable," but did not "solely seek electronic documents." According to DJJ, if Appellant had asked for electronic records only, "production processes and responses would have been completed with that in mind." Next, DJJ argued that Appellant's requests for electronic records are nonstandardized requests, quoting KRS 61.874(2)(b). 3Because DJJ does not maintain records in ASCII format, DJJ asserted that "any request for electronic information would be a nonstandardized request." Quoting KRS 15A.0651(2) and 610.340(1)(a), DJJ emphasized it "has an escalated duty to protected [sic] confidential juvenile personal and facility information, which by its nature is part and parcel to DJJ's records." 

However, DJJ did not deny any of the requests based on the confidentiality of information contained in the responsive documents. DJJ maintains "much of the requested information . . . such that it cannot be produced in its original form because it includes protected information including juvenile identifiers, facility specifications, and metadata that cannot be removed or redacted without first converting the record from its original form to a form in which it can be safely and securely redacted and produced." DJJ further argued that providing the records in electronic format "would be a very onerous undertaking." DJJ would have to "purchase third party software to redact information and remove hidden metadata and utilize IT staff to verify all confidential information has been removed." 

DJJ explained, "The native form of the list that was compiled in response to [ORR 19-36] is Microsoft Excel. It is not possible to redact information in Excel without use of third party software, and the DJJ does not currently have such software." Accordingly, to remove confidential employee and non-responsive information, "DJJ would have to actually delete it from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)." With regard to ORR 19-39, DJJ again stated that such records are not maintained in ASCII format, and the request is therefore nonstandardized. "Furthermore, confidential juvenile and employee information had to be removed from the Quality Assurance Audits." With regard to ORR 19-41, DJJ noted, "[o]ffender counts and statistics are maintained in a Microsoft Excel spreadsheet." In order to provide any responsive information without inadvertently disclosing confidential information, "DJJ prepared charts and graphs from the data in the spreadsheet." DJJ reiterated its position regarding the nonstandardized nature of the request and the agency's inability to redact confidential information contained in the responsive Excel spreadsheet; DJJ made this identical argument relative to ORRs 19-41, 19-43, 19-44, and 19-48. 

In support of its decision to provide the records in hard copy format only, DJJ provided the November 18, 2019, affidavit of Brian Kiser, a Systems IT Consultant for DJJ. He first confirmed that DJJ does not currently maintain electronic documents in ASCII format. According to Mr. Kiser, the "versions of Microsoft Office programs that are in use at [DJJ] retain metadata and do not offer the ability to redact information." DJJ would have to purchase "a third party software tool that has adds [sic] redaction capabilities to Microsoft Office programs," print documents "and redact by hand, then scan or copy documents in order to ensure end users cannot view the redacted material or remove the redactions," or "[c]onvert the Microsoft office file(s) to a different type of file format that has redaction capabilities[.]" If DJJ is able to redact information electronically, DJJ "still must remove metadata from electronic files. In my experience, the most secure way to remove metadata is to print a document." 4Mr. Kiser suggested that someone in DJJ's IT branch review the documents "to ensure such information will not be accessible to the end user." Such action is an existing duty of any public agency. 

This Office resolved the fundamental question presented here in 18-ORD-078; a copy of that decision is attached hereto and incorporated by reference. As such, this Office need not restate the rationale of that decision here. The Appellant "did not ask [DJJ] to reformat its existing database" nor did she ask the agency "to tailor the format to satisfy [her] particular needs, but instead ask[ed] for a copy of the database in its entirety [following permissible redactions]. It is therefore not within the discretion of [DJJ] to deny [her] request [for electronic records] per KRS 61.874(3)." 06-ORD-148, p. 7; 18-ORD-078. DJJ is authorized to redact any information that is exempt under KRS 61.878(1)(a) or 61.878(1)(l)(incorporating relevant confidentiality provisions), but "is obligated to so notify [Appellant], identifying the protected information, citing the applicable exception, and explaining how the exception applies to the information withheld per KRS 61.880(1), redact or mask the protected information fields per KRS 61.878(4), and make the nonexempt information available" per KRS 61.872(1)." 06-ORD-148, p. 8; 18-ORD-078. 

Furthermore, in 95-ORD-82, the Attorney General analyzed KRS 61.847(3) as it relates to a public agency's duty to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Significantly, this Office held that separating excepted material is not equivalent to producing a record in a specially tailored format, or nonstandardized format, within the meaning of KRS 61.874(3) as required to allow a public agency to recover staff costs; rather, agencies are required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction. Id. , p. 2; 08-ORD-183. "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the agency shall bear the cost of such separation." 95-ORD-82, p. 3. (Citation omitted). "It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, [this Office believes] that [DJJ] must discharge its duty under KRS 61.878(4), and must bear the costs attendant to [this] duty," if any. 03-ORD-004, p. 10; 98-ORD-33; 02-ORD-148; 18-ORD-078. This appeal presents no basis to depart from the reasoning found in 18-ORD-078. "It is commonly understood that exporting to an Excel or Comma-delimited text file generates the fields of data in a 'tabular' format whereby an entire field can be deleted. [DJJ] is not being asked to create a record to satisfy [the Appellant's] request." Id. Although DJJ argued it "would have to actually delete [exempt material] from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)," 18-ORD-078 states otherwise. Based upon the foregoing, this Office finds that DJJ violated the Act in denying to provide the Appellant with any existing responsive documents in electronic format after making necessary redactions. Here, as in 18-ORD-078, this Office notes that "[o]ur holding today is not a departure from those decisions recognizing that a public agency such as [DJJ] is not statutorily required to compile information, perform research, or create a list/record in order to comply with a request; instead, our holding comports with prior decisions recognizing that redaction of exempt information by a public agency is not equivalent to creation of a record." Id. DJJ is required to separate protected information per KRS 61.878(4) and provide the Appellant with a redacted copy of the subject database(s) in electronic form. 

Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The remainder of this decision will refer only to the specific open records requests ("ORRs") and the dates DJJ responded, as this chronological summary contains the date each ORR was initially submitted to the agency.

2 DJJ provided the records in hard copy format and the related issues are moot. See 40 KAR 1:030 Section 6.

3 An ASCII delimited file is a text file with the extension .csv. All fields of a record are on one line, separated typically by commas[.]" ASCII delimited (*csv.) , AXIEL, http://documentation.axiell.com/alm/en/ds_eiefcommadelimited.html. (last visited January 14, 2020).

4 As of yet, DJJ has not attempted to justify the redaction of any metadata or explained its position with adequate specificity per KRS 61.880(1) and (2)(c).



 

20-ORD-004

LLM Generated Data

Appellant: Tessa Duvall

Agency: DJJ

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The DJJ violated the Act by denying to provide the appellant with existing responsive documents in electronic format after making necessary redactions. The decision emphasizes that the agency must bear the cost of redaction and must discharge its duty under the Open Records Act to separate confidential from non-confidential information. The appellant is not challenging the need for redactions but rather the agency's refusal to make electronic redactions to electronic files, which results in unnecessary printing costs for hard copies of records maintained electronically.

Cited Opinions

  • 18-ORD-078: F

    The decision is cited as it resolved the fundamental question presented in the current case in a previous decision.

  • 06-ORD-148: F

    Cited for the requirement that agencies must bear the cost of redaction and must discharge their duty under the Open Records Act to separate confidential from non-confidential information.

  • 95-ORD-82: F

    Cited for the duty of a public agency to separate excepted and nonexcepted material available for examination and the requirement that the agency bear the cost of such separation.

  • 08-ORD-183: F

    Cited for the duty of an agency to bear the cost of separating confidential from non-confidential information in order to permit the inspection, examination, or copying of public information.

  • 03-ORD-004: F

    Cited for the belief that an agency must discharge its duty under the Open Records Act and bear the costs attendant to this duty, regardless of the type of storage system in which the records are maintained.

  • 98-ORD-33: F

    Referenced for the duty of an agency to bear the costs attendant to the duty of separating confidential from non-confidential information.

  • 02-ORD-148: F

    Cited for the requirement that agencies must bear the costs attendant to their duty under the Open Records Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether DJJ violated the Act in the disposition of seven requests made by Courier-Journal reporter Tessa Duvall ("Appellant") between August 2, 2019, and September 16, 2019 - specifically, the question is whether DJJ erred in declining to provide the records in electronic format with electronic redactions. The following is a chronological summary of the requests: 

August 2, 2019 (ORR 19-36) 1: Request for "access to or copies, preferably in electronic form ," of "[a]ny database, roll or list of all current and former staff of [DJJ] programs and facilities from FY2016 through present. As applicable, please include name, job title, facility, hire date, last date worked and reason for departure. 

August 8, 2019 (ORR 19-39) : Request for "access to or copies, preferably in electronic form ," of "[a]ny report, study, audit or analysis of DJJ facilities conducted between Jan. 1, 2014 and present." 

August 13, 2019 (ORR 19-41) : Request for "access to or copies, preferably in electronic form ," of "[a]ny reports or databases that indicate the number of youth in DJJ custody for public offenses in each calendar year since 2014. Please include demographic data, county of charges and charges when applicable." Request for the same records, but for youthful offenses during that period. 

August 13, 2019 (ORR 19-42) : Request for "access to or copies, preferably in electronic form ," of "[a]ny master, facilities or capital plans for DJJ between Jan. 1, 2014 and present[.] 

August 14, 2019 (ORR 19-43) : Request for "access to or copies, preferably in electronic form ," of "[a]ny policy or directive that provides guidance on transport and intake procedures at DJJ-run detention centers." 

August 27, 2019 (ORR 19-44) : Request for "access to or copies, preferably in electronic form ," of "[a]ll DJJ Prison Rape Elimination Act compliance reports, annual reports and statistical reports from 2015 through present" and "weekly DJJ reports, detailing staffing levels and youths [sic] populations[.] 

September 16, 2019 (ORR 19-47) : Request for "access to or copies in electronic form of" the "six-year capital plan for 2014-2020 that was finalized in April 2013[.]" 

September 19, 2019 (ORR 19-48) : Request for "access to or copies, preferably in electronic form ," of "Open [R]ecords register thus far for 2019" and kill requests to Inspect Public Records (includes responses to those requests) thus far for 2019[.]"

DJJ responded to Appellant's initial ORR 19-36 request on August 7, 2019, but "noted more time was needed to accurately respond." By e-mail dated August 26, 2019, DJJ notified Appellant that it was attaching the agency's final response to ORR 19-36, consisting of a cover letter and ten pages of responsive documents. Appellant confirmed receipt and inquired as to whether the "database is an excel file, word doc, etc." Having received no response to her inquiry, Appellant again requested that DJJ specify the format in which it would provide the records and suggested an electronic format would be better. Appellant also requested that DJJ provide "electronic copies of the other fulfilled requests" if possible. DJJ ultimately stated, "[I]t is our policy to produce printed copies and charge $ .10 per page accordingly. And for 19-41 and 19-42 we will not provide electronic copies." 

By e-mail directed to DJJ on September 12, 2019, Appellant asserted that DJJ's aforementioned "policy" of printing and mailing a hard copy of a database in response to 19-36 - "and its refusal to provide electronic copies" for her remaining requests did not comply with the Act. She further maintained that a database, as requested in ORR 19-36, is, by its nature, maintained electronically. In addition, records potentially responsive to her remaining requests "would also be maintained electronically and therefore should be provided in that same format." The Appellant cited 18-ORD-078 on appeal in support of her position that making the necessary redactions "to the requested staff database while maintaining the electronic format would not constitute the creation of a new record," nor would it require DJJ to print a hard copy of an electronic document At no point in responding to Appellant's ORR 19-41 or ORR 19-43 did any representative of DJJ specify that the requested records existed only in hard copy format; instead, DJJ cited "only its 'policy' and issued a blanket refusal." 

In DJJ's September 25, 2019, response to Appellant's ORR 19-48, it cited KRS 61.878(1)(a) to justify the withholding of personal information of DJJ employees, juvenile names, and case numbers. DJJ also generally stated that "some records" were protected from disclosure per KRS 61.878(1)(l), KRS 447.154, CR 26.02, and KRE 503, due to being "confidential records protected by the attorney-client privilege and work product rule." On appeal, the Appellant admitted that such redactions were reasonable to maintain the privacy of the juveniles DJJ serves, but maintained that DJJ must perform such redactions electronically, referencing KRS 61.874(2)(a). Citing the agency's response to her ORR 19-47, in which DJJ explained that responsive documents were only maintained in hard copy format, she argued that DJJ is capable of specifying when records are not available in electronic format. 2

In summary, the Appellant "is not challenging the need for redactions." Rather, at issue is DJJ's refusal to make electronic redactions to electronic files. The effect of this policy requires the public to pay unnecessary printing costs for hard copies of voluminous records maintained in an electronic format and circumvents compliance with the Act. 

In responding to this appeal, DJJ first noted that Appellant stated electronic format was "preferable," but did not "solely seek electronic documents." According to DJJ, if Appellant had asked for electronic records only, "production processes and responses would have been completed with that in mind." Next, DJJ argued that Appellant's requests for electronic records are nonstandardized requests, quoting KRS 61.874(2)(b). 3Because DJJ does not maintain records in ASCII format, DJJ asserted that "any request for electronic information would be a nonstandardized request." Quoting KRS 15A.0651(2) and 610.340(1)(a), DJJ emphasized it "has an escalated duty to protected [sic] confidential juvenile personal and facility information, which by its nature is part and parcel to DJJ's records." 

However, DJJ did not deny any of the requests based on the confidentiality of information contained in the responsive documents. DJJ maintains "much of the requested information . . . such that it cannot be produced in its original form because it includes protected information including juvenile identifiers, facility specifications, and metadata that cannot be removed or redacted without first converting the record from its original form to a form in which it can be safely and securely redacted and produced." DJJ further argued that providing the records in electronic format "would be a very onerous undertaking." DJJ would have to "purchase third party software to redact information and remove hidden metadata and utilize IT staff to verify all confidential information has been removed." 

DJJ explained, "The native form of the list that was compiled in response to [ORR 19-36] is Microsoft Excel. It is not possible to redact information in Excel without use of third party software, and the DJJ does not currently have such software." Accordingly, to remove confidential employee and non-responsive information, "DJJ would have to actually delete it from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)." With regard to ORR 19-39, DJJ again stated that such records are not maintained in ASCII format, and the request is therefore nonstandardized. "Furthermore, confidential juvenile and employee information had to be removed from the Quality Assurance Audits." With regard to ORR 19-41, DJJ noted, "[o]ffender counts and statistics are maintained in a Microsoft Excel spreadsheet." In order to provide any responsive information without inadvertently disclosing confidential information, "DJJ prepared charts and graphs from the data in the spreadsheet." DJJ reiterated its position regarding the nonstandardized nature of the request and the agency's inability to redact confidential information contained in the responsive Excel spreadsheet; DJJ made this identical argument relative to ORRs 19-41, 19-43, 19-44, and 19-48. 

In support of its decision to provide the records in hard copy format only, DJJ provided the November 18, 2019, affidavit of Brian Kiser, a Systems IT Consultant for DJJ. He first confirmed that DJJ does not currently maintain electronic documents in ASCII format. According to Mr. Kiser, the "versions of Microsoft Office programs that are in use at [DJJ] retain metadata and do not offer the ability to redact information." DJJ would have to purchase "a third party software tool that has adds [sic] redaction capabilities to Microsoft Office programs," print documents "and redact by hand, then scan or copy documents in order to ensure end users cannot view the redacted material or remove the redactions," or "[c]onvert the Microsoft office file(s) to a different type of file format that has redaction capabilities[.]" If DJJ is able to redact information electronically, DJJ "still must remove metadata from electronic files. In my experience, the most secure way to remove metadata is to print a document." 4Mr. Kiser suggested that someone in DJJ's IT branch review the documents "to ensure such information will not be accessible to the end user." Such action is an existing duty of any public agency. 

This Office resolved the fundamental question presented here in 18-ORD-078; a copy of that decision is attached hereto and incorporated by reference. As such, this Office need not restate the rationale of that decision here. The Appellant "did not ask [DJJ] to reformat its existing database" nor did she ask the agency "to tailor the format to satisfy [her] particular needs, but instead ask[ed] for a copy of the database in its entirety [following permissible redactions]. It is therefore not within the discretion of [DJJ] to deny [her] request [for electronic records] per KRS 61.874(3)." 06-ORD-148, p. 7; 18-ORD-078. DJJ is authorized to redact any information that is exempt under KRS 61.878(1)(a) or 61.878(1)(l)(incorporating relevant confidentiality provisions), but "is obligated to so notify [Appellant], identifying the protected information, citing the applicable exception, and explaining how the exception applies to the information withheld per KRS 61.880(1), redact or mask the protected information fields per KRS 61.878(4), and make the nonexempt information available" per KRS 61.872(1)." 06-ORD-148, p. 8; 18-ORD-078. 

Furthermore, in 95-ORD-82, the Attorney General analyzed KRS 61.847(3) as it relates to a public agency's duty to "separate the excepted and make nonexcepted material available for examination" pursuant to KRS 61.878(4). Significantly, this Office held that separating excepted material is not equivalent to producing a record in a specially tailored format, or nonstandardized format, within the meaning of KRS 61.874(3) as required to allow a public agency to recover staff costs; rather, agencies are required to discharge this duty under KRS 61.878(4) and must bear the cost of redaction. Id. , p. 2; 08-ORD-183. "If it is necessary to separate confidential from non-confidential information in order to permit the inspection, examination, or copying of public information, the agency shall bear the cost of such separation." 95-ORD-82, p. 3. (Citation omitted). "It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, [this Office believes] that [DJJ] must discharge its duty under KRS 61.878(4), and must bear the costs attendant to [this] duty," if any. 03-ORD-004, p. 10; 98-ORD-33; 02-ORD-148; 18-ORD-078. This appeal presents no basis to depart from the reasoning found in 18-ORD-078. "It is commonly understood that exporting to an Excel or Comma-delimited text file generates the fields of data in a 'tabular' format whereby an entire field can be deleted. [DJJ] is not being asked to create a record to satisfy [the Appellant's] request." Id. Although DJJ argued it "would have to actually delete [exempt material] from the spreadsheet, which is arguably [a] violation of KRS 61.874(1)," 18-ORD-078 states otherwise. Based upon the foregoing, this Office finds that DJJ violated the Act in denying to provide the Appellant with any existing responsive documents in electronic format after making necessary redactions. Here, as in 18-ORD-078, this Office notes that "[o]ur holding today is not a departure from those decisions recognizing that a public agency such as [DJJ] is not statutorily required to compile information, perform research, or create a list/record in order to comply with a request; instead, our holding comports with prior decisions recognizing that redaction of exempt information by a public agency is not equivalent to creation of a record." Id. DJJ is required to separate protected information per KRS 61.878(4) and provide the Appellant with a redacted copy of the subject database(s) in electronic form. 

Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The remainder of this decision will refer only to the specific open records requests ("ORRs") and the dates DJJ responded, as this chronological summary contains the date each ORR was initially submitted to the agency.

2 DJJ provided the records in hard copy format and the related issues are moot. See 40 KAR 1:030 Section 6.

3 An ASCII delimited file is a text file with the extension .csv. All fields of a record are on one line, separated typically by commas[.]" ASCII delimited (*csv.) , AXIEL, http://documentation.axiell.com/alm/en/ds_eiefcommadelimited.html. (last visited January 14, 2020).

4 As of yet, DJJ has not attempted to justify the redaction of any metadata or explained its position with adequate specificity per KRS 61.880(1) and (2)(c).



 

20-ORD-007

LLM Generated Data

Appellant: WAVE3 News

Agency: Louisville Metro Police Department

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Louisville Metro Police Department did not violate the Open Records Act in denying WAVE3 News' request for a document titled 'Preliminary Summary Findings and Conclusions' relating to Officer Kenneth Betts. The decision was based on the fact that the document was considered preliminary and was not adopted as the basis of final agency action, as the case was closed 'by exception' following Officer Betts' resignation. Therefore, the document retained its preliminary character and was not subject to disclosure. The decision found no violation of the Act.

Cited Opinions

  • 01-ORD-47: O

    This decision provides an analysis of how 'preliminary' records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken.

  • 01-ORD-83: O

    This decision reaffirms the analysis regarding the exemption of 'preliminary' records under KRS 61.878(1)(i) and (j) after final agency action is taken.

  • 00-ORD-107: O

    In this decision, it was determined that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.

  • 10-ORD-053: O

    This decision establishes that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.

  • 12-ORD-055: O

    Similar to 10-ORD-053, this decision confirms that when an internal investigative or disciplinary process is pre-empted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records because those records were not adopted as part of its final action.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act ("the Act") in its denial of a requegt from WAVE3 News ("Appellant") dated September 4; 2019, for a copy of a Professional Standards Unit ("PSU") document titled "Preliminary Summary Findings and conclusions," dated September 5, 2013, relating to Officer Kenneth Betts. For the reasons that follow, this Office finds no violation of the Act. 

LMPD denied Appellant's request on September 20, 2019, 1stating that the document was "exempt from release pursuant to KRS 61.878(1)(i) and (j) which exempts the release of those that express opinions and are preliminary in nature." LMPD stated that "[k]eeping preliminary documents exempt from disclosure protects the integrity of the investigations by allowing investigators to free [ sic ] express opinions without fear of retaliation. Further, this investigation was 'Closed by Exception by Chief Conrad meaning the. Chief did not incorporate any of these records in making his final decision to close the investigation due to Kenneth Betts' resignation." Appellant initiated this appeal on December 11, 2019. 

KRS 61.878(1)(i) and (j), respectively, create exceptions to the Open Records Act in the cases of: 

(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and] 

(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

The nature of the PSU document is such that it would consist of preliminary recommendations made prior to final agency action. Thus, the record was preliminary at the time of its creation. 

In 

University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, summarizing the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken, this Office stated: 

Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.

It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing 

City of Louisville v. Courier-Journal and Louisville Times Co. , 637 S.W.2d 658 (Ky. App. 1982)). The Kentucky Court of Appeals reaffirmed this analysis in 

University of Kentucky v. Lexington H-L Services, Inc. , 579 S.W.3d 858 (Ky. App. 2018). 

The question is whether PSU's "Preliminary Summary Findings and Conclusions" document was adopted as the basis of final agency action. In its response to this appeal dated December 18, 2019, LMPD stated that PSU's role is to conduct administrative investigations of employees "to determine whether a policy violation has occurred. PSU ultimately serves as a fact-finder for the LMPD Chief of Police; the Chief is the final decisionmaker as to whether charge of a policy violation is warranted and discipline appropriate." There are six potential dispositions of a charge, which LMPD explained as follows: 

SUSTAINED: Supported by a preponderance of the evidence; allegation(s) did occur. 

NOT SUSTAINED: Insufficient evidence to either prove or disprove the allegation(s). 

EXONERATED: Incident occurred, but was lawful and proper. 

UNFOUNDED: Allegation(s) is false or not factual. 

CLOSED: Withdrawn by complainant or complainant will not cooperate. 

CLOSED BY EXCEPTION: Retirement, resignation, or other.

In this case, the final disposition imposed by Chief Conrad was "Closed by Exception" because Officer Betts resigned prior to the completion of the process. 

These facts are analogous to those presented in 

Palmer v. Driggers , 60 S.W.3d 592 (Ky. App. 2001), in which a police officer had resigned prior to final disposition of a disciplinary proceeding. The court determined that, in such a case, "the 'final action' of the agency was to take 'no action on the complaint." Palmer , at 597 (quoting 00-ORD-107). Therefore, once the officer had resigned, "[t]he subsequent decision of the [agency] to end the hearings against [the officer] constituted its 'final action." Id. at 597. Where an internal investigative or disciplinary process is pre-empted by the employee's resignation, the agency "is not obligated to [disclose] the underlying investigative records because those records were not adopted as part of its final action," and thus they "retain their preliminary characterization." 10-ORD-053; see also 12-ORD-055. 

Appellant argues that the analysis should be different here because Officer Betts, shortly before his resignation, had purportedly received a notice of intent to terminate based upon the findings of PSU's investigation. LMPD responds that "[w]hether or not this is accurate is irrelevant" because "[t]he final action ultimately taken by Chief Conrad was to close the investigation with a disposition of 'Closed by Exception due to the subject employee's resignation," and that final disposition was not based on the PSU document. 

This Office agrees that the existence of a notice of intent to terminate would not alter the nature of the final agency action. LMPD's applicable Standard Operating Procedure provides as follows: 

If the Chief of Police believes that termination/ discharge is the correct discipline for a non-probationary member, the Chief's Office will provide, to the member, a statement citing the reason(s) and a pre-termination/ discharge opportunity to respond will be scheduled. ... If the member is terminated/discharged, the Chief's Office will notify the member, in writing, of the decision and the effective date of the termination/ discharge. 2

SOP 2.11.10 (emphasis added). Thus, if an officer is actually terminated, two documents are generated. A final "decision" to terminate is only issued after a preliminary notice of intent to dismiss and an opportunity to be heard. 3Accordingly, if Officer Betts received such a preliminary notice before choosing to resign, this fact would not alter Chief Conrad's final disposition of the matter, which was "Closed by Exception" due to the intervening resignation. 

This Office therefore finds that the document titled "Preliminary Summary Findings and Conclusions" did not lose its preliminary character under KRS 61.878(1)(i) and (j), because it was not adopted as the basis of the final agency action; i.e. , closing the case "by exception" following Officer Betts' resignation. Thus, LMPD did not violate the Act. 

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.

Footnotes 

Footnotes

1 The record on appeal does not reflect the date when LMPD received the request. Under KRS 61.880(1), a public agency must respond to an open records request within three days, excluding weekends and legal holidays.

2 Available at https://louisville-police.org/DocumentCenter/View/615/Standard-Operatin… (last visited Dec. 20, 2019).

3 See also KRS 15.520(6)(b) (charge of officer misconduct "shall set out the disciplinary action recommended or imposed"); KRS 15.520(6)(c) ("no public statements shall be made concerning the alleged violation ... until final disposition of the charges").



 

20-ORD-005

LLM Generated Data

Appellant: David Raper

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KSP did not violate the Open Records Act in denying David Raper's request for a specific photograph related to an extortion case. The decision in 17-ORD-269, which upheld the denial of the same photograph, was followed in this case. The denial was based on the exemption provided by KRS 61.878(1)(a) due to the highly personal and explicit nature of the photograph, which was deemed to constitute an unwarranted invasion of personal privacy. The decision affirms KSP's withholding of the photograph.

Cited Opinions

  • 17-ORD-269: F

    The decision in 17-ORD-269 upheld KSP's denial of a specific photograph in an extortion case, citing KRS 61.878(1)(a) as the basis for the denial.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSP violated the Act in denying David Raper's ("Appellant") April 29, 2019, request for certain records pertaining to "the extortion case involving Joshua T. Phillips, Dee A. Bowman aka Dee A. Phillips, and the Commonwealth[,]" originally filed in Spencer County Circuit Court on December 13, 2013. Specifically, he requested "a copy: of the investigative file(s), uniform citation(s), Shelby County Grand Jury indictment(s), any statements and affidavits from victim(s) and witnesses, copies of exhibits to include text messages and photos, a copy of any plea agreements, and any information dealing with restitution." Following some delays and subsequent correspondence between the parties, KSP provided all existing records that satisfied the request except for the "photograph of Todd Walls referenced in Trooper Hedges' [Narrative Report]." The photograph is currently the only record in dispute. 

By letter directed to the KSP Records Custodian on September 10, 2019, Appellant asked for a copy of the photograph referenced in the report, acknowledging "that the photograph is pornographic in nature." He also submitted a request by letter dated October 4, 2019, to KSP's Photo Lab, asking for a copy of the photograph, which "relates specifically to the extortion charge for which Mr. and Mrs. Phillips were also arrested and convicted." In his October 30, 2019, letter to the Records Custodian, Appellant noted that KSP had omitted "a photograph of Todd Walls apparently taken by Mr. Walls himself in the bathroom of the Taylorsville Police Department" from the records that KSP previously disclosed. In response to Appellant's October 30, 2019, letter, KSP denied his request for the specific photograph, citing KRS 61.878(1)(a), "as disclosure would constitute an unwarranted invasion of personal privacy." KSP also referenced 17-ORD-269 in support of its denial. Thereafter, Appellant filed this appeal. 

In response to this appeal, KSP reiterated its position regarding application of KRS 61.878(1)(a) to this photograph and noted that KSP previously withheld the identical photograph in a response this Office upheld in 17-ORD-269. In resolving 17-ORD-269, the Attorney General reviewed the photograph in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, before affirming the denial by KSP. Because this Office has already reviewed the subject photograph, and ultimately determined that KSP lawfully withheld it pursuant to KRS 61.878(1)(a), KSP asked this Office to follow the precedent established in 17-ORD-269 and find that it properly withheld the photograph. 1This Office agrees that the subject photograph has already been found exempt pursuant to KRS 61.878(1)(a). 17-ORD-269, p. 5. Accordingly, KSP did not violate the Act in denying Appellant's request. 

In 

Ky. Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records (or portions thereof). Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an "intrinsically situational" determination that can only be made in a "specific context." Id. See 

Cape Publications v. City of Louisville , 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required); 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013). 

The Court of Appeals refined this standard in 

Zink v. Com., Dep't of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828 (Ky. App. 1994), reasoning that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy." This determination "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Id. (citation omitted). The only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829. The result in Zink hinged on the fact that disclosure of the inherently private information "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Id. 

Having exercised this Office's authority under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, by reviewing the requested photograph in camera , this Office first acknowledged the "highly personal nature" of the subject photograph. As stated in 17-ORD-269 at p. 5 (emphasis added): 

[I]n one of the uniform citations supplied by [the Appellant] the defendants were charged with extorting money by threatening "that explicit pictures of the victim would be sent to his wife, boss, and Media in attempt to ruin the victim's reputation and credibility within the community." Since this photograph is of a private and explicit nature, and has no inherent relevance to how KSP performed its duties, we find that the balance weighs in favor of the privacy interest under KRS 61.878(1)(a), and thus the photograph was lawfully withheld .

 

The instant appeal presents no basis to depart from this governing precedent. Accordingly, this office affirms the denial of the Appellant's request on the basis of KRS 61.878(1)(a). 

Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 As in this case, in 17-ORD-269 this Office was asked to determine whether KSP violated the Act in the disposition of the Appellant's request to inspect "the KSP Investigative file on former Taylorsville Police Officer[ ] Todd Walls, involving extortion by Joshua Phillips and Dee Bowman."



 

20-ORD-005

LLM Generated Data

Appellant: David Raper

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KSP did not violate the Open Records Act in denying David Raper's request for a specific photograph related to an extortion case involving Joshua T. Phillips and Dee A. Bowman. The decision in 17-ORD-269, which upheld the denial of the same photograph based on KRS 61.878(1)(a), was followed in this case. The denial was deemed lawful as the requested photograph was of a highly personal and explicit nature, with no inherent relevance to KSP's duties, thus justifying its withholding under the privacy interest exception of KRS 61.878(1)(a).

Cited Opinions

  • 17-ORD-269: F

    The decision in 17-ORD-269 upheld KSP's denial of a specific photograph in an extortion case, citing KRS 61.878(1)(a) as the basis for withholding the photograph.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSP violated the Act in denying David Raper's ("Appellant") April 29, 2019, request for certain records pertaining to "the extortion case involving Joshua T. Phillips, Dee A. Bowman aka Dee A. Phillips, and the Commonwealth[,]" originally filed in Spencer County Circuit Court on December 13, 2013. Specifically, he requested "a copy: of the investigative file(s), uniform citation(s), Shelby County Grand Jury indictment(s), any statements and affidavits from victim(s) and witnesses, copies of exhibits to include text messages and photos, a copy of any plea agreements, and any information dealing with restitution." Following some delays and subsequent correspondence between the parties, KSP provided all existing records that satisfied the request except for the "photograph of Todd Walls referenced in Trooper Hedges' [Narrative Report]." The photograph is currently the only record in dispute. 

By letter directed to the KSP Records Custodian on September 10, 2019, Appellant asked for a copy of the photograph referenced in the report, acknowledging "that the photograph is pornographic in nature." He also submitted a request by letter dated October 4, 2019, to KSP's Photo Lab, asking for a copy of the photograph, which "relates specifically to the extortion charge for which Mr. and Mrs. Phillips were also arrested and convicted." In his October 30, 2019, letter to the Records Custodian, Appellant noted that KSP had omitted "a photograph of Todd Walls apparently taken by Mr. Walls himself in the bathroom of the Taylorsville Police Department" from the records that KSP previously disclosed. In response to Appellant's October 30, 2019, letter, KSP denied his request for the specific photograph, citing KRS 61.878(1)(a), "as disclosure would constitute an unwarranted invasion of personal privacy." KSP also referenced 17-ORD-269 in support of its denial. Thereafter, Appellant filed this appeal. 

In response to this appeal, KSP reiterated its position regarding application of KRS 61.878(1)(a) to this photograph and noted that KSP previously withheld the identical photograph in a response this Office upheld in 17-ORD-269. In resolving 17-ORD-269, the Attorney General reviewed the photograph in camera pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, before affirming the denial by KSP. Because this Office has already reviewed the subject photograph, and ultimately determined that KSP lawfully withheld it pursuant to KRS 61.878(1)(a), KSP asked this Office to follow the precedent established in 17-ORD-269 and find that it properly withheld the photograph. 1This Office agrees that the subject photograph has already been found exempt pursuant to KRS 61.878(1)(a). 17-ORD-269, p. 5. Accordingly, KSP did not violate the Act in denying Appellant's request. 

In 

Ky. Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records (or portions thereof). Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an "intrinsically situational" determination that can only be made in a "specific context." Id. See 

Cape Publications v. City of Louisville , 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required); 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013). 

The Court of Appeals refined this standard in 

Zink v. Com., Dep't of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828 (Ky. App. 1994), reasoning that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy." This determination "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Id. (citation omitted). The only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829. The result in Zink hinged on the fact that disclosure of the inherently private information "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Id. 

Having exercised this Office's authority under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, by reviewing the requested photograph in camera , this Office first acknowledged the "highly personal nature" of the subject photograph. As stated in 17-ORD-269 at p. 5 (emphasis added): 

[I]n one of the uniform citations supplied by [the Appellant] the defendants were charged with extorting money by threatening "that explicit pictures of the victim would be sent to his wife, boss, and Media in attempt to ruin the victim's reputation and credibility within the community." Since this photograph is of a private and explicit nature, and has no inherent relevance to how KSP performed its duties, we find that the balance weighs in favor of the privacy interest under KRS 61.878(1)(a), and thus the photograph was lawfully withheld .

The instant appeal presents no basis to depart from this governing precedent. Accordingly, this office affirms the denial of the Appellant's request on the basis of KRS 61.878(1)(a). 

Either party may appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 As in this case, in 17-ORD-269 this Office was asked to determine whether KSP violated the Act in the disposition of the Appellant's request to inspect "the KSP Investigative file on former Taylorsville Police Officer[ ] Todd Walls, involving extortion by Joshua Phillips and Dee Bowman."



 

20-ORD-007

LLM Generated Data

Appellant: WAVE3 News

Agency: Louisville Metro Police Department

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Louisville Metro Police Department did not violate the Open Records Act in denying WAVE3 News' request for a document titled 'Preliminary Summary Findings and Conclusions' relating to Officer Kenneth Betts. The decision was based on the fact that the document was considered preliminary and had not been adopted as part of the final agency action, which was the closing of the case 'by exception' following Officer Betts' resignation. Therefore, the agency's denial was found to be in compliance with the law.

Cited Opinions

  • 01-ORD-47: F

    The decision explains the concept that once preliminary records are adopted as part of final agency action, they lose their preliminary characterization.

  • 01-ORD-83: O

    This decision reaffirms the analysis regarding the adoption of preliminary records as part of final agency action.

  • 00-ORD-107: O

    The decision in this case determined that when an internal investigative or disciplinary process is preempted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records.

  • 10-ORD-053: O

    This decision states that when an internal investigative or disciplinary process is preempted by an employee's resignation, the agency is not obligated to disclose the underlying investigative records.

  • 12-ORD-055: O

    Similar to 10-ORD-053, this decision addresses the situation where an internal investigative or disciplinary process is preempted by an employee's resignation.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act ("the Act") in its denial of a requegt from WAVE3 News ("Appellant") dated September 4; 2019, for a copy of a Professional Standards Unit ("PSU") document titled "Preliminary Summary Findings and conclusions," dated September 5, 2013, relating to Officer Kenneth Betts. For the reasons that follow, this Office finds no violation of the Act. 

LMPD denied Appellant's request on September 20, 2019, 1stating that the document was "exempt from release pursuant to KRS 61.878(1)(i) and (j) which exempts the release of those that express opinions and are preliminary in nature." LMPD stated that "[k]eeping preliminary documents exempt from disclosure protects the integrity of the investigations by allowing investigators to free [ sic ] express opinions without fear of retaliation. Further, this investigation was 'Closed by Exception by Chief Conrad meaning the. Chief did not incorporate any of these records in making his final decision to close the investigation due to Kenneth Betts' resignation." Appellant initiated this appeal on December 11, 2019. 

KRS 61.878(1)(i) and (j), respectively, create exceptions to the Open Records Act in the cases of: 

(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and] 

(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

 

The nature of the PSU document is such that it would consist of preliminary recommendations made prior to final agency action. Thus, the record was preliminary at the time of its creation. 

In 

University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, summarizing the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken, this Office stated: 

Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.

 

It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing 

City of Louisville v. Courier-Journal and Louisville Times Co. , 637 S.W.2d 658 (Ky. App. 1982)). The Kentucky Court of Appeals reaffirmed this analysis in 

University of Kentucky v. Lexington H-L Services, Inc. , 579 S.W.3d 858 (Ky. App. 2018). 

The question is whether PSU's "Preliminary Summary Findings and Conclusions" document was adopted as the basis of final agency action. In its response to this appeal dated December 18, 2019, LMPD stated that PSU's role is to conduct administrative investigations of employees "to determine whether a policy violation has occurred. PSU ultimately serves as a fact-finder for the LMPD Chief of Police; the Chief is the final decisionmaker as to whether charge of a policy violation is warranted and discipline appropriate." There are six potential dispositions of a charge, which LMPD explained as follows: 

SUSTAINED: Supported by a preponderance of the evidence; allegation(s) did occur. 

NOT SUSTAINED: Insufficient evidence to either prove or disprove the allegation(s). 

EXONERATED: Incident occurred, but was lawful and proper. 

UNFOUNDED: Allegation(s) is false or not factual. 

CLOSED: Withdrawn by complainant or complainant will not cooperate. 

CLOSED BY EXCEPTION: Retirement, resignation, or other.

 

In this case, the final disposition imposed by Chief Conrad was "Closed by Exception" because Officer Betts resigned prior to the completion of the process. 

These facts are analogous to those presented in 

Palmer v. Driggers , 60 S.W.3d 592 (Ky. App. 2001), in which a police officer had resigned prior to final disposition of a disciplinary proceeding. The court determined that, in such a case, "the 'final action' of the agency was to take 'no action on the complaint." Palmer , at 597 (quoting 00-ORD-107). Therefore, once the officer had resigned, "[t]he subsequent decision of the [agency] to end the hearings against [the officer] constituted its 'final action." Id. at 597. Where an internal investigative or disciplinary process is pre-empted by the employee's resignation, the agency "is not obligated to [disclose] the underlying investigative records because those records were not adopted as part of its final action," and thus they "retain their preliminary characterization." 10-ORD-053; see also 12-ORD-055. 

Appellant argues that the analysis should be different here because Officer Betts, shortly before his resignation, had purportedly received a notice of intent to terminate based upon the findings of PSU's investigation. LMPD responds that "[w]hether or not this is accurate is irrelevant" because "[t]he final action ultimately taken by Chief Conrad was to close the investigation with a disposition of 'Closed by Exception due to the subject employee's resignation," and that final disposition was not based on the PSU document. 

This Office agrees that the existence of a notice of intent to terminate would not alter the nature of the final agency action. LMPD's applicable Standard Operating Procedure provides as follows: 

If the Chief of Police believes that termination/ discharge is the correct discipline for a non-probationary member, the Chief's Office will provide, to the member, a statement citing the reason(s) and a pre-termination/ discharge opportunity to respond will be scheduled. ... If the member is terminated/discharged, the Chief's Office will notify the member, in writing, of the decision and the effective date of the termination/ discharge. 2

 

SOP 2.11.10 (emphasis added). Thus, if an officer is actually terminated, two documents are generated. A final "decision" to terminate is only issued after a preliminary notice of intent to dismiss and an opportunity to be heard. 3Accordingly, if Officer Betts received such a preliminary notice before choosing to resign, this fact would not alter Chief Conrad's final disposition of the matter, which was "Closed by Exception" due to the intervening resignation. 

This Office therefore finds that the document titled "Preliminary Summary Findings and Conclusions" did not lose its preliminary character under KRS 61.878(1)(i) and (j), because it was not adopted as the basis of the final agency action; i.e. , closing the case "by exception" following Officer Betts' resignation. Thus, LMPD did not violate the Act. 

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.

Footnotes 

Footnotes

1 The record on appeal does not reflect the date when LMPD received the request. Under KRS 61.880(1), a public agency must respond to an open records request within three days, excluding weekends and legal holidays.

2 Available at https://louisville-police.org/DocumentCenter/View/615/Standard-Operatin… (last visited Dec. 20, 2019).

3 See also KRS 15.520(6)(b) (charge of officer misconduct "shall set out the disciplinary action recommended or imposed"); KRS 15.520(6)(c) ("no public statements shall be made concerning the alleged violation ... until final disposition of the charges").



 

20-ORD-008

LLM Generated Data

Appellant: Vincent F. Heuser, Jr.

Agency: the Commission

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Commission violated the Open Records Act by delaying the response to the requests beyond the specified time frame. The Commission failed to meet its burden of proof for requests 3, 4, and 6 as they did not provide clear and convincing evidence that honoring these requests would be unreasonably burdensome. However, the Commission properly denied request 7. The Commission did meet its burden of proof for requests 8 through 21 by providing clear and convincing evidence that responding to these requests would create an unreasonable burden for the agency.

Cited Opinions

  • 16-ORD-068: O

    Request 7 was found to be a request for information that the Commission properly denied.

  • 18-ORD-071: M

    The Commission failed to provide clear and convincing evidence that honoring requests 3, 4, 6, and 7 would be unreasonably burdensome.

  • 08-ORD-167: F

    The Commission provided clear and convincing evidence that responding to requests 8 through 21 would create an unreasonable burden for the agency.

  • 99-ORD-20: O

    The decision in this case analyzed the provision of KRS 344.250(6) and found that the level of information available for public inspection depends on the progress of the proceeding.

  • OAG 85-5: O

    This opinion analyzed the provision of KRS 344.250(6) and provided guidance on what information obtained by the commission can be made public.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

The issue presented in this appeal is whether the Commission violated the Open Records Act ("Act") in the disposition of requests for records from Vincent F. Heuser, Jr. ("Appellant"). For the reasons stated below, this Office finds that the Commission did not meet its burden of proof regarding requests 3, 4, and 6. This Office finds request 7 to be a request for information that the Commission properly denied. This Office finds that the Commission met its burden of proof and properly denied requests 8 through 21. 

On August 30, 2019, Louisville Metro Government ("LMG") received Appellant's requests for 21 groups of Commission records. Requests 3 and 4 sought copies of "[a]ll documents relating to the meaning, scope, application, or interpretation of" Louisville/Jefferson County Metro Government Ordinances § 92.01, 92.05, 92.40, and 92.41. Request 6 sought copies of "[a]ll documents reflecting, mentioning, or relating to" public speeches and presentations of former or current members of the Commission relating to religion, sexual orientation, gender identity, sex. Request 7 sought "all documents reflecting, mentioning, or relating to statements, considerations, views or thoughts" of Commission members relating to 2013 KY H.B. 279. Requests 8-21 sought copies of "[a]ll documents relating to" complaints of discrimination based on "religion, sexual orientation, gender identity, or sex." Appellant did not appeal requests 1, 2 and 5. 

On September 5, 2019, LMG delayed Appellant's access to records, stating, "extension is required due to files that need to be retrieved from Metro Archives. You can expect to receive your record on or before October 11, 2019." Appellant acknowledged the delay, but asked LMG to send responsive records as they became available. On September 25, 2019, the Commission denied the requests as unreasonably burdensome. Appellant replied, stating that his requests were specific enough to allow the Commission to identify records in archives and delay his access. 

On October 11, 2019, the Commission clarified the denial, stating that the requests are, "so broadly and vaguely framed," that they require the agency "to conduct a search of every single record created or in its possession[.]" The Commission stated that requests 8-21 related to discrimination complaints containing records confidential and exempt under KRS Chapter 344, "[t]hus, your requests need to be tailored to identify the actual documents you seek and from which cases." 

On October 24, 2019, Appellant appealed, stating that the Commission's delay was misleading and unreasonable. Appellant argued that each request "only asks for documents on a narrow subject and describes that subject with particularity." 

On November 19, 2019, this Office requested additional documentation from the Commission under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. On January 3, 2020, the Commission supplemented the record stating, "it is impossible to determine how to conduct a search for responsive records as it is unknown what records are even being sought, especially as it pertains to requests 3, 4, 6, and 7." Regarding requests 8 through 21, the Commission stated that the requests implicated 2,153 discrimination case files from 1999 to present, including 882 housing discrimination complaints based on "race, religion, gender, national origin, color, and ethnicity," 398 discrimination complaints based on sexual orientation and gender identity, and 61 housing complaints based on sexual orientation and gender identity. The Commission stated that each case file contained records confidential under KRS Chapter 344, including complaints, investigations, evidence, conciliation agreements, and administrative orders. The Commission stated provisions of KRS Chapter 344 apply differently to each record, requiring its three employees to review every record in each case file to separate the exempt and non-exempt material. 

The Commission's Delayed Response Violated the Act

The Commission issued a written response to the requests within three business days. However, KRS 61.872(5) provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

 

In its original response to Appellant's request, the Commission stated the files were maintained in storage and would not be available until October 11, 2019, approximately three weeks following the date of the original request. However, on September 25, 2019, the Commission denied Appellant's request. On appeal, the Commission provided a legitimate and detailed explanation of the cause of the delay in providing access to records, referencing broadly framed requests that implicated numerous responsive case files and records. Given the broad scope of the requests, a reasonable delay would have been justified. However, the Commission is required to provide the justification for this delay within its initial response under KRS 61.872(5). Therefore, the Commission violated the Act. 

The Commission Failed to Meet its Burden of Proof for Requests 3, 4, and 6

The Commission argued that requests 3, 4, 6, and 7 were not stated with particularity to enable the Commission to search for responsive records. This Office agrees that request 7 was a request for information and not stated in manner that would allow a reasonable person to determine which documents Appellant was seeking. Request 7 sought "all documents reflecting, mentioning, or relating to statements, considerations, views, or thoughts" of Commission members. Because request 7 does not specify any category of documents, it is a request for information that the Commission has no duty to honor. 16-ORD-068. 

However, unlike request 7, requests 3, 4, and 6 all direct the Commission to specific categories of documents such as policies, procedures, guidelines, and speeches. These requests did provide the Commission with enough information to ascertain the substance of Appellant's request. Therefore, this Office disagrees with the Commission's position that requests 3, 4, and 6 were not stated with particularity. This Office turns next to the Commission's argument that a search for these documents would be unduly burdensome. 

The Commission did not provide clear and convincing evidence to support its claim that honoring requests 3, 4, and 6 created an unreasonable burden, as required by KRS 61.872(6). A public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)] since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence." 

Commonwealth v. Chestnut , 205 S.W.3d 655, 664 (Ky. 2008). "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." Id. at 665; 18-ORD-071. The public agency must support its claim with the facts and evidence, such as the volume of responsive records, the difficulty in locating or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. 18-ORD-071, p. 6; 08-ORD-167. 

The Commission failed to state any facts evidencing that requests 3, 4, and 6created an unreasonable burden in the initial responses, and merely addressed the difficulty in searching for responsive records on appeal. Insufficient evidence exists in the record that retrieving responsive records pertaining to the statements of past or present Commission members, or copies of responsive policies of the agency, would create an unreasonable burden for the agency. Accordingly, this Office finds that the Commission failed to provide clear and convincing evidence that honoring requests 3, 4, 6, and 7 would be unreasonably burdensome. 

The Commission Met its Burden of Proof for Requests 8 through 21

The Commission provided clear and convincing evidence on appeal that responding to the broadly framed requests in items 8 through 21 would create an unreasonable burden for the agency. Clear and convincing evidence exists in the record that Appellant's requests implicated 2,153 discrimination case file, each containing responsive records protected under the mandatory confidentiality provisions of KRS Chapter 344, incorporated into the Act by operation of KRS 61.878(1)(l), and that processing the requests would create an unreasonable burden for the agency. 

The Commission correctly observed that this Office has recognized the records exemption contained in KRS 344.250(6) 1, which provides: 

It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.

 

In OAG 85-5, this Office analyzed the provision and found that, "what is available for public inspection is dependent upon the level at which the proceeding has progressed." In that opinion, this Office observed: 

If the proceeding is at the level dealt with in KRS 344.200 [relating to allegations of an unlawful practice other than a discriminatory housing practice], and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. KRS 344.200(4) deals with a conciliation agreement and limits the information available to the "terms of the conciliation agreement." 

If the proceeding has progressed to the point of a hearing under KRS 344.210 [relating to allegations of a discriminatory housing practice], then the hearing transcript which is required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.

 

Id. at p. 3. "It is within the discretion of the Commission to determine when disclosure is 'reasonably necessary to the conduct of the proceeding...." Absent a clear abuse of this discretion, the Attorney General must defer to the Commission's interpretation and application of this provision." 99-ORD-20, p. 3. 

To respond to Appellant's broad request would have required the Commission's three employees to review potentially responsive records within the 2,153 case files, determine the nature of the discrimination alleged in the complaint, ascertain the stage of the proceedings, and apply the relevant provisions of KRS Chapter 344 to each record individually. This Office agrees that this undertaking would require an unduly burdensome dedication of staff and resources. Accordingly, the Commission met its burden of proof relating to requests 8 through 21 by clear and convincing evidence. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Incorporated into the Act pursuant to KRS 61.878(1)(l).



 

20-ORD-008

LLM Generated Data

Appellant: Vincent F. Heuser, Jr.

Agency: Commission

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Commission violated the Open Records Act by delaying the response to the requests beyond the allowed time frame. The Commission also failed to meet its burden of proof for requests 3, 4, and 6, as it did not provide clear and convincing evidence that honoring these requests would create an unreasonable burden. However, the Commission properly denied request 7 and met its burden of proof for requests 8 through 21. The decision allows for an appeal to be initiated in the appropriate circuit court, with notification to the Attorney General.

Cited Opinions

  • 16-ORD-068: O

    Request 7 was found to be a request for information that the Commission properly denied.

  • 18-ORD-071: F

    The Commission provided clear and convincing evidence that responding to requests 8 through 21 would create an unreasonable burden.

  • 08-ORD-167: M

    The Commission failed to provide clear and convincing evidence that honoring requests 3, 4, 6, and 7 would be unreasonably burdensome.

  • 99-ORD-20: O

    The decision in this case analyzed the provision of KRS 344.250(6) and found that certain information obtained by the commission should not be made public without consent.

  • OAG 85-5: O

    This opinion analyzed the provision of KRS 344.250(6) and discussed what information is available for public inspection depending on the level of the proceeding.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

The issue presented in this appeal is whether the Commission violated the Open Records Act ("Act") in the disposition of requests for records from Vincent F. Heuser, Jr. ("Appellant"). For the reasons stated below, this Office finds that the Commission did not meet its burden of proof regarding requests 3, 4, and 6. This Office finds request 7 to be a request for information that the Commission properly denied. This Office finds that the Commission met its burden of proof and properly denied requests 8 through 21. 

On August 30, 2019, Louisville Metro Government ("LMG") received Appellant's requests for 21 groups of Commission records. Requests 3 and 4 sought copies of "[a]ll documents relating to the meaning, scope, application, or interpretation of" Louisville/Jefferson County Metro Government Ordinances § 92.01, 92.05, 92.40, and 92.41. Request 6 sought copies of "[a]ll documents reflecting, mentioning, or relating to" public speeches and presentations of former or current members of the Commission relating to religion, sexual orientation, gender identity, sex. Request 7 sought "all documents reflecting, mentioning, or relating to statements, considerations, views or thoughts" of Commission members relating to 2013 KY H.B. 279. Requests 8-21 sought copies of "[a]ll documents relating to" complaints of discrimination based on "religion, sexual orientation, gender identity, or sex." Appellant did not appeal requests 1, 2 and 5. 

On September 5, 2019, LMG delayed Appellant's access to records, stating, "extension is required due to files that need to be retrieved from Metro Archives. You can expect to receive your record on or before October 11, 2019." Appellant acknowledged the delay, but asked LMG to send responsive records as they became available. On September 25, 2019, the Commission denied the requests as unreasonably burdensome. Appellant replied, stating that his requests were specific enough to allow the Commission to identify records in archives and delay his access. 

On October 11, 2019, the Commission clarified the denial, stating that the requests are, "so broadly and vaguely framed," that they require the agency "to conduct a search of every single record created or in its possession[.]" The Commission stated that requests 8-21 related to discrimination complaints containing records confidential and exempt under KRS Chapter 344, "[t]hus, your requests need to be tailored to identify the actual documents you seek and from which cases." 

On October 24, 2019, Appellant appealed, stating that the Commission's delay was misleading and unreasonable. Appellant argued that each request "only asks for documents on a narrow subject and describes that subject with particularity." 

On November 19, 2019, this Office requested additional documentation from the Commission under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. On January 3, 2020, the Commission supplemented the record stating, "it is impossible to determine how to conduct a search for responsive records as it is unknown what records are even being sought, especially as it pertains to requests 3, 4, 6, and 7." Regarding requests 8 through 21, the Commission stated that the requests implicated 2,153 discrimination case files from 1999 to present, including 882 housing discrimination complaints based on "race, religion, gender, national origin, color, and ethnicity," 398 discrimination complaints based on sexual orientation and gender identity, and 61 housing complaints based on sexual orientation and gender identity. The Commission stated that each case file contained records confidential under KRS Chapter 344, including complaints, investigations, evidence, conciliation agreements, and administrative orders. The Commission stated provisions of KRS Chapter 344 apply differently to each record, requiring its three employees to review every record in each case file to separate the exempt and non-exempt material. 

The Commission's Delayed Response Violated the Act

The Commission issued a written response to the requests within three business days. However, KRS 61.872(5) provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

In its original response to Appellant's request, the Commission stated the files were maintained in storage and would not be available until October 11, 2019, approximately three weeks following the date of the original request. However, on September 25, 2019, the Commission denied Appellant's request. On appeal, the Commission provided a legitimate and detailed explanation of the cause of the delay in providing access to records, referencing broadly framed requests that implicated numerous responsive case files and records. Given the broad scope of the requests, a reasonable delay would have been justified. However, the Commission is required to provide the justification for this delay within its initial response under KRS 61.872(5). Therefore, the Commission violated the Act. 

The Commission Failed to Meet its Burden of Proof for Requests 3, 4, and 6

The Commission argued that requests 3, 4, 6, and 7 were not stated with particularity to enable the Commission to search for responsive records. This Office agrees that request 7 was a request for information and not stated in manner that would allow a reasonable person to determine which documents Appellant was seeking. Request 7 sought "all documents reflecting, mentioning, or relating to statements, considerations, views, or thoughts" of Commission members. Because request 7 does not specify any category of documents, it is a request for information that the Commission has no duty to honor. 16-ORD-068. 

However, unlike request 7, requests 3, 4, and 6 all direct the Commission to specific categories of documents such as policies, procedures, guidelines, and speeches. These requests did provide the Commission with enough information to ascertain the substance of Appellant's request. Therefore, this Office disagrees with the Commission's position that requests 3, 4, and 6 were not stated with particularity. This Office turns next to the Commission's argument that a search for these documents would be unduly burdensome. 

The Commission did not provide clear and convincing evidence to support its claim that honoring requests 3, 4, and 6 created an unreasonable burden, as required by KRS 61.872(6). A public agency "faces a high proof threshold [in denying a request based on KRS 61.872(6)] since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence." 

Commonwealth v. Chestnut , 205 S.W.3d 655, 664 (Ky. 2008). "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." Id. at 665; 18-ORD-071. The public agency must support its claim with the facts and evidence, such as the volume of responsive records, the difficulty in locating or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. 18-ORD-071, p. 6; 08-ORD-167. 

The Commission failed to state any facts evidencing that requests 3, 4, and 6created an unreasonable burden in the initial responses, and merely addressed the difficulty in searching for responsive records on appeal. Insufficient evidence exists in the record that retrieving responsive records pertaining to the statements of past or present Commission members, or copies of responsive policies of the agency, would create an unreasonable burden for the agency. Accordingly, this Office finds that the Commission failed to provide clear and convincing evidence that honoring requests 3, 4, 6, and 7 would be unreasonably burdensome. 

The Commission Met its Burden of Proof for Requests 8 through 21

The Commission provided clear and convincing evidence on appeal that responding to the broadly framed requests in items 8 through 21 would create an unreasonable burden for the agency. Clear and convincing evidence exists in the record that Appellant's requests implicated 2,153 discrimination case file, each containing responsive records protected under the mandatory confidentiality provisions of KRS Chapter 344, incorporated into the Act by operation of KRS 61.878(1)(l), and that processing the requests would create an unreasonable burden for the agency. 

The Commission correctly observed that this Office has recognized the records exemption contained in KRS 344.250(6) 1, which provides: 

It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.

In OAG 85-5, this Office analyzed the provision and found that, "what is available for public inspection is dependent upon the level at which the proceeding has progressed." In that opinion, this Office observed: 

If the proceeding is at the level dealt with in KRS 344.200 [relating to allegations of an unlawful practice other than a discriminatory housing practice], and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. KRS 344.200(4) deals with a conciliation agreement and limits the information available to the "terms of the conciliation agreement." 

If the proceeding has progressed to the point of a hearing under KRS 344.210 [relating to allegations of a discriminatory housing practice], then the hearing transcript which is required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.

Id. at p. 3. "It is within the discretion of the Commission to determine when disclosure is 'reasonably necessary to the conduct of the proceeding...." Absent a clear abuse of this discretion, the Attorney General must defer to the Commission's interpretation and application of this provision." 99-ORD-20, p. 3. 

To respond to Appellant's broad request would have required the Commission's three employees to review potentially responsive records within the 2,153 case files, determine the nature of the discrimination alleged in the complaint, ascertain the stage of the proceedings, and apply the relevant provisions of KRS Chapter 344 to each record individually. This Office agrees that this undertaking would require an unduly burdensome dedication of staff and resources. Accordingly, the Commission met its burden of proof relating to requests 8 through 21 by clear and convincing evidence. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Incorporated into the Act pursuant to KRS 61.878(1)(l).



 

20-ORD-009

LLM Generated Data

Appellant: Bobby Brock

Agency: Kentucky Department for Libraries and Archives (KDLA)

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Kentucky Department for Libraries and Archives (KDLA) violated the Open Records Act by failing to respond to Bobby Brock's request within the required timeframe. However, KDLA is not obligated to provide records that are not subject to the Act's requirements, as court records are under the control of the Supreme Court. The decision emphasizes that disputes regarding access to court records must be resolved by the court, and KDLA's violation of the Act does not extend to the release of court records. The decision advises that a party aggrieved by this decision may appeal by initiating action in the appropriate circuit court, with notification to the Attorney General, who should not be named as a party in the action or any subsequent proceeding.

Cited Opinions

  • 15-ORD-216: O

    Cited as an example of court records not being subject to the Open Records Act, as they are considered the property of the Court of Justice and under the control of the Supreme Court.

  • 14-ORD-180: O

    Referenced for the same principle that records generated by the courts and judicial agencies are not subject to the Open Records Act.

  • 98-ORD-6: O

    Referred to establish that disputes relating to access to court records must be resolved by the court, as agencies like KDLA do not have the authority to release court records under their control.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On December 2, 2019, Bobby Brock ("Appellant") submitted an open records requested to the KDLA to inspect, "[a]ll files and briefs filed, as well as all motions filed in Kentucky Court of Appeals case no. 2001-CA-1604, Bobby D. Brock vs. Commonwealth of Kentucky." On December 10, 2019, Appellant appealed to this Office, asserting that KDLA failed to respond. 

On January 2, 2020, KDLA responded to the appeal, stating that it referred, the request to the KCOJ on December 4, 2019 because the requested records are Court records. However, KDLA did not provide evidence it responded to Appellant's original request in writing. On appeal, KDLA provided a copy of a Memorandum of Agreement ("MOA") between KDLA and KCOJ. Under the MOA, KDLA provides archival services to KCOJ, but KDLA must limit access to archived records in its possession to KCOJ personnel. The MOA also requires KDLA to refer open records requests pertaining to the courts records to KCOJ, and to comply with all orders of the Chief Justice of the Kentucky Supreme Court relating to court records. 

As a threshold matter, KRS 26A.200(1) provides that "[a]ll records which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court shall be the property of the Court of Justice and are subject to the control of the Supreme Court." The Kentucky Supreme Court has declared that records generated by the courts and judicial agencies are not subject to the Act. In Ex parte Farley , 570 S.W.2d 617, 624 (Ky. 1978), the Court held that "the custody and control of records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Thus, KCOJ records are court records, rather than public records subject to the Act. KRS 26A220; see also 15-ORD-216; 14-ORD-180. 

Although KDLA clearly possesses the records, the Supreme Court retains control of those documents under the MOA. 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 856 (Ky. 2013) ("The agency is responsible only for those records within its own custody and control." (emphasis added)). Thus, this Office cannot resolve any dispute relating to access to the KCOJ records, because, "disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2. 

While KDLA simply possesses the records and has no authority to release those records, KDLA remains a public agency subject to the Act's requirements. In particular, KDLA must still discharge its duty to respond to a request. Here, KDLA violated KRS 61.880(1), which provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." At a minimum, KDLA should have "notif[ied] the applicant" and "furnish[ed] the name and location of the official custodian of the agency's public records." For these reasons, KDLA violated the Act, but is under no obligation to provide records that are not subject to the Act's requirements. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-009

LLM Generated Data

Appellant: Bobby Brock

Agency: Kentucky Department for Libraries and Archives (KDLA)

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Kentucky Department for Libraries and Archives (KDLA) violated the Open Records Act by failing to respond to the request within the required timeframe and failing to notify the applicant of its decision. However, KDLA is not obligated to provide records that are not subject to the Act's requirements, as court records are not considered public records under the Act. The dispute regarding access to Kentucky Court of Justice (KCOJ) records must be resolved by the court. The decision can be appealed by initiating action in the appropriate circuit court, but the Attorney General should be notified of any action without being named as a party.

Cited Opinions

  • 15-ORD-216: O

    The decision is cited to establish that records generated by the courts and judicial agencies are not subject to the Open Records Act.

  • 14-ORD-180: O

    Referenced to support the argument that records generated by the courts and judicial agencies are not subject to the Act.

  • 98-ORD-6: O

    Cited to establish that disputes relating to access to court records must be resolved by the court, not by the agency holding the records.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On December 2, 2019, Bobby Brock ("Appellant") submitted an open records requested to the KDLA to inspect, "[a]ll files and briefs filed, as well as all motions filed in Kentucky Court of Appeals case no. 2001-CA-1604, Bobby D. Brock vs. Commonwealth of Kentucky." On December 10, 2019, Appellant appealed to this Office, asserting that KDLA failed to respond. 

On January 2, 2020, KDLA responded to the appeal, stating that it referred, the request to the KCOJ on December 4, 2019 because the requested records are Court records. However, KDLA did not provide evidence it responded to Appellant's original request in writing. On appeal, KDLA provided a copy of a Memorandum of Agreement ("MOA") between KDLA and KCOJ. Under the MOA, KDLA provides archival services to KCOJ, but KDLA must limit access to archived records in its possession to KCOJ personnel. The MOA also requires KDLA to refer open records requests pertaining to the courts records to KCOJ, and to comply with all orders of the Chief Justice of the Kentucky Supreme Court relating to court records. 

As a threshold matter, KRS 26A.200(1) provides that "[a]ll records which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court shall be the property of the Court of Justice and are subject to the control of the Supreme Court." The Kentucky Supreme Court has declared that records generated by the courts and judicial agencies are not subject to the Act. In Ex parte Farley , 570 S.W.2d 617, 624 (Ky. 1978), the Court held that "the custody and control of records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Thus, KCOJ records are court records, rather than public records subject to the Act. KRS 26A220; see also 15-ORD-216; 14-ORD-180. 

Although KDLA clearly possesses the records, the Supreme Court retains control of those documents under the MOA. 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 856 (Ky. 2013) ("The agency is responsible only for those records within its own custody and control." (emphasis added)). Thus, this Office cannot resolve any dispute relating to access to the KCOJ records, because, "disputes relating to access to court records must be resolved by the court." 98-ORD-6, p. 2. 

While KDLA simply possesses the records and has no authority to release those records, KDLA remains a public agency subject to the Act's requirements. In particular, KDLA must still discharge its duty to respond to a request. Here, KDLA violated KRS 61.880(1), which provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." At a minimum, KDLA should have "notif[ied] the applicant" and "furnish[ed] the name and location of the official custodian of the agency's public records." For these reasons, KDLA violated the Act, but is under no obligation to provide records that are not subject to the Act's requirements. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-010

LLM Generated Data

Appellant: Lawrence Trageser

Agency: Frankfort KSP post

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Frankfort KSP post did not violate the Open Records Act in denying the request for records reflecting the personnel file of a KSP employee named Spoynter. The denial was affirmed because the requester did not establish a prima facie case that the requested records exist. The agency conducted a good faith search and properly advised that no responsive records were found. The decision states that the agency did not violate the law. The decision also provides guidance on the adequacy of a public agency's search for records.

Cited Opinions

  • 02-ORD-120: O

    Cited to establish that the right to inspect and receive copies of public records only attaches if the records sought are prepared, owned, used, in the possession of or retained by a public agency.

  • 04-ORD-205: O

    Referenced to support the argument that a public agency cannot produce records that it does not have, and is not required to prove a negative to refute a claim that certain records exist.

  • 09-ORD-214: O

    Cited to explain that the requester must establish a prima facie case that the requested records exist in order to obtain relief.

  • 17-ORD-223: O

    Referenced to support the argument that in the absence of a prima facie showing or any evidence to support the belief that responsive records exist, the denial of the request is affirmed.

  • 12-ORD-030: O

    Cited to affirm the denial of a request for nonexistent records when the requester did not offer irrefutable proof that such records were created or still exist.

  • 18-ORD-126: O

    Referenced in affirming the denial of a request for records where there was no evidence to support the belief that the records exist.

  • 98-ORD-154: O

    Cited to explain that a public agency violates the law if it fails to advise the requester whether the records exist, but fulfills its duty by advising that the records being sought do not exist after a reasonable search.

  • 14-ORD-204: O

    Referenced in the context of a public agency conducting a good faith search for responsive records.

  • 05-ORD-109: O

    Cited to support the argument that a public agency discharges its duty under the law by advising that records being sought do not exist following a reasonable search.

  • 06-ORD-042: O

    Referenced in evaluating the adequacy of a public agency's search for records.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On November 21, 2019, Lawrence Trageser ("Appellant") mailed a request for records to the Frankfort KSP post seeking, "any and all records reflecting the personnel file of a KSP employee named Spoynter." On December 17, 2019, KSP denied the request, stating, "a search of [KSP] records was conducted and no records were found." 

On December 23, 2019, Appellant appealed the disposition of his request, stating, "a KSP employee so named SPOYNTER does exist and works in KSP dispatch within the Post 12 jurisdiction." Appellant attached a KSP computer assisted dispatch ("CAD") report containing a notation "Narrative By: 002/SPOYNTER" as evidence of the potential existence of responsive records. Appellant did not attach this CAD report to his initial request to KSP. 

On January 3, 2020, KSP responded to the appeal stating, "KSP does not possess any responsive records because there is no KSP employee named 'Spoynter.'" However, KSP stated that upon receiving the CAD report on appeal, KSP searched for and identified employees with "S" as the first letter of his or her name and a last name "Poynter." KSP provided Appellant copies of all existing personnel records for the identified employees with personal identifying information redacted under KRS 61.878(1)(a). KSP stated that it did not possess any other existing responsive records. 

KSP properly denied the request based on the nonexistence of responsive records. The right to inspect and receive copies of public records only attaches if the records sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To obtain relief, the requester must first establish a prima facie case that the requested records exist. Id. 

Appellant has produced no affirmative evidence, beyond mere assertions, that KSP possesses personnel records relating to "Spoynter." Therefore, this Office does "not have a sufficient basis on which to dispute the agency's representation that no such record [exists]." 09-ORD-214, pp. 3-4; 17-ORD-223. In the absence of the requisite prima facie showing, or any facts or evidence to support Appellant's belief that KSP possesses responsive records, the Attorney General affirms the denial of his request per Bowling. See also 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"); 18-ORD-126. 

KSP met its duty by conducting a good faith search for responsive records. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 14-ORD-204. The record shows that, upon receiving Appellant's request, KSP conducted "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]" 1 See 05-ORD-109, p. 3; 12-ORD-030. The record also shows that, with the benefit of the CAD report provided on appeal, KSP was able to search for and locate potentially responsive records and provided Appellant copies of the records it located. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. Accordingly, this Office finds that KSP did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In assessing the adequacy of a public agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citing Weissman v. Central Intelligence Agency , 565 F.2d 692, 697 (D.C. Cir. 1977)).



 

20-ORD-010

LLM Generated Data

Appellant: Lawrence Trageser

Agency: Frankfort KSP post

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Frankfort KSP post did not violate the Open Records Act in denying Lawrence Trageser's request for records reflecting the personnel file of a KSP employee named Spoynter. The decision affirms the denial based on the nonexistence of responsive records, as the requester did not provide sufficient evidence to support the belief that the records exist. The KSP conducted a good faith search for responsive records and properly advised the requester that the records being sought do not exist following a reasonable search. Therefore, the KSP did not violate the Act.

Cited Opinions

  • 02-ORD-120: O

    Establishes that the right to inspect and receive copies of public records only attaches if the records sought are prepared, owned, used, in the possession of or retained by a public agency.

  • 04-ORD-205: O

    Supports the principle that a public agency cannot produce records that it does not have, and is not required to prove a negative to refute an unsubstantiated claim of record existence.

  • 09-ORD-214: O

    States that the requester must establish a prima facie case that the requested records exist before the public agency is obligated to provide them.

  • 17-ORD-223: O

    Reiterates the requirement for the requester to provide affirmative evidence, beyond mere assertions, that the public agency possesses the requested records.

  • 12-ORD-030: O

    Affirms the denial of a request for nonexistent records when the requester does not offer irrefutable proof that such records were created or still exist.

  • 18-ORD-126: O

    Similar to 12-ORD-030, affirms the denial of a request for records that do not exist due to lack of evidence from the requester.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On November 21, 2019, Lawrence Trageser ("Appellant") mailed a request for records to the Frankfort KSP post seeking, "any and all records reflecting the personnel file of a KSP employee named Spoynter." On December 17, 2019, KSP denied the request, stating, "a search of [KSP] records was conducted and no records were found." 

On December 23, 2019, Appellant appealed the disposition of his request, stating, "a KSP employee so named SPOYNTER does exist and works in KSP dispatch within the Post 12 jurisdiction." Appellant attached a KSP computer assisted dispatch ("CAD") report containing a notation "Narrative By: 002/SPOYNTER" as evidence of the potential existence of responsive records. Appellant did not attach this CAD report to his initial request to KSP. 

On January 3, 2020, KSP responded to the appeal stating, "KSP does not possess any responsive records because there is no KSP employee named 'Spoynter.'" However, KSP stated that upon receiving the CAD report on appeal, KSP searched for and identified employees with "S" as the first letter of his or her name and a last name "Poynter." KSP provided Appellant copies of all existing personnel records for the identified employees with personal identifying information redacted under KRS 61.878(1)(a). KSP stated that it did not possess any other existing responsive records. 

KSP properly denied the request based on the nonexistence of responsive records. The right to inspect and receive copies of public records only attaches if the records sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To obtain relief, the requester must first establish a prima facie case that the requested records exist. Id. 

Appellant has produced no affirmative evidence, beyond mere assertions, that KSP possesses personnel records relating to "Spoynter." Therefore, this Office does "not have a sufficient basis on which to dispute the agency's representation that no such record [exists]." 09-ORD-214, pp. 3-4; 17-ORD-223. In the absence of the requisite prima facie showing, or any facts or evidence to support Appellant's belief that KSP possesses responsive records, the Attorney General affirms the denial of his request per Bowling. See also 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"); 18-ORD-126. 

KSP met its duty by conducting a good faith search for responsive records. A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the" records exist, but discharges its duty under the Act in advising that records being sought do not exist following a reasonable search, and explaining why, if appropriate. 98-ORD-154, p. 2 (citation omitted); 14-ORD-204. The record shows that, upon receiving Appellant's request, KSP conducted "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]" 1 See 05-ORD-109, p. 3; 12-ORD-030. The record also shows that, with the benefit of the CAD report provided on appeal, KSP was able to search for and locate potentially responsive records and provided Appellant copies of the records it located. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. Accordingly, this Office finds that KSP did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In assessing the adequacy of a public agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citing Weissman v. Central Intelligence Agency , 565 F.2d 692, 697 (D.C. Cir. 1977)).



 

20-ORD-014

LLM Generated Data

Appellant: Glenn Hayden

Agency: the Board

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Board violated the Act by failing to issue a timely disposition of the appellant's request. The Board rejected the request with a single sentence without providing a proper explanation for the nonexistence of records or the distinction between requests for information and requests for records. The appellant's valid request was not adequately addressed, leading to a violation of the Act.

Cited Opinions

  • 18-ORD-110: O

    The decision states that the appeal is moot as to the document that was provided to the appellant, which was a copy of the advertisement.

  • 16-ORD-068: O

    The decision clarifies that the Act does not require public agencies to honor requests for information, only requests for records.

  • 99-ORD-98: O

    This decision establishes that a public agency cannot provide access to a record that does not exist, and if the record does exist, it must be provided.

  • 01-ORD-38: O

    It is mentioned that if a record does not exist, the agency must clearly state so, and if it does exist, it must be provided.

  • 17-ORD-247: O

    The decision emphasizes that the Board was obligated to issue a written response within three business days, stating whether it would provide the requested records and the specific exception for withholding if applicable.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Board violated the Act in the disposition of a November 4, 2019, request by Glenn Hayden ("Appellant") for records relating to a public notice submitted by the Board for publication in the Mayfield Messenger regarding the examination of voting machines. For the reasons that follow, this Office finds that the Board violated the Act by failing to issue a timely disposition of Appellant's request. 

Appellant requested "a copy of the initial Ad" and a copy of "the Request for Procurement and/or Purchase Order -- or BPA -- or MOA/MOU for authorizing payment." In addition, he asked for "signatures/information" as to the following questions: "Who initiated the writing of this ad? ... Who proof-read this ad for accuracy? ... Who signed off as the 'Approving Official' for publishing [the ad]?" 

On November 7, 2019, Graves County Clerk Kimberly D. Gills, as Chair of the Board, issued a one-sentence response: "Per your open records request dated November 4, 2019[,] your request does not comply with Kentucky open records act under KRS chapter 61." Appellant initiated this appeal on January 2, 2020. 

On January 13, 2020, the clerk responded to the appeal, stating that she had "supplied to Mr. Hayden the records that [she] could determine were requested," which consisted of "a copy of the advertisement." She characterized the majority of the request as seeking "information under the guise of an official open records request." As for the other documents listed by Appellant, she stated that Appellant was merely "informing the county election board of procedures that he believes should have taken place and policies he believes should be enacted, and therefore those documents should exist, and not requesting specific records or docume[n]ts." 

To make a request under the Act requires a "[w]ritten application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.872(2)(a). Since Appellant's request complied with the statute, the Board could not require more and simply reject the request. 

Inasmuch as the Board, at some point, provided Appellant a copy of the advertisement, this appeal is moot as to that document. 18-ORD-110. As to the three questions posed in Appellant's request, the Act does not require public agencies to honor requests for information, but only requests for records. KRS 61.872; 16-ORD-068. 

With regard to the remainder of the request, the clerk implies, without stating explicitly, that the "Request for Procurement," "Purchase Order," "BPA," or "MOA/MOU" is a nonexistent record that Appellant merely "believes ... should exist." A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. Nevertheless, if the record does not exist, it is "incumbent on the [agency] to so state in clear and direct terms." 01-ORD-38. Therefore, if any such record exists, it must be provided. 17-ORD-247. 

Having received a valid request, the Board was obligated to issue, within three business days, a written response stating whether it would provide the requested records and, if not, "the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). The Board failed to explain the nonexistence of records, if they do not in fact exist, and failed to explain that requests for information need not be honored. It simply rejected Appellant's request with a single sentence. The Board therefore violated the Act. 

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.



 

20-ORD-015

LLM Generated Data

Appellant: Eric Anthony

Agency: GRCC

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

GRCC violated the Open Records Act by failing to provide a brief explanation as to how KRS 197.025(1) and (2) applied to the requested records in its final disposition of the request. However, GRCC's denial of certain records based on KRS 197.025(1) was found to be justified after providing additional explanation and redacting information that posed a security risk. The Attorney General found GRCC's argument persuasive in withholding certain portions of the records to prevent security risks.

Cited Opinions

  • 96-ORD-179: O

    This decision recognizes that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny access to records if disclosure is deemed to constitute a threat to security.

  • 03-ORD-190: F

    This decision affirms the denial of a request for incident reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 19-ORD-110: O

    This decision extends the application of KRS 197.025(1) to any records where disclosure poses a security threat.

  • 96-ORD-204: O

    This decision upholds the denial of a request for incident reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 07-ORD-039: O

    This decision supports the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 16-ORD-071: O

    This decision supports the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 17-ORD-097: O

    This decision supports the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 10-ORD-056: O

    This decision supports the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 10-ORD-063: O

    This decision supports the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 12-ORD-123: O

    This decision supports the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 08-ORD-251: O

    This decision supports the denial of requests for information regarding other individuals contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 11-ORD-177: O

    This decision supports the denial of requests for conflict sheets based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 92-ORD-131: O

    This decision supports the denial of requests for psychological evaluations of inmates based on KRS 197.025(1) to prevent retaliation against inmates or security staff.

  • 00-ORD-125: O

    This decision recognizes that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny access to records if disclosure is deemed to constitute a threat to security.

  • 09-ORD-007: O

    This decision states that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot.

  • 18-ORD-211: O

    This decision states that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether GRCC violated the Act in partially denying Eric Anthony's ("Appellant") November 7, 2019, request for a copy of the audio recording of the September 10, 2019, adjustment hearings pertaining to Disciplinary Report ("DR") Numbers GRCC-2019-00946 and GRCC-2019-02955, a copy of certain photographs relating to DR No. GRCC-2019-00946, a copy of the Internal Affairs ("IA") Report [of] Investigation for DR No. GRCC-2019-02955 prepared by Lieutenant Joseph Foe, and one copy of "the written or audio[-]recorded statements produced by former officer Brandon Geary, pertaining to [DR No.] GRCC-2019-02955." By letter directed to Appellant on December 9, 2019, GRCC advised that a copy of the photograph relating to DR No. GRCC-2019-00946 was enclosed. However, GRCC denied the remainder of the request, including "audio recordings, [IA] reports, and anything pertaining to former officer Brandon Geary's case," because disclosure "would constitute a threat to the security of inmates, the institution, institutional staff, or others, and cannot be provided due to KRS 197.025(1) and KRS 61.878(1)(l)." This appeal followed. 

In response to this appeal, GRCC reconsidered its original position and agreed to provide Appellant with a copy of the audio recordings pertaining to DR No. GRCC-2019-02955 and DR No. GRCC-2019-00946 in addition to a copy of the requested IA Report "with redacted [sic] for information that does not make specific reference to you and disclosure of which would pose a security risk to the institution." However, GRCC continued to maintain that former officer Geary's recorded statement "cannot be redacted, and disclosure would pose a security risk to the institution." 1 

In relevant part, KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). GRCC violated KRS 61.880(1) by failing to provide a brief explanation as to how KRS 197.025(1) and (2) applied to the requested records in its December 9, 2019 final disposition of the request. GRCC merely cited the statutes. Although GRCC ultimately provided sufficient explanation to justify its denial as to records that remained in dispute to this Office following additional questioning, the fact such questioning was necessary demonstrates the deficient explanation afforded Appellant prior to appeal. 

In its first response to this Office, GRCC enclosed a copy of an e-mail from Lt. Foe confirming that "names and other information" were redacted from the IA Report "for the safety of other inmates." A copy of the heavily redacted IA Report was also attached to GRCC's response. GRCC further argued that disclosure of the audio recording of former officer Geary's statement, which cannot be redacted, "would pose a great risk to the other inmate involved[.]" 

Pursuant to KRS 61.880(1)(c) and 40 KAR 1:030 § 3, this Office subsequently asked GRCC for additional information. Specifically, this Office requested that GRCC identify which portions of the "Report of Investigation" it withheld pursuant to KRS 197.025(1), and specify how disclosure would pose a security risk to GRCC in as much detail as possible without defeating the purpose for which GRCC claimed that exemption. In addition, this Office asked GRCC to specify which portions of the IA Report it withheld pursuant to KRS 197.025(2). Finally, this Office asked GRCC to provide a blank copy of the Report for context in which to review the redacted version it released to Appellant. GRCC promptly complied. By e-mail dated January 21, 2020, GRCC provided a supplemental response from Lt. Foe. He stated: 

The paragraphs of the report that were redacted contained information from inmates that were interviewed and gave information on various details of how the Officer was getting the drugs into the prison, they also contain information about the investigation leading to the arrest of the Officer as well as the name[s] of the Inmates that gave information on [Appellant]. The redacted portions of the report are not in relation to [Appellant's] involvement and would pose a grave risk to the other Inmates that gave information that had nothing to do with [Appellant] as well as risking other confidential parts of the investigation about the former Officer.

 

Based on this additional explanation, and our inspection of the blank Report provided, this Office finds GRCC's argument persuasive. 

KRS 197.025(1) provides: 

KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

 

In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190; 19-ORD-110. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190 (affirming denial of request for incident reports because allowing inmates to view such reports would provide "'a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution'"). Since its enactment in 1990, this Office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to extraordinary occurrence reports ("EORs")(07-ORD-039, 16-ORD-071, 17-ORD-097); personnel statements contained in EORs (10-ORD-056, 10-ORD-063, 12-ORD-123); information regarding other individuals contained in EORs (08-ORD-251); conflict sheets (OAG 91-136, 11-ORD-177); and psychological evaluations of inmates (92-ORD-1314). 

Here, GRCC determined, in a proper exercise of its discretion, that disclosing portions of the requested IA Report would pose a security threat to GRCC staff, other inmates, and the institution; likewise, GRCC determined that disclosing the audio recording of former officer Geary's statement would also pose a great security risk. The Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 11-ORD-177; 17-ORD-097. As before, this Office declines to substitute its judgment for that of the correctional facility or DOC. In summary, GRCC properly relied upon KRS 197.025(1) in redacting significant portions of the requested IA Report and in withholding the audio recording of former officer Geary's statement. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 GRCC asserted this appeal is moot as to recordings of the adjustment hearings and the redacted IA Report it agreed to provide upon receipt of payment. However, 40 KAR 1:030, § 6, provides, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, issues regarding the photograph and the audio recordings that GRCC provided in their entirety have been rendered moot per 40 KAR 1:030 § 6; issues regarding the redacted IA Report and the audio recording of former officer Geary's statement have not been. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot." 09-ORD-007, p. 5; 18-ORD-211.



 

20-ORD-014

LLM Generated Data

Appellant: Glenn Hayden

Agency: the Board

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Board violated the Open Records Act by failing to issue a timely disposition of the appellant's request. The Board rejected the request with a single sentence without providing a proper explanation or stating the nonexistence of records if they do not exist. The appellant's request for specific records was not adequately addressed, leading to a violation of the Act.

Cited Opinions

  • 18-ORD-110: O

    The decision states that the appeal is moot as to the document that was provided to the appellant, which was a copy of the advertisement.

  • 16-ORD-068: O

    The decision clarifies that the Act does not require public agencies to honor requests for information, only requests for records.

  • 99-ORD-98: O

    Cited to establish that a public agency cannot provide access to a record that does not exist, and if the record does exist, it must be provided.

  • 01-ORD-38: O

    States that if a record does not exist, the agency must clearly state so, and if it does exist, it must be provided.

  • 17-ORD-247: O

    Referenced to establish that the Board was obligated to issue a written response within three business days, stating whether it would provide the requested records and the specific exception for withholding if applicable.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Board violated the Act in the disposition of a November 4, 2019, request by Glenn Hayden ("Appellant") for records relating to a public notice submitted by the Board for publication in the Mayfield Messenger regarding the examination of voting machines. For the reasons that follow, this Office finds that the Board violated the Act by failing to issue a timely disposition of Appellant's request. 

Appellant requested "a copy of the initial Ad" and a copy of "the Request for Procurement and/or Purchase Order -- or BPA -- or MOA/MOU for authorizing payment." In addition, he asked for "signatures/information" as to the following questions: "Who initiated the writing of this ad? ... Who proof-read this ad for accuracy? ... Who signed off as the 'Approving Official' for publishing [the ad]?" 

On November 7, 2019, Graves County Clerk Kimberly D. Gills, as Chair of the Board, issued a one-sentence response: "Per your open records request dated November 4, 2019[,] your request does not comply with Kentucky open records act under KRS chapter 61." Appellant initiated this appeal on January 2, 2020. 

On January 13, 2020, the clerk responded to the appeal, stating that she had "supplied to Mr. Hayden the records that [she] could determine were requested," which consisted of "a copy of the advertisement." She characterized the majority of the request as seeking "information under the guise of an official open records request." As for the other documents listed by Appellant, she stated that Appellant was merely "informing the county election board of procedures that he believes should have taken place and policies he believes should be enacted, and therefore those documents should exist, and not requesting specific records or docume[n]ts." 

To make a request under the Act requires a "[w]ritten application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.872(2)(a). Since Appellant's request complied with the statute, the Board could not require more and simply reject the request. 

Inasmuch as the Board, at some point, provided Appellant a copy of the advertisement, this appeal is moot as to that document. 18-ORD-110. As to the three questions posed in Appellant's request, the Act does not require public agencies to honor requests for information, but only requests for records. KRS 61.872; 16-ORD-068. 

With regard to the remainder of the request, the clerk implies, without stating explicitly, that the "Request for Procurement," "Purchase Order," "BPA," or "MOA/MOU" is a nonexistent record that Appellant merely "believes ... should exist." A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. Nevertheless, if the record does not exist, it is "incumbent on the [agency] to so state in clear and direct terms." 01-ORD-38. Therefore, if any such record exists, it must be provided. 17-ORD-247. 

Having received a valid request, the Board was obligated to issue, within three business days, a written response stating whether it would provide the requested records and, if not, "the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). The Board failed to explain the nonexistence of records, if they do not in fact exist, and failed to explain that requests for information need not be honored. It simply rejected Appellant's request with a single sentence. The Board therefore violated the Act. 

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.



 

20-ORD-013

LLM Generated Data

Appellant: The State Journal

Agency: KSU

AG: Daniel Cameron

AAG: James M. Herrick

Summary

KSU violated the Act by denying access to Ms. Lang's payroll records and a grievance document, failing to specify the purpose for redactions, not conducting an adequate search, and not responding to specific portions of requests. KSU also subverted the Act by prohibiting the use of a personal device to copy records. However, KSU lawfully denied inspection of Ms. Lang's performance evaluation.

Cited Opinions

  • 17-ORD-101: O

    The decision is cited for the fact that an agency must make a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested.

  • 17-ORD-120: O

    The decision is cited for the fact that an agency must articulate a privacy interest when withholding records.

  • 07-ORD-125: O

    The decision is cited to show that under certain conditions, an agency's request for scheduling an appointment to inspect records can subvert the intent of the Act.

  • 16-ORD-185: O

    The decision is cited for the fact that an agency must state the specific exception authorizing the withholding of a record when partially denying inspection.

  • 15-ORD-182: O

    The decision is cited for the violation found when an agency continually cancels inspection appointments.

  • 93-ORD-48: O

    The decision is cited for the violation found when an agency limits inspection hours unreasonably.

  • 02-ORD-144: O

    The decision is cited for the agency's duty to state clearly if there are no records responsive to a certain portion of a request.

  • 17-ORD-247: O

    The decision is cited for the fact that an agency must explain how an exception under KRS 61.878(1) applies to a withheld record.

  • 07-ORD-252: O

    The decision is cited for the recognition that the right to obtain copies is correlative to the right to inspect records.

  • 11-ORD-166: O

    The decision is cited for the fact that an agency subverts the intent of the Act by prohibiting the public from photographing records with a personal device without proper justification.

  • 16-ORD-211: O

    The decision is cited for the violation found when an agency fails to issue a written denial citing the specific exception authorizing the withholding of a record.

  • 95-ORD-96: O

    The decision is cited for the agency's duty to make a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested.

  • 19-ORD-025: O

    The decision is cited for the violation found when an agency fails to conduct an adequate search prior to responding to a request.

  • 00-ORD-168: O

    The decision is cited for the fact that an agency must explain how an exception under KRS 61.878(1) applies to a withheld record.

  • 19-ORD-227: O

    The decision is cited for the violation found when an agency fails to articulate a privacy interest when withholding a record.

  • 10-ORD-082: O

    The decision is cited for the balance decisively favoring disclosure when an agency fails to articulate a privacy interest.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSU violated the Act in its disposition of requests by The State Journal ("Appellant") dated October 4, 17, and 30, for records relating to KSU General Counsel Lisa Lang. For the reasons that follow, this Office finds that KSU violated the Act. 

First request 

On October 4, 2019, the Appellant requested a copy of Ms. Lang's personnel file. KSU received the request on October 8, 2019, and responded on October 11, 2019, that "records labeled 2019-050_0008 through 2019-050_0031" would not be provided because they consisted of a performance evaluation. Citing 

Cape Publications v. City of Louisville , 191 S.W.3d 10 (Ky. App. 2006), KSU stated that the public interest in Ms. Lang's performance was not so significant as to outweigh her privacy interest in her evaluation. On October 15, after receiving payment from the Appellant, KSU provided copies of the remaining records, indicating that "the records have been redacted to remove personally identifiable information in accordance with KRS 61.878(1)(a)." KSU did not specify the nature of the redacted information. 

KRS 61.878(1)(a) creates an exception to the Act for "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This exception typically requires a "comparative weighing of the antagonistic interests" between privacy and the public interest in disclosure. 

Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992). To rely on the exception provided by KRS 61.878(1)(a), KSU had to provide "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). 

Regarding the records that were redacted but disclosed, if the redactions consisted solely of "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," such as date of birth, Social Security number, driver's license number, and home address, they may have been justified. 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 89 (Ky. 2013); 17-ORD-101 n.2. KSU, however, did not indicate that its redactions for "personally identifiable information" were limited to such discrete categories. In failing to provide any description of the nature of the alleged personally identifiable information and explain how KRS 61.878(1)(a) applied to the redactions, KSU violated the Act. 17-ORD-120. 

As to Ms. Lang's performance evaluation, the courts have recognized the existence of a significant privacy interest in such records: 

The confidentiality of performance evaluations allows evaluators to speak more frankly about an employee than they might if the evaluations were known to be open to public disclosure. In addition, performance evaluations certainly can contain a great deal of personal information, and should not be subject to disclosure without the most pressing of public needs .

Cape Publications , 191 S.W.3d at 13 (emphasis added). Thus, where a local parks department employee was charged with "committing a criminal act made possible by his position at a public agency," which also led to the administrative suspension and eventual resignation of his supervisor, both his evaluation and his supervisor's were subject to disclosure to a newspaper under this high standard for public need. Id. at 14. 

The Appellant argues that it "has reason to believe that Ms. Lang was recently disciplined" by KSU, and that this suspicion meets the standard of "the most pressing of public needs" articulated in Cape Publications . Even assuming the Appellant's suspicions that Ms. Lang had been subjected to discipline were true, Appellant offers no authority for the proposition that Ms. Lang's alleged discipline is equivalent to the criminal behavior in public employment that created "the most pressing of public needs" for disclosure of a performance evaluation. Cape Publications , 191 S.W.3d at 13. 

Nor does Ms. Lang's position as KSU general counsel alter the balance of interests in this case. While the performance evaluation of an agency head is of such "significant public interest" that its disclosure is warranted notwithstanding the privacy interest, "the performance of an ordinary employee or even one of comparatively high rank is not of such significant public interest that it should be subject to disclosure." Id. (emphasis added). Therefore, in the absence of facts to "support a claim of superior public interest [to] override" the "long-recognized privacy interest" in performance evaluations, this Office affirms KSU's denial of access to Ms. Lang's evaluation. 07-ORD-125; 16-ORD-185. 

Second request 

On October 17, 2019, Appellant requested inspection or copies of "all disciplinary records or records relating to personnel actions against Lisa Lang," including "complaints/initiating documents, Lisa Lang's written response[,] investigative records (notes, interviews, factual findings), and action taken." Additionally, Appellant requested "personnel or payroll records documenting temporary or permanent cessation of Lisa Lang's salary and letter of resignation (if any exists)." 

On October 22, 2019, KSU responded that 68 pages of records had been located and that the Appellant could either receive copies or inspect the records "upon request and scheduling with the Office of Human Resources." In a follow-up e-mail discussion, Appellant asked, "Would it be possible for me to pick up copies of these records in person? If not, when could I schedule a time to inspect them?" The records custodian responded, "Yes, you may come by to inspect the records. Please schedule a time to ensure someone from [the Office of Human Resources] will be available." Appellant asked to come at 9:00 a.m. "tomorrow." The records custodian responded, "I have a scheduling conflict at 9 a.m. are you available at 10?" 

Under certain conditions, an agency's request that a person schedule an appointment to inspect records can subvert the intent of the Act. See 15-ORD-182 (finding violation where an agency continually cancelled appointments); 93-ORD-48 (finding violation where the agency limited the hours for inspection from 8:00 a.m. to 11:00 a.m. for all requesters despite the office's not closing until 4:30 p.m.). KRS 61.872(3)(a) provides that "[a] person may inspect ... public records [d]uring the regular office hours of the public agency." It does not prohibit an agency from coordinating with a requester for a mutually convenient time, in the immediate future and during business hours, for inspection. In this case, the appointment was not a restrictive requirement or a cause of delay, but merely a means of facilitating inspection. KSU's requesting that Appellant schedule an appointment, and accommodating inspection within twenty-four hours of asking Appellant to schedule the appointment, did not subvert the intent of the Act under these facts. 

However, after having made an appointment to inspect the records, the Appellant was denied inspection of Lisa Lang's payroll records. Although required to do so by KRS 61.880(1), KSU gave no basis for this denial. Accordingly, this Office finds that KSU's denial of Ms. Lang's payroll records violated the Act. 

Appellant was permitted to inspect a two-page grievance dated March 27, 2018, filed by a KSU employee, which contained references to Lisa Lang but was not a personnel action against Ms. Lang. KSU did not clarify whether the 66 pages of withheld records consisted entirely of Ms. Lang's payroll records, or whether they also included disciplinary records. 

KSU neither denied the existence of disciplinary records nor asserted a basis for denial of such records. Instead, KSU merely produced a record that was nonresponsive to the request. If there are no records responsive to a certain portion of a request, it is the agency's duty to state that fact "in clear and direct terms." 02-ORD-144. Otherwise, the agency fails to discharge its statutory duty to respond. 17-ORD-247. Having stated no basis for its disposition of the request for records of personnel actions against Ms. Lang, KSU violated the Act. 

Additionally, KSU refused to allow the Appellant to make copies of the records by photographing them with a cell phone. KSU cited no law in support of this refusal. 

"This office has long recognized that the right to obtain copies is correlative to the right to inspect records." 07-ORD-252 n.1. As to the use of the requester's personal imaging equipment, only county clerks have statutory authority to "establish procedures ... restricting the use of devices" to copy public records. KRS 64.019(1). In the absence of such express authority, a public agency subverts the intent of the Act when it prohibits the public from photographing its records with a personal device, unless the agency offers "proof that the condition of the records ... was so poor that [the use of the device] risked damage or alteration to the records." 11-ORD-166. 1Since KSU offered no such proof here, KSU subverted the intent of the Act, within the meaning of KRS 61.880(4), by forbidding the Appellant to photograph its records. 

Third request 

On October 30, 2019, Appellant requested a copy of all internal and external communications since August 1, 2019, "by and between KSU President M. Christopher Brown II, KSU Regents, any official/employee of those KSU units identified in the KSU Organizational Chart as 'High Level Administration,' [several named offices and divisions within KSU], and/or KSU faculty or staff, relating to ... Lisa Lang's job performance," including any investigative documents. The Appellant also again requested Ms. Lang's performance evaluation. 

On November 4, 2019, KSU responded that 23 pages of records had been located, and again required an appointment if the Appellant chose to inspect the records. After making an appointment, the Appellant was allowed to receive copies of Ms. Lang's 12-page "self assessment narrative of top goals and accomplishments" and a blank form titled "Managerial Performance Assessment." 

Although it had previously denied access to Ms. Lang's performance evaluation on the basis of KRS 61.878(1)(a), and provided a sufficient explanation of that denial in the first request, KSU failed to restate the reason for denying access to the performance evaluation in response to this new request. Each open records request is subject to KRS 61.880(1), and an agency cannot ignore its obligations under the Act because it previously responded to a similar request. KRS 61.880(1) requires a public agency's partial denial of inspection to state "the specific exception authorizing the withholding of the record." Therefore, although the evaluation was properly withheld under KRS 61.878(1)(a), KSU violated the Act by failing to issue a written denial citing this exception in its November 4 response. 16-ORD-211. 

Appeal and KSU's subsequent conduct 

Appellant initiated this appeal on November 15, 2019. On November 22, 2019, an attorney for KSU stated that KSU believed it had "fully responded to the requests," but asked for additional time "to further examine the records." On December 3, 2019, KSU indicated that after the filing of the appeal all senior administrators had been asked to respond to the request for records relating to Lisa Lang's job performance, and that "[t]he search resulted in a single document which is exempt under KRS 61.878(1)(a) and 61.878(1)(i)." KSU did not state what the document was, nor did it explain how the two cited subsections applied to the record. 

A public agency, upon receiving an open records request, has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted). Although KSU did not state what type of search it initially performed, that search was clearly insufficient to locate all responsive records. KSU thus violated the Act by failing to conduct an adequate search prior to responding to Appellant's third request. 19-ORD-025. 

On December 5, 2019, due to KSU's failure to identify the newly-discovered record, or to state explicitly whether it had withheld any disciplinary records responsive to Appellant's second request, this Office requested a confidential review of the withheld records pursuant to KRS 61.880(2)(c). The records were to have been provided to this Office by December 20, 2019. On January 22, 2020, KSU finally submitted for review a copy of a two-page grievance against Ms. Lang dated August 5, 2019. 

KRS 61.878(1)(i) applies to "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." KSU did not indicate whether the grievance is purported to be a preliminary draft, a note, or correspondence with a private individual. As a grievance submitted by a public employee on a specific date, the document appears to be none of the three. 

"[A]nalysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific." 00-ORD-168. Where an agency fails to explain how an exception under KRS 61.878(1) applies to the withheld record, it fails to meet its burden of proof under KRS 61.880(2)(c). 17-ORD-101 n.3. KSU's bare assertion that the grievance is subject to KRS 61.878(1)(i) is insufficient to meet that burden. 

Likewise, under KRS 61.878(1)(a), "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Ky. Bd. of Examiners of Psychologists , 826 S.W.2d at 328. By failing to explain the application of the asserted exemption, KSU has failed to provide the necessary "specific context." 

The public purpose of the Act is to ensure "meaningful public oversight, to enable Kentuckians to know 'what their government is up to.'" Kentucky New Era , 415 S.W.3d at 89. If a public agency identifies a personal privacy interest in a public record, that interest must be weighed against the public interest in disclosure. Ky. Bd. of Examiners , 826 S.W.2d at 327-28. "Where the agency fails to articulate a privacy interest, however, 'the balance is decisively in favor of disclosure.'" 19-ORD-227 (quoting 10-ORD-082). By merely citing KRS 61.878(1)(a) without articulating a significant privacy interest, KSU has not met its burden of proof. Therefore, this Office finds that KSU violated the Act by withholding the grievance. 

Conclusion 

KSU lawfully denied inspection of Ms. Lang's performance evaluation under KRS 61.878(1)(a). KSU's request that Appellant schedule an appointment, under the facts of this case, did not subvert the intent of the Act. However, KSU did violate the Act by its denial of access to Ms. Lang's payroll records and the 2019 grievance, and by its failure to specify the purpose for redactions, perform an adequate search, or respond to specific portions of requests. KSU subverted the intent of the Act, within the meaning of KRS 61.880(4), by prohibiting the use of a personal device to copy records. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Although 11-ORD-166 involved a county clerk, the rationale for that decision ceased to apply to county clerks with the 2012 enactment of KRS 64.019.



 

20-ORD-013

LLM Generated Data

Appellant: The State Journal

Agency: KSU

AG: Daniel Cameron

AAG: James M. Herrick

Summary

KSU violated the Act by failing to conduct an adequate search prior to responding to the requests, failing to explain the application of exemptions to withheld records, denying access to Ms. Lang's payroll records, failing to specify the purpose for redactions, failing to perform an adequate search, and failing to respond to specific portions of requests. KSU also subverted the intent of the Act by prohibiting the use of a personal device to copy records.

Cited Opinions

  • 17-ORD-101: V

    This decision finds that KSU violated the Act by failing to conduct an adequate search prior to responding to the appellant's request.

  • 17-ORD-120: V

    This decision finds that KSU violated the Act by failing to explain the application of the exemptions to the withheld records.

  • 07-ORD-125: F

    This decision affirms KSU's denial of access to Ms. Lang's performance evaluation based on significant privacy interests in such records.

  • 16-ORD-185: V

    This decision finds that KSU violated the Act by failing to issue a written denial citing the specific exception authorizing the withholding of the record.

  • 15-ORD-182: V

    This decision finds that an agency's request for appointment to inspect records can subvert the intent of the Act under certain conditions.

  • 93-ORD-48: V

    This decision finds that an agency limiting inspection hours for all requesters violates the Act.

  • 02-ORD-144: V

    This decision states that if there are no records responsive to a certain portion of a request, the agency must state that fact clearly.

  • 17-ORD-247: V

    This decision finds that an agency's failure to explain how an exemption applies to a withheld record violates the Act.

  • 07-ORD-252: V

    This decision recognizes the right to obtain copies is correlative to the right to inspect records.

  • 11-ORD-166: V

    This decision states that county clerks have statutory authority to establish procedures restricting the use of devices to copy public records.

  • 16-ORD-211: V

    This decision finds that an agency cannot ignore its obligations under the Act because it previously responded to a similar request.

  • 95-ORD-96: V

    This decision states that a public agency must make a good faith effort to conduct a search using methods that can reasonably be expected to produce the records requested.

  • 19-ORD-025: V

    This decision finds that an agency violated the Act by failing to conduct an adequate search prior to responding to a request.

  • 00-ORD-168: V

    This decision states that analysis of the propriety of a public agency's reliance on exemptions is largely fact-specific.

  • 19-ORD-227: V

    This decision finds that where an agency fails to articulate a privacy interest, the balance is decisively in favor of disclosure.

  • 10-ORD-082: V

    This decision states that where an agency fails to articulate a privacy interest, the balance is decisively in favor of disclosure.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSU violated the Act in its disposition of requests by The State Journal ("Appellant") dated October 4, 17, and 30, for records relating to KSU General Counsel Lisa Lang. For the reasons that follow, this Office finds that KSU violated the Act. 

First request 

On October 4, 2019, the Appellant requested a copy of Ms. Lang's personnel file. KSU received the request on October 8, 2019, and responded on October 11, 2019, that "records labeled 2019-050_0008 through 2019-050_0031" would not be provided because they consisted of a performance evaluation. Citing 

Cape Publications v. City of Louisville , 191 S.W.3d 10 (Ky. App. 2006), KSU stated that the public interest in Ms. Lang's performance was not so significant as to outweigh her privacy interest in her evaluation. On October 15, after receiving payment from the Appellant, KSU provided copies of the remaining records, indicating that "the records have been redacted to remove personally identifiable information in accordance with KRS 61.878(1)(a)." KSU did not specify the nature of the redacted information. 

KRS 61.878(1)(a) creates an exception to the Act for "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This exception typically requires a "comparative weighing of the antagonistic interests" between privacy and the public interest in disclosure. 

Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992). To rely on the exception provided by KRS 61.878(1)(a), KSU had to provide "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). 

Regarding the records that were redacted but disclosed, if the redactions consisted solely of "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," such as date of birth, Social Security number, driver's license number, and home address, they may have been justified. 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 89 (Ky. 2013); 17-ORD-101 n.2. KSU, however, did not indicate that its redactions for "personally identifiable information" were limited to such discrete categories. In failing to provide any description of the nature of the alleged personally identifiable information and explain how KRS 61.878(1)(a) applied to the redactions, KSU violated the Act. 17-ORD-120. 

As to Ms. Lang's performance evaluation, the courts have recognized the existence of a significant privacy interest in such records: 

The confidentiality of performance evaluations allows evaluators to speak more frankly about an employee than they might if the evaluations were known to be open to public disclosure. In addition, performance evaluations certainly can contain a great deal of personal information, and should not be subject to disclosure without the most pressing of public needs .

 

Cape Publications , 191 S.W.3d at 13 (emphasis added). Thus, where a local parks department employee was charged with "committing a criminal act made possible by his position at a public agency," which also led to the administrative suspension and eventual resignation of his supervisor, both his evaluation and his supervisor's were subject to disclosure to a newspaper under this high standard for public need. Id. at 14. 

The Appellant argues that it "has reason to believe that Ms. Lang was recently disciplined" by KSU, and that this suspicion meets the standard of "the most pressing of public needs" articulated in Cape Publications . Even assuming the Appellant's suspicions that Ms. Lang had been subjected to discipline were true, Appellant offers no authority for the proposition that Ms. Lang's alleged discipline is equivalent to the criminal behavior in public employment that created "the most pressing of public needs" for disclosure of a performance evaluation. Cape Publications , 191 S.W.3d at 13. 

Nor does Ms. Lang's position as KSU general counsel alter the balance of interests in this case. While the performance evaluation of an agency head is of such "significant public interest" that its disclosure is warranted notwithstanding the privacy interest, "the performance of an ordinary employee or even one of comparatively high rank is not of such significant public interest that it should be subject to disclosure." Id. (emphasis added). Therefore, in the absence of facts to "support a claim of superior public interest [to] override" the "long-recognized privacy interest" in performance evaluations, this Office affirms KSU's denial of access to Ms. Lang's evaluation. 07-ORD-125; 16-ORD-185. 

Second request 

On October 17, 2019, Appellant requested inspection or copies of "all disciplinary records or records relating to personnel actions against Lisa Lang," including "complaints/initiating documents, Lisa Lang's written response[,] investigative records (notes, interviews, factual findings), and action taken." Additionally, Appellant requested "personnel or payroll records documenting temporary or permanent cessation of Lisa Lang's salary and letter of resignation (if any exists)." 

On October 22, 2019, KSU responded that 68 pages of records had been located and that the Appellant could either receive copies or inspect the records "upon request and scheduling with the Office of Human Resources." In a follow-up e-mail discussion, Appellant asked, "Would it be possible for me to pick up copies of these records in person? If not, when could I schedule a time to inspect them?" The records custodian responded, "Yes, you may come by to inspect the records. Please schedule a time to ensure someone from [the Office of Human Resources] will be available." Appellant asked to come at 9:00 a.m. "tomorrow." The records custodian responded, "I have a scheduling conflict at 9 a.m. are you available at 10?" 

Under certain conditions, an agency's request that a person schedule an appointment to inspect records can subvert the intent of the Act. See 15-ORD-182 (finding violation where an agency continually cancelled appointments); 93-ORD-48 (finding violation where the agency limited the hours for inspection from 8:00 a.m. to 11:00 a.m. for all requesters despite the office's not closing until 4:30 p.m.). KRS 61.872(3)(a) provides that "[a] person may inspect ... public records [d]uring the regular office hours of the public agency." It does not prohibit an agency from coordinating with a requester for a mutually convenient time, in the immediate future and during business hours, for inspection. In this case, the appointment was not a restrictive requirement or a cause of delay, but merely a means of facilitating inspection. KSU's requesting that Appellant schedule an appointment, and accommodating inspection within twenty-four hours of asking Appellant to schedule the appointment, did not subvert the intent of the Act under these facts. 

However, after having made an appointment to inspect the records, the Appellant was denied inspection of Lisa Lang's payroll records. Although required to do so by KRS 61.880(1), KSU gave no basis for this denial. Accordingly, this Office finds that KSU's denial of Ms. Lang's payroll records violated the Act. 

Appellant was permitted to inspect a two-page grievance dated March 27, 2018, filed by a KSU employee, which contained references to Lisa Lang but was not a personnel action against Ms. Lang. KSU did not clarify whether the 66 pages of withheld records consisted entirely of Ms. Lang's payroll records, or whether they also included disciplinary records. 

KSU neither denied the existence of disciplinary records nor asserted a basis for denial of such records. Instead, KSU merely produced a record that was nonresponsive to the request. If there are no records responsive to a certain portion of a request, it is the agency's duty to state that fact "in clear and direct terms." 02-ORD-144. Otherwise, the agency fails to discharge its statutory duty to respond. 17-ORD-247. Having stated no basis for its disposition of the request for records of personnel actions against Ms. Lang, KSU violated the Act. 

Additionally, KSU refused to allow the Appellant to make copies of the records by photographing them with a cell phone. KSU cited no law in support of this refusal. 

"This office has long recognized that the right to obtain copies is correlative to the right to inspect records." 07-ORD-252 n.1. As to the use of the requester's personal imaging equipment, only county clerks have statutory authority to "establish procedures ... restricting the use of devices" to copy public records. KRS 64.019(1). In the absence of such express authority, a public agency subverts the intent of the Act when it prohibits the public from photographing its records with a personal device, unless the agency offers "proof that the condition of the records ... was so poor that [the use of the device] risked damage or alteration to the records." 11-ORD-166. 1Since KSU offered no such proof here, KSU subverted the intent of the Act, within the meaning of KRS 61.880(4), by forbidding the Appellant to photograph its records. 

Third request 

On October 30, 2019, Appellant requested a copy of all internal and external communications since August 1, 2019, "by and between KSU President M. Christopher Brown II, KSU Regents, any official/employee of those KSU units identified in the KSU Organizational Chart as 'High Level Administration,' [several named offices and divisions within KSU], and/or KSU faculty or staff, relating to ... Lisa Lang's job performance," including any investigative documents. The Appellant also again requested Ms. Lang's performance evaluation. 

On November 4, 2019, KSU responded that 23 pages of records had been located, and again required an appointment if the Appellant chose to inspect the records. After making an appointment, the Appellant was allowed to receive copies of Ms. Lang's 12-page "self assessment narrative of top goals and accomplishments" and a blank form titled "Managerial Performance Assessment." 

Although it had previously denied access to Ms. Lang's performance evaluation on the basis of KRS 61.878(1)(a), and provided a sufficient explanation of that denial in the first request, KSU failed to restate the reason for denying access to the performance evaluation in response to this new request. Each open records request is subject to KRS 61.880(1), and an agency cannot ignore its obligations under the Act because it previously responded to a similar request. KRS 61.880(1) requires a public agency's partial denial of inspection to state "the specific exception authorizing the withholding of the record." Therefore, although the evaluation was properly withheld under KRS 61.878(1)(a), KSU violated the Act by failing to issue a written denial citing this exception in its November 4 response. 16-ORD-211. 

Appeal and KSU's subsequent conduct 

Appellant initiated this appeal on November 15, 2019. On November 22, 2019, an attorney for KSU stated that KSU believed it had "fully responded to the requests," but asked for additional time "to further examine the records." On December 3, 2019, KSU indicated that after the filing of the appeal all senior administrators had been asked to respond to the request for records relating to Lisa Lang's job performance, and that "[t]he search resulted in a single document which is exempt under KRS 61.878(1)(a) and 61.878(1)(i)." KSU did not state what the document was, nor did it explain how the two cited subsections applied to the record. 

A public agency, upon receiving an open records request, has the duty "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested[.] Thus, the agency must expend reasonable effort to identify and locate the requested records." 95-ORD-96 (internal quotation marks omitted). Although KSU did not state what type of search it initially performed, that search was clearly insufficient to locate all responsive records. KSU thus violated the Act by failing to conduct an adequate search prior to responding to Appellant's third request. 19-ORD-025. 

On December 5, 2019, due to KSU's failure to identify the newly-discovered record, or to state explicitly whether it had withheld any disciplinary records responsive to Appellant's second request, this Office requested a confidential review of the withheld records pursuant to KRS 61.880(2)(c). The records were to have been provided to this Office by December 20, 2019. On January 22, 2020, KSU finally submitted for review a copy of a two-page grievance against Ms. Lang dated August 5, 2019. 

KRS 61.878(1)(i) applies to "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." KSU did not indicate whether the grievance is purported to be a preliminary draft, a note, or correspondence with a private individual. As a grievance submitted by a public employee on a specific date, the document appears to be none of the three. 

"[A]nalysis of the propriety of a public agency's reliance on KRS 61.878(1)(i) is largely fact specific." 00-ORD-168. Where an agency fails to explain how an exception under KRS 61.878(1) applies to the withheld record, it fails to meet its burden of proof under KRS 61.880(2)(c). 17-ORD-101 n.3. KSU's bare assertion that the grievance is subject to KRS 61.878(1)(i) is insufficient to meet that burden. 

Likewise, under KRS 61.878(1)(a), "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Ky. Bd. of Examiners of Psychologists , 826 S.W.2d at 328. By failing to explain the application of the asserted exemption, KSU has failed to provide the necessary "specific context." 

The public purpose of the Act is to ensure "meaningful public oversight, to enable Kentuckians to know 'what their government is up to.'" Kentucky New Era , 415 S.W.3d at 89. If a public agency identifies a personal privacy interest in a public record, that interest must be weighed against the public interest in disclosure. Ky. Bd. of Examiners , 826 S.W.2d at 327-28. "Where the agency fails to articulate a privacy interest, however, 'the balance is decisively in favor of disclosure.'" 19-ORD-227 (quoting 10-ORD-082). By merely citing KRS 61.878(1)(a) without articulating a significant privacy interest, KSU has not met its burden of proof. Therefore, this Office finds that KSU violated the Act by withholding the grievance. 

Conclusion 

KSU lawfully denied inspection of Ms. Lang's performance evaluation under KRS 61.878(1)(a). KSU's request that Appellant schedule an appointment, under the facts of this case, did not subvert the intent of the Act. However, KSU did violate the Act by its denial of access to Ms. Lang's payroll records and the 2019 grievance, and by its failure to specify the purpose for redactions, perform an adequate search, or respond to specific portions of requests. KSU subverted the intent of the Act, within the meaning of KRS 61.880(4), by prohibiting the use of a personal device to copy records. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Although 11-ORD-166 involved a county clerk, the rationale for that decision ceased to apply to county clerks with the 2012 enactment of KRS 64.019.



 

20-ORD-015

LLM Generated Data

Appellant: Eric Anthony

Agency: GRCC

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

GRCC violated the Open Records Act by failing to provide a brief explanation as to how the cited statutes applied to the requested records in its final disposition of the request. However, GRCC's denial of certain records based on KRS 197.025(1) to prevent security risks was found to be justified. The Attorney General found GRCC's argument persuasive in redacting portions of the IA Report and withholding the audio recording of former officer Geary's statement to avoid security risks. The issue regarding the redacted IA Report and the audio recording of former officer Geary's statement remains unresolved and not moot.

Cited Opinions

  • 96-ORD-179: F

    This decision recognizes that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny access to records if disclosure is deemed to constitute a threat to security.

  • 03-ORD-190: F

    This decision affirms the denial of a request for incident reports based on KRS 197.025(1) to prevent retaliation against other inmates or security staff.

  • 19-ORD-110: F

    This decision upholds the denial of a request based on KRS 197.025(1) to prevent a security threat.

  • 96-ORD-204: F

    This decision affirms the denial of a request for incident reports based on KRS 197.025(1) to prevent a security risk.

  • 07-ORD-039: F

    This decision supports the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent security threats.

  • 16-ORD-071: F

    This decision upholds the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent security risks.

  • 17-ORD-097: F

    This decision affirms the denial of requests for extraordinary occurrence reports based on KRS 197.025(1) to prevent security threats.

  • 10-ORD-056: F

    This decision supports the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent security risks.

  • 10-ORD-063: F

    This decision upholds the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent security threats.

  • 12-ORD-123: F

    This decision affirms the denial of requests for personnel statements contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent security threats.

  • 08-ORD-251: F

    This decision supports the denial of requests for information regarding other individuals contained in extraordinary occurrence reports based on KRS 197.025(1) to prevent security risks.

  • 11-ORD-177: F

    This decision upholds the denial of requests for conflict sheets based on KRS 197.025(1) to prevent security threats.

  • 92-ORD-131: F

    This decision affirms the denial of requests for psychological evaluations of inmates based on KRS 197.025(1) to prevent security risks.

  • 00-ORD-125: F

    This decision recognizes that KRS 197.025(1) vests the commissioner or his designee with broad discretion to deny access to records if disclosure is deemed to constitute a threat to security.

  • 09-ORD-007: F

    This decision states that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot.

  • 18-ORD-211: F

    This decision affirms that issues regarding redacted reports and recordings provided in their entirety are moot if the complaining party receives the requested documents after the complaint is made.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether GRCC violated the Act in partially denying Eric Anthony's ("Appellant") November 7, 2019, request for a copy of the audio recording of the September 10, 2019, adjustment hearings pertaining to Disciplinary Report ("DR") Numbers GRCC-2019-00946 and GRCC-2019-02955, a copy of certain photographs relating to DR No. GRCC-2019-00946, a copy of the Internal Affairs ("IA") Report [of] Investigation for DR No. GRCC-2019-02955 prepared by Lieutenant Joseph Foe, and one copy of "the written or audio[-]recorded statements produced by former officer Brandon Geary, pertaining to [DR No.] GRCC-2019-02955." By letter directed to Appellant on December 9, 2019, GRCC advised that a copy of the photograph relating to DR No. GRCC-2019-00946 was enclosed. However, GRCC denied the remainder of the request, including "audio recordings, [IA] reports, and anything pertaining to former officer Brandon Geary's case," because disclosure "would constitute a threat to the security of inmates, the institution, institutional staff, or others, and cannot be provided due to KRS 197.025(1) and KRS 61.878(1)(l)." This appeal followed. 

In response to this appeal, GRCC reconsidered its original position and agreed to provide Appellant with a copy of the audio recordings pertaining to DR No. GRCC-2019-02955 and DR No. GRCC-2019-00946 in addition to a copy of the requested IA Report "with redacted [sic] for information that does not make specific reference to you and disclosure of which would pose a security risk to the institution." However, GRCC continued to maintain that former officer Geary's recorded statement "cannot be redacted, and disclosure would pose a security risk to the institution." 1

In relevant part, KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. See 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). GRCC violated KRS 61.880(1) by failing to provide a brief explanation as to how KRS 197.025(1) and (2) applied to the requested records in its December 9, 2019 final disposition of the request. GRCC merely cited the statutes. Although GRCC ultimately provided sufficient explanation to justify its denial as to records that remained in dispute to this Office following additional questioning, the fact such questioning was necessary demonstrates the deficient explanation afforded Appellant prior to appeal. 

In its first response to this Office, GRCC enclosed a copy of an e-mail from Lt. Foe confirming that "names and other information" were redacted from the IA Report "for the safety of other inmates." A copy of the heavily redacted IA Report was also attached to GRCC's response. GRCC further argued that disclosure of the audio recording of former officer Geary's statement, which cannot be redacted, "would pose a great risk to the other inmate involved[.]" 

Pursuant to KRS 61.880(1)(c) and 40 KAR 1:030 § 3, this Office subsequently asked GRCC for additional information. Specifically, this Office requested that GRCC identify which portions of the "Report of Investigation" it withheld pursuant to KRS 197.025(1), and specify how disclosure would pose a security risk to GRCC in as much detail as possible without defeating the purpose for which GRCC claimed that exemption. In addition, this Office asked GRCC to specify which portions of the IA Report it withheld pursuant to KRS 197.025(2). Finally, this Office asked GRCC to provide a blank copy of the Report for context in which to review the redacted version it released to Appellant. GRCC promptly complied. By e-mail dated January 21, 2020, GRCC provided a supplemental response from Lt. Foe. He stated: 

The paragraphs of the report that were redacted contained information from inmates that were interviewed and gave information on various details of how the Officer was getting the drugs into the prison, they also contain information about the investigation leading to the arrest of the Officer as well as the name[s] of the Inmates that gave information on [Appellant]. The redacted portions of the report are not in relation to [Appellant's] involvement and would pose a grave risk to the other Inmates that gave information that had nothing to do with [Appellant] as well as risking other confidential parts of the investigation about the former Officer.

Based on this additional explanation, and our inspection of the blank Report provided, this Office finds GRCC's argument persuasive. 

KRS 197.025(1) provides: 

KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3; 03-ORD-190; 19-ORD-110. Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 03-ORD-190 (affirming denial of request for incident reports because allowing inmates to view such reports would provide "'a means by which inmates could get information that may become the basis for retaliation against other inmates or security staff of the institution'"). Since its enactment in 1990, this Office has upheld denials by correctional facilities of inmate requests and requests from the public for a variety of records based on KRS 197.025(1), including, but not limited to extraordinary occurrence reports ("EORs")(07-ORD-039, 16-ORD-071, 17-ORD-097); personnel statements contained in EORs (10-ORD-056, 10-ORD-063, 12-ORD-123); information regarding other individuals contained in EORs (08-ORD-251); conflict sheets (OAG 91-136, 11-ORD-177); and psychological evaluations of inmates (92-ORD-1314). 

Here, GRCC determined, in a proper exercise of its discretion, that disclosing portions of the requested IA Report would pose a security threat to GRCC staff, other inmates, and the institution; likewise, GRCC determined that disclosing the audio recording of former officer Geary's statement would also pose a great security risk. The Attorney General has consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination. 03-ORD-190, p. 5; 96-ORD-179; 00-ORD-125; 11-ORD-177; 17-ORD-097. As before, this Office declines to substitute its judgment for that of the correctional facility or DOC. In summary, GRCC properly relied upon KRS 197.025(1) in redacting significant portions of the requested IA Report and in withholding the audio recording of former officer Geary's statement. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 GRCC asserted this appeal is moot as to recordings of the adjustment hearings and the redacted IA Report it agreed to provide upon receipt of payment. However, 40 KAR 1:030, § 6, provides, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, issues regarding the photograph and the audio recordings that GRCC provided in their entirety have been rendered moot per 40 KAR 1:030 § 6; issues regarding the redacted IA Report and the audio recording of former officer Geary's statement have not been. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot." 09-ORD-007, p. 5; 18-ORD-211.



 

20-ORD-016

LLM Generated Data

Appellant: Scott Horn

Agency: LPL

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The agency, LPL, violated the Act by failing to explain how the exemptions it relied upon applied to the relevant records. LPL's response was deficient as it did not provide a specific explanation of how the exemptions applied to the records withheld. The agency also failed to categorize responsive documents and explain how the exemptions applied to the requests, violating the Act. The decision allows either party to appeal by initiating action in the appropriate circuit court. 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.

Cited Opinions

  • 19-ORD-045: N

    The decision finds that the agency's response violated the Act by failing to permit the inspection of non-exempt responsive records or explain the basis for exceptions upon which it relied to deny access to records it withheld.

  • 19-ORD-147: N

    The decision finds that the agency violated the Act by invoking the exemption in KRS 61.878(1)(a) without explaining how this exemption applied to the category of documents withheld.

  • 16-ORD-057: N

    The decision establishes the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records.

  • 00-ORD-76: N

    This decision is referenced in the footnotes regarding whether additional correspondence amounts to 'requests for information' to which an agency is not required to respond.

  • 04-ORD-080: N

    This decision is referenced in the footnotes regarding whether additional correspondence amounts to 'requests for information' to which an agency is not required to respond.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether LPL violated the Act in the disposition of Scott Horn's ("the Appellant") December 1, 2019, request for the following records: 

1. Records of communications between LPL management and diversity consultant Demetria Miles-McDonald, including emails, email attachments, text messages to/from LPL provided cell phones, and meeting notes[;] 

2. Records reflecting plans, decisions, or roadmaps that resulted from communications with the diversity consultant[;] 

3. Results of LPL surveys of LPL staff conducted or commissioned by LPL management during 2019[;] 

4. Records reflecting LPL management's upcoming plans to transfer/rotate branch managers, including any that show their future or planned assignments, and any communications to branch managers informing them of these decisions or plans. 1

Mr. Horn clarified that all references to "LPL management" encompassed the executive director, the director of access and initiatives, the director of community engagement, the finance officer, the branch managers, and "all additional staff located in the administrative suite of the central library." 

LPL partially denied Appellant's request. Quoting KRS 61.878(1)(a),(i), and (j), LPL generally maintained that, "[s]ince certain requests made in Sections 1-4 represent personal information, preliminary drafts, notes, recommendations, or memoranda, your request to inspect records of this nature is denied. No final agency action has been taken, therefore, this information will be excluded from the records made available to you." Based upon the following, this Office finds the agency's response violated the Act. 

As a threshold matter, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) [business] days . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." LPL's December 4, 2019, response to Appellant's December 1, 2019, request was timely under KRS 61.880(1), but otherwise deficient because LPL failed to either permit Appellant to inspect non-exempt responsive records or explain the basis for exceptions upon which it relied to deny access to records it withheld. Pursuant to KRS 61.880(1), a public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld ." (emphasis added.) The language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," such as that provided here, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. 

KRS 61.880(2)(c) states, "[t]he burden of proof in sustaining the action shall rest with the agency[.]" The Kentucky Supreme Court has recognized that a public agency "bears the burden to rebut the strong presumption in favor of disclosure." 

Commonwealth v. Chestnut , 250 S.W.3d 655, 660 (Ky. 2008). A "bare assertion" simply does not satisfy that burden. 19-ORD-045, p. 9. Here, LPL cited the statutory exceptions it relied upon per KRS 61.880(1), but failed to provide any explanation of how the cited exceptions applied to records it withheld. 

First , LPL violated the Act by invoking the exemption in KRS 61.878(1)(a) without explaining how this exemption applied to the category of documents withheld. LPL's unsupported statement that disclosure of unspecified records or information would constitute a clearly unwarranted invasion of personal privacy, without any specific facts or context, "was merely an insufficient paraphrase of the statutory language." 19-ORD-147, p. 1. A public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). 

"With no detailed explanation of the privacy interest at issue, [this Office] must find that [the agency] has not met its burden of proof under KRS 61.880(2)(c) to sustain its invocation of KRS 61.878(1)(a)[.]" 16-ORD-057, p. 4. Existing legal authority permits LPL to withhold truly personal information, such as home addresses, telephone numbers, Social Security Numbers, or medical information from existing responsive documents. See, e.g., 

Zink v. Commonwealth of Kentucky , 902 S.W.2d 825, 828 (Ky. App. 1994). But LPL may not withhold records in their entirety simply because they may contain such personal information. KRS 61.878(4). 

In 

Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records (or portions thereof). Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. Although there may be instances where a categorical redaction of information is reasonable, 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013), the determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit. Ky. Bd. of Examiners of Psychologists , 826 S.W.2d at 327-328. This has been called an "intrinsically situational" determination that can only be made in a "specific context." Id. 

Significantly, the Kentucky Supreme Court has rejected the practice of " blanket denials of ORA requests, i.e. , the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt . . . ." Kentucky New Era, Inc . 415 S.W.3d at 88 (original emphasis). In that case, the Court determined that although the City employed a "categorical" redaction policy, the City had "complied scrupulously with KRS 61.878(4) by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information." Id. 

Unlike the City in Kentucky New Era , in responding to Appellant's request under the Act, and on appeal, LPL merely claimed that "certain correspondence contained personal information about employees." 2LPL did not explain how the information was personal in any manner sufficient to weigh the interests between privacy and public access. Nor did it identify any discrete category of information that was inherently personal. LPL also failed to explain how the documents contained such extensive personal information to warrant withholding the records in their entirety. For these reasons, LPL violated the Act. 

Second , LPL violated the Act by failing to identify the documents withheld, categorize the documents based on whether KRS 61.878(1)(i) or (j) applied, and explain how those exceptions applied to the category of documents withheld. These exemptions permit agencies to withhold records that include preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, and preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. But under University of Kentucky v. Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader , "preliminary records which form the basis for the agency's final action are subject to disclosure." 579 S.W.3d 858, 863 (Ky. App. 2018). 

In response to Appellant's four requests, LPL maintained that "the [Decide] Diversity consultant's work is not complete. The work continues and is in phase two. No formal presentation has been reported to the Board and no final action has been taken by the [LPL]." LPL's response is not sufficient. Both initially and in subsequent responses, LPL failed to identify or make a good faith estimate of how many responsive documents it possessed. It further failed to identify which category of records it withheld on the basis of KRS 61.878(1)(i) or (j), and which categories of records it withheld on the basis of KRS 61.878(1)(a). LPL's response amounts to a blanket denial. Furthermore, the record on appeal is devoid of adequate information to determine whether some or all of the records fall within the parameters of each exemption claimed. 

Instead, the record on appeal demonstrates that on December 9, 2019, LPL transferred the Village Branch manager from her position and sent an internal bulletin to staff announcing that personnel change, as well as other management changes. The bulletin further stated, "[b]ased on the feedback we have received from the staff and Community served by the Village Branch, we recognize the need for a Spanish-speaking Manager at that location." The record, therefore, suggests that LPL took final action. To the extent any responsive communications, recommendations, or memoranda between Decide Diversity and LPL contributed to this action, those records are no longer preliminary and must be disclosed. In the absence of sufficient information to determine whether some or all of the withheld material forfeited its preliminary character, this Office must conclude LPL failed to satisfy its burden of justifying withholding such records under KRS 61.878(1)(i) or (j). 

In conclusion, LPL's initial response to the first itemized request violated the Act because LPL failed to explain how the exemptions it relied upon applied to the relevant records. Regarding itemized requests two, three, and four, LPL also argued on appeal that there were no responsive documents to these requests that were not provided. However, LPL's initial response denying the request applied all of its claimed exceptions to all of the itemized requests. Like LPL's response to itemized request one, the failure to categorize responsive documents and explain how the exemptions applied to these itemized requests violated the Act. It is difficult to square LPL's representation that on the one hand documents exist that are preliminary in nature, yet on the other hand, there are no additional documents in its possession. To the extent any additional documents exist that are responsive to itemized requests two, three, and four, LPL has failed to meet its burden to demonstrate that the claimed exemptions apply to those additional documents. 3

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant also requested additional records not discussed herein, which LPL provided.

2 After receiving LPL's deficient response, Appellant sent further correspondence asking LPL a series of questions designed to obtain more information about why LPL was denying the request. The parties have argued on appeal whether this additional correspondence amounts to "requests for information" to which an agency is not required to respond. See 00-ORD-76; 04-ORD-080. However, this Office does not consider Appellant's additional correspondence to be "requests for information." Rather, it is apparent that Appellant's subsequent correspondence was an attempt to make LPL remedy its deficient response and explain how the claimed exemptions applied to the requested documents.

3 Appellant requested that this Office review the remaining documents under KRS 61.880(2)(c). However, because LPL failed to meet its burden on the face of its initial response, this Office has sufficient information to find that LPL violated the Act.



 

20-OMD-018

LLM Generated Data

Appellant: Tanyqua Oliver

Agency: Fayette Circuit Judge Ernesto Scorsone

AG: Daniel Cameron

AAG: James M. Herrick

Summary

Fayette Circuit Judge Ernesto Scorsone was found not to be subject to the Open Meetings Act, as circuit judges are not considered public agencies under the Act. The decision emphasized the constitutional separation of powers and the inherent authority of courts to regulate court proceedings. Therefore, the Office lacks jurisdiction over the appeal. The decision does not find a violation of the law, and it does not subvert the law.

Cited Opinions

  • 13-OMD-166: F

    This decision states that the Open Meetings Act does not apply to circuit courts, as circuit judges are not considered public agencies under the Act.

  • OAG 97-9: O

    Cited to support the inherent power of courts to regulate the admission of the public to court proceedings and to preserve decorum and ensure the orderly administration of justice.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether Fayette Circuit Judge Ernesto Scorsone ("Judge Scorsone") violated the Open Meetings Act ("the Act") when, during a hearing on January 10, 2020, he ordered those present not to record or broadcast the proceedings with their cell phones. For the reasons that follow, this Office finds that Judge Scorsone is not subject to the Act. 

On January 10, 2020, Tanyqua Oliver ("Appellant") submitted a complaint to the Fayette Circuit Clerk, stating the alleged violation and proposing remedies, pursuant to KRS 61.846(1). Having received no response by January 16, 2020, Appellant initiated this appeal. On January 27, 2020, the Administrative Office of the Courts responded to the appeal on behalf of Judge Scorsone. 

A threshold issue is whether the Act applies to the proceedings of circuit courts. KRS 61.805(2) defines "public agency" as: 

(a) Every state or local government board, commission, and authority; 

(b) Every state or local legislative board, commission, and committee; 

(c) Every county and city governing body, council, school board, special district board, and municipal corporation; 

(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act; 

(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government; 

(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency," a state or local officer, or any combination thereof; 

(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and 

(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection[.]

 

None of these subsections explicitly applies to courts. Kentucky's circuit courts are created by Section 112 of the Kentucky Constitution, not by an executive order or legislative act. 

Even assuming that circuit judges were "public agencies" under the Act, KRS 61.810(1) governs only "meetings of a quorum of the members of any public agency." A circuit judge is an individual elected official, not a quorum of a body of members assembled for a meeting. Where there is no meeting under the Act, its provisions do not apply. 13-OMD-166. 

Furthermore, to apply the Act to the courts would impinge upon the constitutional separation of powers under Sections 27 and 28 of the Kentucky Constitution. "[T]he separation of powers doctrine is fundamental to Kentucky's tripartite system of government and must be 'strictly construed.'" 

Legislative Research Commission ex rel. Prather v. Brown , 664 S.W.2d 907, 911 (Ky. 1984) (quoting 

Arnett v. Meredith , 275 Ky. 223, 121 S.W.2d 36, 38 (1938)). 

"Courts have inherent power to act to preserve decorum and ensure the orderly administration of justice in the conduct of judicial proceedings.... This includes the authority to regulate the admission of the public to court proceedings." OAG 97-9 (citing 

Smothers v. Lewis , 672 S.W.2d 62 (Ky. 1984); 

Jackson v. Commonwealth , 38 S.W. 422 (Ky. 1896)). 

The Supreme Court of Kentucky has observed "that our Constitution makes it the highest court of the state and gives it the authority to 'exercise control of the Court of Justice.'" Ex parte Farley , 570 S.W.2d 617, 622 (Ky. 1978) (quoting KY. CONST. § 110(2)(a)). It is instructive that the Court in Farley declared both substantive and procedural provisions of the Open Records Act to be "interferences that we regard as inconsistent with the orderly conduct of our own business," and thus unacceptable "as a matter of comity." 570 S.W.2d at 625. 

In the view of this Office, the open meetings provisions of the Act are no less intrusive than the Open Records Act into "the sphere of authority that is constitutionally vested in the courts." Id. Thus, under both the constitutional separation of powers and the Act itself, Judge Scorsone is not subject to the requirements of the Act. Accordingly, this Office lacks jurisdiction over this appeal. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.



 

20-ORD-019

LLM Generated Data

Appellant: WPSD Local 6 News

Agency: City

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The City was found to have violated the Act by improperly redacting the Study in reliance on KRS 61.878(1)(c)1. The City failed to establish that the information was confidentially disclosed to the agency, generally recognized as confidential or proprietary, and would permit competitors an unfair commercial advantage. The City's redactions were made in violation of the Act.

Cited Opinions

  • 97-ORD-87: O

    Cited to establish that a public agency cannot withhold public records simply because they may be obtained from another source.

  • 19-ORD-146: O

    Analogous case where a water rate study commissioned by a city was found not to be a record disclosed to the city, but the city's own record.

  • 19-ORD-133: O

    Case discussing the efforts made by parties to ensure the confidentiality of shared information.

  • 17-ORD-002: O

    Case involving the method for determining a contract price and business risks assumed.

  • 09-ORD-203: O

    Selective disclosure is only prohibited amongst open records requesters.

  • 01-ORD-143: O

    Information on private financial affairs found to be generally recognized as confidential.

  • 17-ORD-198: O

    Case involving trade secrets, investment strategies, economic status, or business structures.

  • 16-ORD-273: O

    Case discussing costing and pricing strategy.

  • 07-ORD-166: O

    Case involving corporate assets of a non-financial nature that have required the expenditure of time and money to develop.

  • 92-ORD-113: O

    Case discussing the inner workings of a private entity.

  • 10-ORD-001: O

    Case discussing corporate assets that concern the inner workings of a private entity.

  • 12-ORD-076: O

    Case discussing information on asset values, notes payable, rental amounts, and related party transactions.

  • 09-ORD-031: O

    Case discussing the economic status of entities without hurdles associated with acquiring such information.

  • 08-ORD-083: O

    Case discussing the ability to ascertain the economic status of entities without hurdles associated with acquiring such information.

  • OAG 89-44: O

    Case discussing corporate assets that concern the inner workings of the private entity.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the City violated the Act in partially denying an October 22, 2019, request by WPSD Local 6 News ("Appellant") for a copy of a January 2019 "Paducah TIF District Hotel Market Study" ("the Study") prepared for the City by ConsultEcon, Inc. ("ConsultEcon"). For the reasons stated below, this Office finds that the City improperly redacted the Study in reliance on KRS 61.878(1)(c)1. 

The City responded to Appellant's request by providing a redacted copy of the Study with the following explanation: 

Portions have been redacted in accordance with KRS 61.878(c)(1) [ sic ] which refers to records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records. We have redacted the tabular data that is proprietary to STR, Inc.

 

On October 31, 2019, after Appellant requested further explanation for the redactions, the City generally reiterated its original response. However, it did add that the City conducted its redactions after consultation with ConsultEcon. The City also referred to the following language from ConsultEcon at page I-2 of the Study: 

Possession of this report does not carry with it the right of publication. This report incorporates tabular data that is proprietary to STR, Inc. [T]he data is not for public distribution. This report will be presented to third parties in its entirety and no abstracting of the report will be made without first obtaining permission of ConsultEcon, Inc., which consent will not be unreasonably withheld. 

.... Neither all nor any part of the contents of this study shall be disseminated to the public through advertising media, news media or any other public means of communication without the prior consent of ConsultEcon, Inc.

 

Appellant initiated this appeal on November 7, 2019. 

The City argues that this appeal is moot because the Appellant obtained an unredacted copy of the Study from another source. These conditions, however, do not render an appeal moot. See 97-ORD-87 ("a public agency cannot withhold public records from a requester simply because the records may be obtained from another source"). 

Alternatively, the City relies upon KRS 61.878(1)(c)1., which states in relevant part, "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records." Under KRS 61.880(2)(c), a public agency bears the burden of proof in sustaining its denial of access to public records. Exceptions to the Act are to be "strictly construed." KRS 61.871. Thus, to support redacting records under KRS 61.878(1)(c)1., a public agency must establish that the material in question (1) has been confidentially disclosed to the agency, (2) is generally recognized as confidential or proprietary, and (3) would permit competitors of the disclosing entity an unfair commercial advantage if disclosed. 

"Records confidentially disclosed to an agency" 

The material for which the City claims confidential status is the "tabular data" obtained by ConsultEcon from a third-party research firm, STR Global, Inc. ("STR"), concerning hotel occupancy rates in Paducah over a period of years. According to the City's response to the appeal, ConsultEcon is a "subscribed member" of STR. The subscription fee gives ConsultEcon access to STR's "dSTAR reports," which gather comparative data from hotels in particular geographic areas. 

Despite ConsultEcon's precatory language stating that the data it obtained from STR "is not for public distribution," the record on appeal does not support a conclusion that the information was "confidentially disclosed to" the City. The Appellant cites ConsultEcon's October 2, 2018, proposal to the City for the Study, which includes as an attachment ConsultEcon's "Standard Terms and Conditions." Neither the proposal nor the attachment mentions ConsultEcon's acquisition of data from STR or any obligation for the City to keep this data confidential. The "Confidentiality" section in the Standard Terms and Conditions mentions only that ConsultEcon agrees to keep confidential information so designated "by the Client" ( i.e. , the City). There is no reciprocal obligation for the City to keep confidential any information so designated by ConsultEcon. 

This case is somewhat analogous to 19-ORD-146, in which this Office found that a water rate study commissioned by the City of Williamstown from an outside entity was "not a record disclosed to the City, but the City's own record." Here, the "Ownership and Use of Documents" section of the Standard Terms and Conditions states that "[t]he Client shall be entitled to own a copy of [all documents produced by ConsultEcon] and shall have a non-exclusive license to use, copy and reproduce them." Thus, apart from ConsultEcon's unilateral recital in the Study itself, there is no evidence that the information from STR was "confidentially disclosed to" the City by ConsultEcon. 

Nor does the record on appeal establish an underlying duty of confidentiality owed by ConsultEcon to STR. The City relies only on general language from STR's website stating, "We deliver data that is confidential, accurate and actionable." This statement appears to be advertising STR's services, rather than STR imposing an obligation of confidentiality on subscribing members, such as ConsultEcon, or the members' clients. 

Even if ConsultEcon's recitation on page I-2 of the Study could be regarded as a confidentiality agreement, a mere agreement is not conclusive in determining the confidentiality of a disclosure. 19-ORD-133. Whether a record is "confidentially disclosed to an agency" is demonstrated by "the efforts made by the parties ... to ensure the confidentiality of shared information." 17-ORD-002. 

The City admits that the mayor, a city commissioner, and a city employee made "unauthorized" disclosures of the unredacted Study to two private citizens and a "potential developer" prior to Appellant's open records request. Unofficial voluntary disclosures do not automatically "result in the waiver of exemptions." 

Baker v. Jones , 199 S.W.3d 749, 753 (Ky. App. 2006); see also 09-ORD-203 ("[s]elective disclosure is only prohibited amongst open records requesters"). Nevertheless, the conduct of high-level officials is indicative of the efforts made by the parties to ensure confidentiality. Since the totality of the circumstances does not indicate a confidential disclosure, the City has not established the first element of KRS 61.878(1)(c)1. 

"Generally recognized as confidential or proprietary" 

In 

Hoy v. Kentucky Industrial Revitalization Authority , 907 S.W.2d 766, 768 (Ky. 1995), the Supreme Court of Kentucky considered the applicability of KRS 61.878(1)(c)2. 1to required disclosures of "a financial history of [a] corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability." The Court concluded, "[i]t does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is 'generally recognized as confidential or proprietary.'" Id. Therefore, the Court found that those categories of information met the second prong of the exemption. 

Types of information found by this Office to be generally recognized as confidential or proprietary include "private financial affairs" (01-ORD-143); "trade secrets, investment strategies, economic status, or business structures" (17-ORD-198; 16-ORD-273; 07-ORD-166); "the method for determining [a] contract price" and "business risks assumed" (17-ORD-002); "costing and pricing strategy" (92-ORD-1134; OAG 89-44); and "corporate assets of a non-financial nature that have required the expenditure of time and money to develop and concern the inner workings of the private entity." 10-ORD-001 (emphasis added). The common factor in these categories of information is the insight they provide into the internal operations of the entity making the disclosure to the public agency. 

The categories of tabular data obtained by ConsultEcon from STR are mainly aggregate data about the hotel industry in Paducah. The following titles of tables and data sets demonstrate the aggregate nature of the data depicted: 

Trend in Total Available Room Nights and Average Daily Available Room Nights in Paducah/McCracken County, 2012 through 2018 

Accommodations Size Distribution in Paducah/McCracken County 

Hotels and Motels by Chain Scale in Paducah/McCracken County 

Trend in Total Occupied Rooms Nights, Average Daily Occupied Room Nights and Average Annual Occupancy Rate in Paducah/McCracken County, 2012 to 2018 

Trend in Total Room Revenue, Average Daily Rate and Revenue per Available Room in Paducah/McCracken County, 2012 to 2018 

Average Number of Monthly Occupied Room Nights in Paducah/McCracken County, 2015 to 2018 

Average Daily Room Rate in Dollars by Month in Paducah/McCracken County, 2015 to 2018 

Number of High Occupancy Days by Month in Paducah/McCracken County, November 2017 to October 2018 

Average Spent on Overnight Lodging 

Total Spent on Overnight Lodging 

Average Daily Rate (2015) 

Estimated Room Demand due to Arts and Cultural Events 

Percent of Annual Room Demand due to Arts and Cultural Events

 

The only table containing non-aggregate data is Table IV-2, "Inventory of Hotel and Motel Accommodations in Paducah/McCracken County Ranked by Number of Rooms," which states the number of rooms in each of 28 listed hotels. 

The City has presented no evidence that information of this nature is "generally regarded as confidential or proprietary." Furthermore, these types of information are not similar to those previously affirmed as confidential or proprietary under KRS 61.878(1)(c)1., as they do not tend to disclose the inner workings or financial status of ConsultEcon, STR, or any other entity. 2Thus, the City has not met its burden of proof for the second element of KRS 61.878(1)(c)1. 

"Unfair commercial advantage to competitors of the entity that disclosed" 

"[I]f it is established that a document is confidential or proprietary, and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the document should be protected from disclosure." 

Southeastern United Medigroup, Inc. v. Hughes , 952 S.W.2d 195, 199 (Ky. 1997) (abrogated in part on other grounds by 

Hoskins v. Maricle , 150 S.W.3d 1 (Ky. 2004)). 

In 

Marina Management Service, Inc. v. Cabinet for Tourism , 906 S.W.2d 318, 319 (Ky. 1995), the Court found KRS 61.878(1)(c)1. applicable to "information on asset values, notes payable, rental amounts ..., related party transactions, profit margins, net earnings, and capital income" of a private corporation. In finding that the information would permit an unfair commercial advantage to competitors, the Court reasoned, "The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations." Id. 

The City argues that disclosure of the tabular data obtained from STR would give an unfair commercial advantage to ConsultEcon's competitors because ConsultEcon paid a membership fee for its subscription to STR. 3The City has not stated the amount of the membership fee, nor has it alleged that ConsultEcon operates in a highly competitive market. See 17-ORD-002; 12-ORD-076; 09-ORD-031; 08-ORD-083 (existence of a highly competitive market is a relevant factor in favor of nondisclosure). 

Furthermore, the City has not shown how the particular data sets included in the Study would be substantially advantageous to any hypothetical competitors of ConsultEcon, particularly after the Study had been paid for and completed. Based on such minimal information, this Office cannot conclude that public disclosure of the STR data ConsultEcon provided to the City would permit competitors of ConsultEcon "substantially more than a trivial unfair advantage." Southeastern United Medigroup , 952 S.W.2d at 199. 

The City further argues that "any local hotels that are not members of STR would be given an unfair commercial advantage over those hotels that are paid members due to the disclosure of and/or free access to proprietary information that STR only makes available to its paid subscribers." Again, the City has not shown that non-payment of the STR membership fee amounts to substantially more than a trivial advantage. Nor has the City shown that these data sets, consisting of aggregate information plus the number of rooms in each of 28 hotels, would enable non-member hotels "to ascertain the economic status" of individual hotels to any unfair extent. Marina Management Service , 906 S.W.2d at 319. 

Thus, the City has not met its burden of proof as to any of the three elements of KRS 61.878(1)(c)1. Accordingly, this Office finds that the City's redactions to the Study were made in violation of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 KRS 61.878(1)(c)2. contains the identical language, "generally recognized as confidential or proprietary," that appears in KRS 61.878(1)(c)1.

2 While Table IV-2 discloses one item of data about individual hotels -- their number of rooms -- there is likewise no evidence that that information is generally regarded as either confidential or proprietary.

3 The City makes no attempt to establish that STR itself would be unfairly disadvantaged by disclosure of the data.



 

20-ORD-020

LLM Generated Data

Appellant: Leonel Martinez

Agency: KSP

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

KSP did not violate the Open Records Act in denying Leonel Martinez's request to inspect the policy regarding inmates receiving merit status. The denial was based on KRS 197.025(2), which allows correctional facilities to deny an inmate's request unless the record contains a specific reference to that inmate. Martinez's arguments regarding the constitutionality of the policy were deemed outside the scope of an open records appeal.

Cited Opinions

  • 00-ORD-2: F

    Establishes that correctional facilities can deny an inmate's request unless the record contains a specific reference to that inmate.

  • 04-ORD-076: F

    Consistently recognized that correctional facilities can deny an inmate's request unless the record contains a specific reference to that inmate.

  • 08-ORD-187: F

    Expressly authorizes correctional facilities to deny an inmate's request unless the record contains a specific reference to that inmate.

  • 14-ORD-235: F

    Acknowledges that correctional facilities can deny an inmate's request unless the record contains a specific reference to that inmate.

  • 15-ORD-088: F

    States that even if a policy applies to a group of inmates, the record must specifically apply to the requesting inmate for access.

  • 10-ORD-109: F

    Upheld DOC's position that policies and procedures do not contain a specific reference to an individual inmate.

  • 17-ORD-054: F

    Recognizes that policies and procedures are not the type of records that contain a specific reference to an individual inmate.

  • 08-ORD-149: F

    States that arguments regarding the constitutionality of a policy are outside the purview of an open records appeal.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On December 3, 2019, inmate Leonel Martinez ("Appellant") submitted a Request to Inspect Public Records form to KSP, requesting to inspect any policy issued by the Department of Corrections ("DOC") regarding inmates receiving merit status from a Unit Administrator. On January 6, 2020, KSP denied the request, stating, "[t]he records you request concerning DOC policy and other inmate status on merits by UA Robertson do not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2). 

On January 7, 2020, Appellant appealed, stating that the merit status policy violated inmate's rights under the 14th Amendment of the United States Constitution. On January 15, 2020, KSP responded, stating that a long line of decisions by this Office support the application of KRS 197.025(2) in denying requests for records that do not contain a specific reference to the requesting inmate. On January 27, 2020, Appellant replied, stating that the policy applies to Hispanic inmates and therefore, specifically references him because he is Hispanic. 

KSP properly denied the request pursuant to KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). KRS 197.025(2) provides: 

KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.

(Emphasis added). This Office has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities under the jurisdiction of DOC, whether state or local, to deny an inmate's request unless the record contains a specific reference to that inmate. 00-ORD-2; 04-ORD-076; 08-ORD-187; 14-ORD-235. Even if the policy does apply to the group Appellant alleges, the statutory text is clear that the requested record must specifically apply to Appellant for him to gain access to it. 15-ORD-088. 

This Office has also upheld DOC's position that policies and procedures are not the type of records that contain a specific reference to an individual inmate. 10-ORD-109; 17-ORD-054. Regardless of the hardship Appellant believes KRS 197.025(2) imposes, he is expressly precluded from access to records that do not contain a specific reference to him by the mandatory language of the statute. Appellant's arguments regarding the constitutionality of the policy are outside the purview of an open records appeal. See KRS 61.880(2)(a); 08-ORD-149. Accordingly, KSP did not violate the Act in denying the request. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-019

LLM Generated Data

Appellant: WPSD Local 6 News

Agency: City

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The City violated the Act by improperly redacting the Study in reliance on KRS 61.878(1)(c)1. The City failed to establish that the information was confidentially disclosed to the agency, generally recognized as confidential or proprietary, and would permit competitors an unfair commercial advantage. The City's redactions were made in violation of the Act.

Cited Opinions

  • 97-ORD-87: O

    Cited to establish that a public agency cannot withhold public records simply because they may be obtained from another source.

  • 19-ORD-146: O

    Analogous case where a water rate study commissioned by a city was found not to be a record disclosed to the city.

  • 19-ORD-133: O

    Case discussing the efforts parties make to ensure confidentiality of shared information.

  • 17-ORD-002: O

    Case discussing the method for determining a contract price and business risks assumed as generally recognized as confidential or proprietary.

  • 09-ORD-203: O

    Selective disclosure is only prohibited amongst open records requesters.

  • 01-ORD-143: O

    Private financial affairs are generally recognized as confidential or proprietary.

  • 17-ORD-198: O

    Trade secrets, investment strategies, economic status, or business structures are generally recognized as confidential or proprietary.

  • 16-ORD-273: O

    Similar to 17-ORD-198, discussing information that is generally recognized as confidential or proprietary.

  • 07-ORD-166: O

    Discussion on information that is generally recognized as confidential or proprietary.

  • 92-ORD-113: O

    Discussion on costing and pricing strategy as generally recognized as confidential or proprietary.

  • 10-ORD-001: O

    Discussion on corporate assets that have required time and money to develop and concern the inner workings of the private entity.

  • 12-ORD-076: O

    Discussion on information that is generally recognized as confidential or proprietary.

  • 09-ORD-031: O

    Discussion on information that is generally recognized as confidential or proprietary.

  • 08-ORD-083: O

    Discussion on information that is generally recognized as confidential or proprietary.

  • OAG 89-44: O

    Discussion on information that is generally recognized as confidential or proprietary.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the City violated the Act in partially denying an October 22, 2019, request by WPSD Local 6 News ("Appellant") for a copy of a January 2019 "Paducah TIF District Hotel Market Study" ("the Study") prepared for the City by ConsultEcon, Inc. ("ConsultEcon"). For the reasons stated below, this Office finds that the City improperly redacted the Study in reliance on KRS 61.878(1)(c)1. 

The City responded to Appellant's request by providing a redacted copy of the Study with the following explanation: 

Portions have been redacted in accordance with KRS 61.878(c)(1) [ sic ] which refers to records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records. We have redacted the tabular data that is proprietary to STR, Inc.

On October 31, 2019, after Appellant requested further explanation for the redactions, the City generally reiterated its original response. However, it did add that the City conducted its redactions after consultation with ConsultEcon. The City also referred to the following language from ConsultEcon at page I-2 of the Study: 

Possession of this report does not carry with it the right of publication. This report incorporates tabular data that is proprietary to STR, Inc. [T]he data is not for public distribution. This report will be presented to third parties in its entirety and no abstracting of the report will be made without first obtaining permission of ConsultEcon, Inc., which consent will not be unreasonably withheld. 

.... Neither all nor any part of the contents of this study shall be disseminated to the public through advertising media, news media or any other public means of communication without the prior consent of ConsultEcon, Inc.

Appellant initiated this appeal on November 7, 2019. 

The City argues that this appeal is moot because the Appellant obtained an unredacted copy of the Study from another source. These conditions, however, do not render an appeal moot. See 97-ORD-87 ("a public agency cannot withhold public records from a requester simply because the records may be obtained from another source"). 

Alternatively, the City relies upon KRS 61.878(1)(c)1., which states in relevant part, "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records." Under KRS 61.880(2)(c), a public agency bears the burden of proof in sustaining its denial of access to public records. Exceptions to the Act are to be "strictly construed." KRS 61.871. Thus, to support redacting records under KRS 61.878(1)(c)1., a public agency must establish that the material in question (1) has been confidentially disclosed to the agency, (2) is generally recognized as confidential or proprietary, and (3) would permit competitors of the disclosing entity an unfair commercial advantage if disclosed. 

"Records confidentially disclosed to an agency" 

The material for which the City claims confidential status is the "tabular data" obtained by ConsultEcon from a third-party research firm, STR Global, Inc. ("STR"), concerning hotel occupancy rates in Paducah over a period of years. According to the City's response to the appeal, ConsultEcon is a "subscribed member" of STR. The subscription fee gives ConsultEcon access to STR's "dSTAR reports," which gather comparative data from hotels in particular geographic areas. 

Despite ConsultEcon's precatory language stating that the data it obtained from STR "is not for public distribution," the record on appeal does not support a conclusion that the information was "confidentially disclosed to" the City. The Appellant cites ConsultEcon's October 2, 2018, proposal to the City for the Study, which includes as an attachment ConsultEcon's "Standard Terms and Conditions." Neither the proposal nor the attachment mentions ConsultEcon's acquisition of data from STR or any obligation for the City to keep this data confidential. The "Confidentiality" section in the Standard Terms and Conditions mentions only that ConsultEcon agrees to keep confidential information so designated "by the Client" ( i.e. , the City). There is no reciprocal obligation for the City to keep confidential any information so designated by ConsultEcon. 

This case is somewhat analogous to 19-ORD-146, in which this Office found that a water rate study commissioned by the City of Williamstown from an outside entity was "not a record disclosed to the City, but the City's own record." Here, the "Ownership and Use of Documents" section of the Standard Terms and Conditions states that "[t]he Client shall be entitled to own a copy of [all documents produced by ConsultEcon] and shall have a non-exclusive license to use, copy and reproduce them." Thus, apart from ConsultEcon's unilateral recital in the Study itself, there is no evidence that the information from STR was "confidentially disclosed to" the City by ConsultEcon. 

Nor does the record on appeal establish an underlying duty of confidentiality owed by ConsultEcon to STR. The City relies only on general language from STR's website stating, "We deliver data that is confidential, accurate and actionable." This statement appears to be advertising STR's services, rather than STR imposing an obligation of confidentiality on subscribing members, such as ConsultEcon, or the members' clients. 

Even if ConsultEcon's recitation on page I-2 of the Study could be regarded as a confidentiality agreement, a mere agreement is not conclusive in determining the confidentiality of a disclosure. 19-ORD-133. Whether a record is "confidentially disclosed to an agency" is demonstrated by "the efforts made by the parties ... to ensure the confidentiality of shared information." 17-ORD-002. 

The City admits that the mayor, a city commissioner, and a city employee made "unauthorized" disclosures of the unredacted Study to two private citizens and a "potential developer" prior to Appellant's open records request. Unofficial voluntary disclosures do not automatically "result in the waiver of exemptions." 

Baker v. Jones , 199 S.W.3d 749, 753 (Ky. App. 2006); see also 09-ORD-203 ("[s]elective disclosure is only prohibited amongst open records requesters"). Nevertheless, the conduct of high-level officials is indicative of the efforts made by the parties to ensure confidentiality. Since the totality of the circumstances does not indicate a confidential disclosure, the City has not established the first element of KRS 61.878(1)(c)1. 

"Generally recognized as confidential or proprietary" 

In 

Hoy v. Kentucky Industrial Revitalization Authority , 907 S.W.2d 766, 768 (Ky. 1995), the Supreme Court of Kentucky considered the applicability of KRS 61.878(1)(c)2. 1to required disclosures of "a financial history of [a] corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability." The Court concluded, "[i]t does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is 'generally recognized as confidential or proprietary.'" Id. Therefore, the Court found that those categories of information met the second prong of the exemption. 

Types of information found by this Office to be generally recognized as confidential or proprietary include "private financial affairs" (01-ORD-143); "trade secrets, investment strategies, economic status, or business structures" (17-ORD-198; 16-ORD-273; 07-ORD-166); "the method for determining [a] contract price" and "business risks assumed" (17-ORD-002); "costing and pricing strategy" (92-ORD-1134; OAG 89-44); and "corporate assets of a non-financial nature that have required the expenditure of time and money to develop and concern the inner workings of the private entity." 10-ORD-001 (emphasis added). The common factor in these categories of information is the insight they provide into the internal operations of the entity making the disclosure to the public agency. 

The categories of tabular data obtained by ConsultEcon from STR are mainly aggregate data about the hotel industry in Paducah. The following titles of tables and data sets demonstrate the aggregate nature of the data depicted: 

Trend in Total Available Room Nights and Average Daily Available Room Nights in Paducah/McCracken County, 2012 through 2018 

Accommodations Size Distribution in Paducah/McCracken County 

Hotels and Motels by Chain Scale in Paducah/McCracken County 

Trend in Total Occupied Rooms Nights, Average Daily Occupied Room Nights and Average Annual Occupancy Rate in Paducah/McCracken County, 2012 to 2018 

Trend in Total Room Revenue, Average Daily Rate and Revenue per Available Room in Paducah/McCracken County, 2012 to 2018 

Average Number of Monthly Occupied Room Nights in Paducah/McCracken County, 2015 to 2018 

Average Daily Room Rate in Dollars by Month in Paducah/McCracken County, 2015 to 2018 

Number of High Occupancy Days by Month in Paducah/McCracken County, November 2017 to October 2018 

Average Spent on Overnight Lodging 

Total Spent on Overnight Lodging 

Average Daily Rate (2015) 

Estimated Room Demand due to Arts and Cultural Events 

Percent of Annual Room Demand due to Arts and Cultural Events

The only table containing non-aggregate data is Table IV-2, "Inventory of Hotel and Motel Accommodations in Paducah/McCracken County Ranked by Number of Rooms," which states the number of rooms in each of 28 listed hotels. 

The City has presented no evidence that information of this nature is "generally regarded as confidential or proprietary." Furthermore, these types of information are not similar to those previously affirmed as confidential or proprietary under KRS 61.878(1)(c)1., as they do not tend to disclose the inner workings or financial status of ConsultEcon, STR, or any other entity. 2Thus, the City has not met its burden of proof for the second element of KRS 61.878(1)(c)1. 

"Unfair commercial advantage to competitors of the entity that disclosed" 

"[I]f it is established that a document is confidential or proprietary, and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the document should be protected from disclosure." 

Southeastern United Medigroup, Inc. v. Hughes , 952 S.W.2d 195, 199 (Ky. 1997) (abrogated in part on other grounds by 

Hoskins v. Maricle , 150 S.W.3d 1 (Ky. 2004)). 

In 

Marina Management Service, Inc. v. Cabinet for Tourism , 906 S.W.2d 318, 319 (Ky. 1995), the Court found KRS 61.878(1)(c)1. applicable to "information on asset values, notes payable, rental amounts ..., related party transactions, profit margins, net earnings, and capital income" of a private corporation. In finding that the information would permit an unfair commercial advantage to competitors, the Court reasoned, "The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations." Id. 

The City argues that disclosure of the tabular data obtained from STR would give an unfair commercial advantage to ConsultEcon's competitors because ConsultEcon paid a membership fee for its subscription to STR. 3The City has not stated the amount of the membership fee, nor has it alleged that ConsultEcon operates in a highly competitive market. See 17-ORD-002; 12-ORD-076; 09-ORD-031; 08-ORD-083 (existence of a highly competitive market is a relevant factor in favor of nondisclosure). 

Furthermore, the City has not shown how the particular data sets included in the Study would be substantially advantageous to any hypothetical competitors of ConsultEcon, particularly after the Study had been paid for and completed. Based on such minimal information, this Office cannot conclude that public disclosure of the STR data ConsultEcon provided to the City would permit competitors of ConsultEcon "substantially more than a trivial unfair advantage." Southeastern United Medigroup , 952 S.W.2d at 199. 

The City further argues that "any local hotels that are not members of STR would be given an unfair commercial advantage over those hotels that are paid members due to the disclosure of and/or free access to proprietary information that STR only makes available to its paid subscribers." Again, the City has not shown that non-payment of the STR membership fee amounts to substantially more than a trivial advantage. Nor has the City shown that these data sets, consisting of aggregate information plus the number of rooms in each of 28 hotels, would enable non-member hotels "to ascertain the economic status" of individual hotels to any unfair extent. Marina Management Service , 906 S.W.2d at 319. 

Thus, the City has not met its burden of proof as to any of the three elements of KRS 61.878(1)(c)1. Accordingly, this Office finds that the City's redactions to the Study were made in violation of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 KRS 61.878(1)(c)2. contains the identical language, "generally recognized as confidential or proprietary," that appears in KRS 61.878(1)(c)1.

2 While Table IV-2 discloses one item of data about individual hotels -- their number of rooms -- there is likewise no evidence that that information is generally regarded as either confidential or proprietary.

3 The City makes no attempt to establish that STR itself would be unfairly disadvantaged by disclosure of the data.



 

20-ORD-017

LLM Generated Data

Appellant: J. Gregory Troutman

Agency: Office of the Governor

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Office of the Governor did not violate the Open Records Act in the disposition of J. Gregory Troutman's request for records relating to a highway project, a parcel of real estate, or two named individuals. The request was found to be unreasonably burdensome and lacking in specificity, failing to precisely describe the public records as required by KRS 61.872(3)(b). As a result, the Governor's Office did not violate the Act by requiring greater specificity in the request. The decision found no violation of the Act, and it was deemed unnecessary to address the agency's alternative position regarding unreasonable burden. A party aggrieved by this decision may appeal it in the appropriate circuit court.

Cited Opinions

  • 98-ORD-17: O

    Establishes the standard for precise description of public records under KRS 61.872(3)(b).

  • 13-ORD-077: O

    Provides an example of a request that failed to meet the standard for precise description of public records.

  • 15-ORD-212: O

    Cited as an example where a request for records was denied for lack of a precise description.

  • 00-ORD-79: O

    Cited as an example where a request for records was properly denied for lack of a precise description.

  • 96-ORD-101: O

    Provides guidance on the interpretation of requests for public records and the requirement for specificity.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Office of the Governor ("Governor's Office") violated the Open Records Act ("the Act") in the disposition of a December 3, 2019, request by attorney J. Gregory Troutman ("Appellant") for copies of certain records relating to a highway project, a parcel of real estate, or two named individuals. For the reasons that follow, this Office finds no violation of the Act. 

In his letter, transmitted by fax, Appellant requested "[a]ll documents evidencing communications between any employee and/or representative of the Commonwealth of Kentucky Transportation Cabinet, Department of Highways and Governor Matthew Bevin" or "any employee of [his] administrative staff ... regarding" three subjects. Those subjects included "the project to reconstruct US 42 and widen from 2 lanes to 3 lanes from Jefferson/Oldham County Line to Ridgemoor Drive"; "the residential real estate located at 12920 U.S. Highway 42, Prospect, KY 40059"; and "Joseph J. Gerth, III and/or Mary A. Gerth." 

The Governor's Office issued a response on December 9, 2019, 1asserting that the request was unreasonably burdensome under KRS 61.872(6) and did not "precisely describe[] the public records" as required by KRS 61.872(3)(b). In particular, the Governor's Office stated that "documents evidencing communications" was a "vague categor[y]," that the requests "relate[d] to very broad topics that lack any kind of specificity that would make a search reasonable," and that Appellant had "failed to include any time-period limitation to narrow the otherwise broad and vague request." 

This Office received this appeal on January 2, 2020. On January 14, 2020, due to the intervening change of administration since December 9, 2019, the Governor's Office declined to respond substantively to the appeal because "no current employee of the Office of the Governor participated in the response or has any knowledge regarding the breadth of the search necessary to locate any potentially responsive records." 

KRS 61.872(3)(b) requires a public agency to mail copies of records only "after [the requester] precisely describes the public records which are readily available within the public agency." A description is precise "if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted). This standard is generally not met by requests that are unlimited in temporal scope or do not "describe records by type, origin, county, or any identifier other than relation to a subject." 13-ORD-077. 

In 15-ORD-212, a request for records "documenting the contacts and/or communications" by detectives of the Lexington Police Department with judges, law enforcement agencies, prosecutors, or "any person of the public nature," which was unlimited in temporal scope, did not meet the standard for precise description. Even with a specified temporal scope, a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ... from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description. 00-ORD-79. Similarly, a request specifying the temporal scope for "records indicative of [a named individual's] assistance with Kentucky State Police matters, including tips given to [the] department" failed to describe an identifiable class of records and was properly denied. 13-ORD-077. 

Here, Appellant requested "documents evidencing communications" by the Governor or his administrative staff with the Department of Highways on certain topics, with no limitation in temporal scope. "Documents evidencing communications" is similar in its ambiguity to "records indicative of assistance." The request fails to identify a specific set of records limited "by type ... or any identifier other than relation to a subject." 13-ORD-077. Whether a document "evidences" a communication is a characterization subject to interpretation, rendering the description "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. 

Because the request did not "precisely describe" records within the meaning of KRS 61.872(3)(b), the Governor's Office did not violate the Act by requiring greater specificity. Since this finding is dispositive of the appeal, it is unnecessary to address the agency's alternative position that the request created an unreasonable burden under KRS 61.872(6). 

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.

Footnotes 

Footnotes

1 Since the record does not reflect whether the fax transmission reached the Governor's Office before the close of business on December 3, 2019, this Office makes no finding as to whether the response was timely under KRS 61.880(1).



 

20-OMD-018

LLM Generated Data

Appellant: Tanyqua Oliver

Agency: Fayette Circuit Judge Ernesto Scorsone

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Fayette Circuit Judge Ernesto Scorsone was found not to be subject to the Open Meetings Act, as circuit judges are not considered public agencies under the Act. The decision emphasized the constitutional separation of powers and the inherent authority of courts to regulate court proceedings. Therefore, the Office lacks jurisdiction over the appeal. The law was not violated or subverted in this case.

Cited Opinions

  • 13-OMD-166: F

    This decision states that the Open Meetings Act does not apply to circuit courts, as circuit judges are not considered public agencies under the Act.

  • OAG 97-9: O

    Cited to support the inherent power of courts to regulate the admission of the public to court proceedings and to preserve decorum and ensure the orderly administration of justice.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether Fayette Circuit Judge Ernesto Scorsone ("Judge Scorsone") violated the Open Meetings Act ("the Act") when, during a hearing on January 10, 2020, he ordered those present not to record or broadcast the proceedings with their cell phones. For the reasons that follow, this Office finds that Judge Scorsone is not subject to the Act. 

On January 10, 2020, Tanyqua Oliver ("Appellant") submitted a complaint to the Fayette Circuit Clerk, stating the alleged violation and proposing remedies, pursuant to KRS 61.846(1). Having received no response by January 16, 2020, Appellant initiated this appeal. On January 27, 2020, the Administrative Office of the Courts responded to the appeal on behalf of Judge Scorsone. 

A threshold issue is whether the Act applies to the proceedings of circuit courts. KRS 61.805(2) defines "public agency" as: 

(a) Every state or local government board, commission, and authority; 

(b) Every state or local legislative board, commission, and committee; 

(c) Every county and city governing body, council, school board, special district board, and municipal corporation; 

(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act; 

(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government; 

(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency," a state or local officer, or any combination thereof; 

(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and 

(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection[.]

None of these subsections explicitly applies to courts. Kentucky's circuit courts are created by Section 112 of the Kentucky Constitution, not by an executive order or legislative act. 

Even assuming that circuit judges were "public agencies" under the Act, KRS 61.810(1) governs only "meetings of a quorum of the members of any public agency." A circuit judge is an individual elected official, not a quorum of a body of members assembled for a meeting. Where there is no meeting under the Act, its provisions do not apply. 13-OMD-166. 

Furthermore, to apply the Act to the courts would impinge upon the constitutional separation of powers under Sections 27 and 28 of the Kentucky Constitution. "[T]he separation of powers doctrine is fundamental to Kentucky's tripartite system of government and must be 'strictly construed.'" 

Legislative Research Commission ex rel. Prather v. Brown , 664 S.W.2d 907, 911 (Ky. 1984) (quoting 

Arnett v. Meredith , 275 Ky. 223, 121 S.W.2d 36, 38 (1938)). 

"Courts have inherent power to act to preserve decorum and ensure the orderly administration of justice in the conduct of judicial proceedings.... This includes the authority to regulate the admission of the public to court proceedings." OAG 97-9 (citing 

Smothers v. Lewis , 672 S.W.2d 62 (Ky. 1984); 

Jackson v. Commonwealth , 38 S.W. 422 (Ky. 1896)). 

The Supreme Court of Kentucky has observed "that our Constitution makes it the highest court of the state and gives it the authority to 'exercise control of the Court of Justice.'" Ex parte Farley , 570 S.W.2d 617, 622 (Ky. 1978) (quoting KY. CONST. § 110(2)(a)). It is instructive that the Court in Farley declared both substantive and procedural provisions of the Open Records Act to be "interferences that we regard as inconsistent with the orderly conduct of our own business," and thus unacceptable "as a matter of comity." 570 S.W.2d at 625. 

In the view of this Office, the open meetings provisions of the Act are no less intrusive than the Open Records Act into "the sphere of authority that is constitutionally vested in the courts." Id. Thus, under both the constitutional separation of powers and the Act itself, Judge Scorsone is not subject to the requirements of the Act. Accordingly, this Office lacks jurisdiction over this appeal. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.



 

20-ORD-017

LLM Generated Data

Appellant: J. Gregory Troutman

Agency: Office of the Governor

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Office of the Governor did not violate the Open Records Act in the disposition of the request by J. Gregory Troutman. The request made by Troutman was deemed to be unreasonably burdensome and lacking in specificity, failing to precisely describe the public records as required by KRS 61.872(3)(b). The decision found that the Governor's Office did not violate the Act by requiring greater specificity in the request. Since this finding was dispositive, the alternative position of unreasonable burden was not addressed. The decision provides the option for appeal through the appropriate circuit court.

Cited Opinions

  • 98-ORD-17: O

    Establishes the standard for precise description of public records under KRS 61.872(3)(b).

  • 13-ORD-077: O

    Provides an example of a request that failed to describe an identifiable class of records and was properly denied.

  • 15-ORD-212: O

    Illustrates a request that was denied for lack of a precise description due to being unlimited in temporal scope.

  • 00-ORD-79: O

    Cited as an example where a request was properly denied for lack of a precise description.

  • 96-ORD-101: O

    Provides guidance on requests that are so nonspecific as to preclude the custodian from determining the existing records it might encompass.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Office of the Governor ("Governor's Office") violated the Open Records Act ("the Act") in the disposition of a December 3, 2019, request by attorney J. Gregory Troutman ("Appellant") for copies of certain records relating to a highway project, a parcel of real estate, or two named individuals. For the reasons that follow, this Office finds no violation of the Act. 

In his letter, transmitted by fax, Appellant requested "[a]ll documents evidencing communications between any employee and/or representative of the Commonwealth of Kentucky Transportation Cabinet, Department of Highways and Governor Matthew Bevin" or "any employee of [his] administrative staff ... regarding" three subjects. Those subjects included "the project to reconstruct US 42 and widen from 2 lanes to 3 lanes from Jefferson/Oldham County Line to Ridgemoor Drive"; "the residential real estate located at 12920 U.S. Highway 42, Prospect, KY 40059"; and "Joseph J. Gerth, III and/or Mary A. Gerth." 

The Governor's Office issued a response on December 9, 2019, 1asserting that the request was unreasonably burdensome under KRS 61.872(6) and did not "precisely describe[] the public records" as required by KRS 61.872(3)(b). In particular, the Governor's Office stated that "documents evidencing communications" was a "vague categor[y]," that the requests "relate[d] to very broad topics that lack any kind of specificity that would make a search reasonable," and that Appellant had "failed to include any time-period limitation to narrow the otherwise broad and vague request." 

This Office received this appeal on January 2, 2020. On January 14, 2020, due to the intervening change of administration since December 9, 2019, the Governor's Office declined to respond substantively to the appeal because "no current employee of the Office of the Governor participated in the response or has any knowledge regarding the breadth of the search necessary to locate any potentially responsive records." 

KRS 61.872(3)(b) requires a public agency to mail copies of records only "after [the requester] precisely describes the public records which are readily available within the public agency." A description is precise "if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted). This standard is generally not met by requests that are unlimited in temporal scope or do not "describe records by type, origin, county, or any identifier other than relation to a subject." 13-ORD-077. 

In 15-ORD-212, a request for records "documenting the contacts and/or communications" by detectives of the Lexington Police Department with judges, law enforcement agencies, prosecutors, or "any person of the public nature," which was unlimited in temporal scope, did not meet the standard for precise description. Even with a specified temporal scope, a request for copies of "[a]ny and all records related to the granting of easements by the City of Indian Hills to its property owners for the purpose of connecting to any MSD sewer line ... from January 1, 1990 to January 1, 1999" was properly denied for lack of a precise description. 00-ORD-79. Similarly, a request specifying the temporal scope for "records indicative of [a named individual's] assistance with Kentucky State Police matters, including tips given to [the] department" failed to describe an identifiable class of records and was properly denied. 13-ORD-077. 

Here, Appellant requested "documents evidencing communications" by the Governor or his administrative staff with the Department of Highways on certain topics, with no limitation in temporal scope. "Documents evidencing communications" is similar in its ambiguity to "records indicative of assistance." The request fails to identify a specific set of records limited "by type ... or any identifier other than relation to a subject." 13-ORD-077. Whether a document "evidences" a communication is a characterization subject to interpretation, rendering the description "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. 

Because the request did not "precisely describe" records within the meaning of KRS 61.872(3)(b), the Governor's Office did not violate the Act by requiring greater specificity. Since this finding is dispositive of the appeal, it is unnecessary to address the agency's alternative position that the request created an unreasonable burden under KRS 61.872(6). 

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.

Footnotes 

Footnotes

1 Since the record does not reflect whether the fax transmission reached the Governor's Office before the close of business on December 3, 2019, this Office makes no finding as to whether the response was timely under KRS 61.880(1).



 

20-ORD-016

LLM Generated Data

Appellant: Scott Horn

Agency: LPL

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The LPL agency violated the Act by failing to provide a specific explanation for withholding records and by not categorizing the documents based on the exemptions it relied upon. The agency's response was deficient and did not comply with the requirements of the Act. The decision found that LPL failed to justify the withholding of records under the cited exemptions, thereby violating the Act.

Cited Opinions

  • 19-ORD-045: O

    The decision finds that LPL violated the Act by invoking exemptions without explaining how they applied to the withheld records.

  • 19-ORD-147: O

    The decision finds that LPL violated the Act by invoking the exemption in KRS 61.878(1)(a) without explaining how it applied to the withheld documents.

  • 16-ORD-057: O

    The decision establishes the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records.

  • 00-ORD-76: N

    This decision is cited in relation to whether additional correspondence amounts to 'requests for information' to which an agency is not required to respond.

  • 04-ORD-080: N

    This decision is cited in relation to whether additional correspondence amounts to 'requests for information' to which an agency is not required to respond.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron, Attorney General; Michelle D. Harrison, Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether LPL violated the Act in the disposition of Scott Horn's ("the Appellant") December 1, 2019, request for the following records: 

1. Records of communications between LPL management and diversity consultant Demetria Miles-McDonald, including emails, email attachments, text messages to/from LPL provided cell phones, and meeting notes[;] 

2. Records reflecting plans, decisions, or roadmaps that resulted from communications with the diversity consultant[;] 

3. Results of LPL surveys of LPL staff conducted or commissioned by LPL management during 2019[;] 

4. Records reflecting LPL management's upcoming plans to transfer/rotate branch managers, including any that show their future or planned assignments, and any communications to branch managers informing them of these decisions or plans. 1

 

Mr. Horn clarified that all references to "LPL management" encompassed the executive director, the director of access and initiatives, the director of community engagement, the finance officer, the branch managers, and "all additional staff located in the administrative suite of the central library." 

LPL partially denied Appellant's request. Quoting KRS 61.878(1)(a),(i), and (j), LPL generally maintained that, "[s]ince certain requests made in Sections 1-4 represent personal information, preliminary drafts, notes, recommendations, or memoranda, your request to inspect records of this nature is denied. No final agency action has been taken, therefore, this information will be excluded from the records made available to you." Based upon the following, this Office finds the agency's response violated the Act. 

As a threshold matter, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) [business] days . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." LPL's December 4, 2019, response to Appellant's December 1, 2019, request was timely under KRS 61.880(1), but otherwise deficient because LPL failed to either permit Appellant to inspect non-exempt responsive records or explain the basis for exceptions upon which it relied to deny access to records it withheld. Pursuant to KRS 61.880(1), a public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld ." (emphasis added.) The language of KRS 61.880(1) "directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," such as that provided here, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. 

KRS 61.880(2)(c) states, "[t]he burden of proof in sustaining the action shall rest with the agency[.]" The Kentucky Supreme Court has recognized that a public agency "bears the burden to rebut the strong presumption in favor of disclosure." 

Commonwealth v. Chestnut , 250 S.W.3d 655, 660 (Ky. 2008). A "bare assertion" simply does not satisfy that burden. 19-ORD-045, p. 9. Here, LPL cited the statutory exceptions it relied upon per KRS 61.880(1), but failed to provide any explanation of how the cited exceptions applied to records it withheld. 

First , LPL violated the Act by invoking the exemption in KRS 61.878(1)(a) without explaining how this exemption applied to the category of documents withheld. LPL's unsupported statement that disclosure of unspecified records or information would constitute a clearly unwarranted invasion of personal privacy, without any specific facts or context, "was merely an insufficient paraphrase of the statutory language." 19-ORD-147, p. 1. A public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). 

"With no detailed explanation of the privacy interest at issue, [this Office] must find that [the agency] has not met its burden of proof under KRS 61.880(2)(c) to sustain its invocation of KRS 61.878(1)(a)[.]" 16-ORD-057, p. 4. Existing legal authority permits LPL to withhold truly personal information, such as home addresses, telephone numbers, Social Security Numbers, or medical information from existing responsive documents. See, e.g., 

Zink v. Commonwealth of Kentucky , 902 S.W.2d 825, 828 (Ky. App. 1994). But LPL may not withhold records in their entirety simply because they may contain such personal information. KRS 61.878(4). 

In 

Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records (or portions thereof). Recognizing the Act "exhibits a general bias favoring disclosure," the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. Although there may be instances where a categorical redaction of information is reasonable, 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013), the determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit. Ky. Bd. of Examiners of Psychologists , 826 S.W.2d at 327-328. This has been called an "intrinsically situational" determination that can only be made in a "specific context." Id. 

Significantly, the Kentucky Supreme Court has rejected the practice of " blanket denials of ORA requests, i.e. , the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt . . . ." Kentucky New Era, Inc . 415 S.W.3d at 88 (original emphasis). In that case, the Court determined that although the City employed a "categorical" redaction policy, the City had "complied scrupulously with KRS 61.878(4) by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information." Id. 

Unlike the City in Kentucky New Era , in responding to Appellant's request under the Act, and on appeal, LPL merely claimed that "certain correspondence contained personal information about employees." 2LPL did not explain how the information was personal in any manner sufficient to weigh the interests between privacy and public access. Nor did it identify any discrete category of information that was inherently personal. LPL also failed to explain how the documents contained such extensive personal information to warrant withholding the records in their entirety. For these reasons, LPL violated the Act. 

Second , LPL violated the Act by failing to identify the documents withheld, categorize the documents based on whether KRS 61.878(1)(i) or (j) applied, and explain how those exceptions applied to the category of documents withheld. These exemptions permit agencies to withhold records that include preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, and preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. But under University of Kentucky v. Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader , "preliminary records which form the basis for the agency's final action are subject to disclosure." 579 S.W.3d 858, 863 (Ky. App. 2018). 

In response to Appellant's four requests, LPL maintained that "the [Decide] Diversity consultant's work is not complete. The work continues and is in phase two. No formal presentation has been reported to the Board and no final action has been taken by the [LPL]." LPL's response is not sufficient. Both initially and in subsequent responses, LPL failed to identify or make a good faith estimate of how many responsive documents it possessed. It further failed to identify which category of records it withheld on the basis of KRS 61.878(1)(i) or (j), and which categories of records it withheld on the basis of KRS 61.878(1)(a). LPL's response amounts to a blanket denial. Furthermore, the record on appeal is devoid of adequate information to determine whether some or all of the records fall within the parameters of each exemption claimed. 

Instead, the record on appeal demonstrates that on December 9, 2019, LPL transferred the Village Branch manager from her position and sent an internal bulletin to staff announcing that personnel change, as well as other management changes. The bulletin further stated, "[b]ased on the feedback we have received from the staff and Community served by the Village Branch, we recognize the need for a Spanish-speaking Manager at that location." The record, therefore, suggests that LPL took final action. To the extent any responsive communications, recommendations, or memoranda between Decide Diversity and LPL contributed to this action, those records are no longer preliminary and must be disclosed. In the absence of sufficient information to determine whether some or all of the withheld material forfeited its preliminary character, this Office must conclude LPL failed to satisfy its burden of justifying withholding such records under KRS 61.878(1)(i) or (j). 

In conclusion, LPL's initial response to the first itemized request violated the Act because LPL failed to explain how the exemptions it relied upon applied to the relevant records. Regarding itemized requests two, three, and four, LPL also argued on appeal that there were no responsive documents to these requests that were not provided. However, LPL's initial response denying the request applied all of its claimed exceptions to all of the itemized requests. Like LPL's response to itemized request one, the failure to categorize responsive documents and explain how the exemptions applied to these itemized requests violated the Act. It is difficult to square LPL's representation that on the one hand documents exist that are preliminary in nature, yet on the other hand, there are no additional documents in its possession. To the extent any additional documents exist that are responsive to itemized requests two, three, and four, LPL has failed to meet its burden to demonstrate that the claimed exemptions apply to those additional documents. 3 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant also requested additional records not discussed herein, which LPL provided.

2 After receiving LPL's deficient response, Appellant sent further correspondence asking LPL a series of questions designed to obtain more information about why LPL was denying the request. The parties have argued on appeal whether this additional correspondence amounts to "requests for information" to which an agency is not required to respond. See 00-ORD-76; 04-ORD-080. However, this Office does not consider Appellant's additional correspondence to be "requests for information." Rather, it is apparent that Appellant's subsequent correspondence was an attempt to make LPL remedy its deficient response and explain how the claimed exemptions applied to the requested documents.

3 Appellant requested that this Office review the remaining documents under KRS 61.880(2)(c). However, because LPL failed to meet its burden on the face of its initial response, this Office has sufficient information to find that LPL violated the Act.



 

20-ORD-020

LLM Generated Data

Appellant: Leonel Martinez

Agency: Kentucky State Police (KSP)

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Kentucky State Police (KSP) did not violate the Open Records Act in denying Leonel Martinez's request for records regarding inmates receiving merit status from a Unit Administrator. The denial was based on KRS 197.025(2), which allows correctional facilities to deny an inmate's request unless the record contains a specific reference to that inmate. Martinez's arguments regarding the constitutionality of the policy were deemed outside the scope of an open records appeal.

Cited Opinions

  • 00-ORD-2: O

    This decision recognizes that correctional facilities can deny an inmate's request for records unless the record contains a specific reference to that inmate.

  • 04-ORD-076: F

    This decision supports the application of KRS 197.025(2) in denying requests for records that do not contain a specific reference to the requesting inmate.

  • 08-ORD-187: F

    This decision upholds the authority of correctional facilities to deny an inmate's request unless the record contains a specific reference to that inmate.

  • 14-ORD-235: F

    This decision affirms that correctional facilities can deny an inmate's request unless the record contains a specific reference to that inmate.

  • 15-ORD-088: F

    This decision clarifies that even if a policy applies to a group of inmates, the record must specifically apply to the requesting inmate for access to be granted.

  • 10-ORD-109: F

    This decision establishes that policies and procedures are not the type of records that contain a specific reference to an individual inmate.

  • 17-ORD-054: F

    This decision supports the position that correctional facilities can deny an inmate's request unless the record contains a specific reference to that inmate.

  • 08-ORD-149: O

    This decision clarifies that arguments regarding the constitutionality of a policy are outside the purview of an open records appeal.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron, Attorney General; J. Marcus Jones, Assistant Attorney General 

Open Records Decision 

On December 3, 2019, inmate Leonel Martinez ("Appellant") submitted a Request to Inspect Public Records form to KSP, requesting to inspect any policy issued by the Department of Corrections ("DOC") regarding inmates receiving merit status from a Unit Administrator. On January 6, 2020, KSP denied the request, stating, "[t]he records you request concerning DOC policy and other inmate status on merits by UA Robertson do not contain a specific reference to you and the records are exempt from disclosure to you under KRS 61.878(1)(l) and KRS 197.025(2). 

On January 7, 2020, Appellant appealed, stating that the merit status policy violated inmate's rights under the 14th Amendment of the United States Constitution. On January 15, 2020, KSP responded, stating that a long line of decisions by this Office support the application of KRS 197.025(2) in denying requests for records that do not contain a specific reference to the requesting inmate. On January 27, 2020, Appellant replied, stating that the policy applies to Hispanic inmates and therefore, specifically references him because he is Hispanic. 

KSP properly denied the request pursuant to KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). KRS 197.025(2) provides: 

KRS 61.970 to 61.884 to the contrary notwithstanding, the department shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual.

 

(Emphasis added). This Office has consistently recognized that KRS 197.025(2) expressly authorizes correctional facilities under the jurisdiction of DOC, whether state or local, to deny an inmate's request unless the record contains a specific reference to that inmate. 00-ORD-2; 04-ORD-076; 08-ORD-187; 14-ORD-235. Even if the policy does apply to the group Appellant alleges, the statutory text is clear that the requested record must specifically apply to Appellant for him to gain access to it. 15-ORD-088. 

This Office has also upheld DOC's position that policies and procedures are not the type of records that contain a specific reference to an individual inmate. 10-ORD-109; 17-ORD-054. Regardless of the hardship Appellant believes KRS 197.025(2) imposes, he is expressly precluded from access to records that do not contain a specific reference to him by the mandatory language of the statute. Appellant's arguments regarding the constitutionality of the policy are outside the purview of an open records appeal. See KRS 61.880(2)(a); 08-ORD-149. Accordingly, KSP did not violate the Act in denying the request. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-021

LLM Generated Data

Appellant: Robert Brandon Jones

Agency: School

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The School did not violate the Open Records Act in partially denying Robert Brandon Jones' request for records pertaining to complaints or investigations into him as an assistant volleyball coach. The School properly withheld certain records under the 'preliminary records' exceptions under KRS 61.878(1)(i) and (j). The decision was resolved on the basis of the School carrying its burden in applying these exemptions, and the Office declined to address the application of FERPA in this case. The School's withholding of records was found to be justified based on the ongoing nature of the investigations and the preliminary status of the records.

Cited Opinions

  • 10-ORD-065: O

    The decision is cited as an authority for the School properly withholding records under the 'preliminary records' exceptions under KRS 61.878(1)(i) and (j).

  • 17-ORD-255: O

    The decision is cited as an authority for the School properly withholding records under the 'preliminary records' exceptions under KRS 61.878(1)(i) and (j).


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On November 8, 2019, Robert Brandon Jones ("Appellant") requested from the School, "copies of any and all records... pertaining to any complaints or investigations into Brandon Jones, 1assistant volleyball coach at South Laurel High School." On November 13, 2019, the School denied the request, asserting numerous exemptions. On November 16, 2019, Appellant appealed to this Office. 

Based upon this Office's review under KRS 61.880(2)(c), the responsive records consist of: parent complaints; student complaints; adult witness statements; School employee statements; South Laurel High School Principal Jeremy Kidd's ("Principal Kidd") emails; and an investigation report. The School stated that although it did not renew Appellant's coaching contract, some records were still "preliminary" because investigations into the parent's complaints were still ongoing. The School also stated that some responsive records are educational records exempt under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C § 1232g, and cannot be redacted to protect the identity of students. 

Based on this Office's confidential review of the responsive records, the School properly withheld the parent complaints, the adult witness statements, the investigation report, and Principal Kidd's emails subject to the "preliminary records" exceptions under KRS 61.878(1)(i) and (j). Records that are part of an ongoing investigation of an administrative action, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. 10-ORD-065; 17-ORD-255. A public agency is not required to release records subject to an open records request prior to final disposition of a disciplinary action since "piecemeal disclosure along the path of the decision-making process is not mandatory." 

University of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. App. 2013). 

The School no longer employs Appellant, but these records are nevertheless preliminary under KRS 61.878(1)(i) and (j). In 

Palmer v. Driggers , 60 S.W.3d 591 (Ky. App. 2001), the court found that an employee's resignation from a position with a subsequent decision by the public agency to end the hearings against the employee constituted a final agency action. Id. at 596. However, the School does not concede that its investigation has ended. Appellant was not terminated due to discipline related to issues raised by the parents. Rather, his contract was not renewed. In addition, this Office's confidential review shows that the records also address complaints related to other School employees. The investigation report itself contains interviews of those employees. As such, sufficient evidence exists in the record that these records are "preliminary" as part of a continuing and ongoing investigation. Accordingly, the School did not violate the Act. 

Because this Office finds the School carried its burden in applying the "preliminary" exemptions under KRS 61.878(1)(i) and (j) to these records, this Office finds those exemptions dispositive of this appeal. Having resolved this appeal on this basis, the Office declines the School's invitation to address the application of FERPA. This Office is mindful that preliminary records may lose their exempt status if an agency adopts the contents of those records when taking final action. See 

Univ. of Ky. v. Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader , 579 S.W.3d 858, 862-863 (Ky. App. 2018). But for now, a narrower ground exists to resolve this appeal because the responsive records are preliminary. For that reason, we leave for another day the determination of whether these records are exempt under FERPA. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Appellant requested records pertaining to himself. KRS 61.878(3) permits "a public agency employee . . . to inspect and copy any record including preliminary and other supporting document that relates to him" notwithstanding the exemptions contained in KRS 61.878. Appellant did not argue that KRS 61.878(3) applies to him, but School preemptively argued it did not. Regardless if Appellant could be considered "a public agency employee" at the time of the request, KRS 61.878(3) states, "[a] public agency employee . . . shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency." (emphasis added).



 

20-ORD-021

LLM Generated Data

Appellant: Robert Brandon Jones

Agency: School

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The School properly withheld certain records as preliminary under KRS 61.878(1)(i) and (j) until final action is taken on the matter. The decision finds that the School did not violate the Open Records Act by denying the request for records pertaining to complaints or investigations into Robert Brandon Jones, the assistant volleyball coach at South Laurel High School. The exemptions under KRS 61.878(1)(i) and (j) were found to be dispositive of the appeal. The decision also notes that the School's investigation has not ended, and the records are considered preliminary. The decision leaves unresolved the application of FERPA to the records, as the preliminary exemptions were sufficient to address the appeal.

Cited Opinions

  • 10-ORD-065: O

    The decision is cited to support the School's withholding of records as preliminary under KRS 61.878(1)(i) and (j) until final action is taken on the matter.

  • 17-ORD-255: O

    The decision is cited to support the School's withholding of records as preliminary under KRS 61.878(1)(i) and (j) until final action is taken on the matter.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On November 8, 2019, Robert Brandon Jones ("Appellant") requested from the School, "copies of any and all records... pertaining to any complaints or investigations into Brandon Jones, 1assistant volleyball coach at South Laurel High School." On November 13, 2019, the School denied the request, asserting numerous exemptions. On November 16, 2019, Appellant appealed to this Office. 

Based upon this Office's review under KRS 61.880(2)(c), the responsive records consist of: parent complaints; student complaints; adult witness statements; School employee statements; South Laurel High School Principal Jeremy Kidd's ("Principal Kidd") emails; and an investigation report. The School stated that although it did not renew Appellant's coaching contract, some records were still "preliminary" because investigations into the parent's complaints were still ongoing. The School also stated that some responsive records are educational records exempt under the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C § 1232g, and cannot be redacted to protect the identity of students. 

Based on this Office's confidential review of the responsive records, the School properly withheld the parent complaints, the adult witness statements, the investigation report, and Principal Kidd's emails subject to the "preliminary records" exceptions under KRS 61.878(1)(i) and (j). Records that are part of an ongoing investigation of an administrative action, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. 10-ORD-065; 17-ORD-255. A public agency is not required to release records subject to an open records request prior to final disposition of a disciplinary action since "piecemeal disclosure along the path of the decision-making process is not mandatory." 

University of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. App. 2013). 

The School no longer employs Appellant, but these records are nevertheless preliminary under KRS 61.878(1)(i) and (j). In 

Palmer v. Driggers , 60 S.W.3d 591 (Ky. App. 2001), the court found that an employee's resignation from a position with a subsequent decision by the public agency to end the hearings against the employee constituted a final agency action. Id. at 596. However, the School does not concede that its investigation has ended. Appellant was not terminated due to discipline related to issues raised by the parents. Rather, his contract was not renewed. In addition, this Office's confidential review shows that the records also address complaints related to other School employees. The investigation report itself contains interviews of those employees. As such, sufficient evidence exists in the record that these records are "preliminary" as part of a continuing and ongoing investigation. Accordingly, the School did not violate the Act. 

Because this Office finds the School carried its burden in applying the "preliminary" exemptions under KRS 61.878(1)(i) and (j) to these records, this Office finds those exemptions dispositive of this appeal. Having resolved this appeal on this basis, the Office declines the School's invitation to address the application of FERPA. This Office is mindful that preliminary records may lose their exempt status if an agency adopts the contents of those records when taking final action. See 

Univ. of Ky. v. Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader , 579 S.W.3d 858, 862-863 (Ky. App. 2018). But for now, a narrower ground exists to resolve this appeal because the responsive records are preliminary. For that reason, we leave for another day the determination of whether these records are exempt under FERPA. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Appellant requested records pertaining to himself. KRS 61.878(3) permits "a public agency employee . . . to inspect and copy any record including preliminary and other supporting document that relates to him" notwithstanding the exemptions contained in KRS 61.878. Appellant did not argue that KRS 61.878(3) applies to him, but School preemptively argued it did not. Regardless if Appellant could be considered "a public agency employee" at the time of the request, KRS 61.878(3) states, "[a] public agency employee . . . shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency." (emphasis added).



 

20-ORD-023

LLM Generated Data

Appellant: Glenn Odom

Agency: DOC

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Department of Corrections (DOC) violated the Open Records Act by failing to issue a timely written response to Glenn Odom's request. However, the decision affirms the agency's ultimate disposition of the request. The violation was in the delay of the response, not in the denial of the request. The decision emphasizes that public agencies must have mechanisms in place to ensure timely processing of requests and that the burden of proof is on the complainant to show the existence of requested records. The Attorney General cannot substitute its judgment for that of a public agency in deciding which records are necessary for accountability.

Cited Opinions

  • 02-ORD-165: O

    The decision affirms the agency's ultimate disposition of the request despite finding the initial response untimely.

  • 01-ORD-140: O

    Cited to emphasize that public agencies are required to have mechanisms in place to ensure timely processing of requests.

  • 11-ORD-074: O

    Referenced to explain the burden of proof on the complainant to show the existence of requested records.

  • 01-ORD-36: O

    Stated that the duty is not to conduct an investigation to locate disputed records.

  • 08-ORD-206: O

    Highlighted that the Attorney General cannot substitute its judgment for that of a public agency in deciding which records are necessary for accountability.

  • 12-ORD-231: O

    Referred to in the context of the agency's good faith in responding to requests.

  • 12-ORD-153: O

    Mentioned in relation to the need for proof that the agency failed to use methods to produce requested records.

  • 17-ORD-082: O

    Cited in the absence of proof that the agency failed to use methods to produce records.

  • 19-ORD-054: O

    Emphasized the need for anecdotal evidence or production of responsive records obtained from other sources to question the agency's good faith.

  • 95-ORD-96: O

    Stated that a public agency is required to make a good faith effort to conduct a search for requested records.

  • 18-ORD-164: O

    Referenced in the context of the agency's obligation to make a good faith effort to conduct a search for records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether DOC violated the Act in failing to issue a timely written response upon receipt of Glenn Odom's ("Appellant") December 27, 2019, request for "the grievance and all appeals that I exhausted to Central Office requesting S.O.T.P. class but was denied because I have no sex charge." By letter dated January 3, 2020, Appellant initiated this appeal challenging the inaction of DOC upon receipt of his request. In its response on appeal, DOC provided a copy of its January 17, 2020, response to Appellant's request. In that response, DOC advised the Appellant that no responsive documents were located following its search and there "is no public record maintained by [DOC] responsive to your request." 

On appeal, DOC acknowledged that its response was delayed. The only explanation that DOC offered was that staff was processing "several other large document requests." DOC reiterated that it cannot provide that which it does not have, nor does it have to "prove a negative" in denying a request based on the nonexistence of the records. Based upon the following, this Office finds DOC's initial response was untimely and failed to comply with KRS 197.025(7), but affirms the agency's ultimate disposition of the request. 

KRS 197.025(7) requires DOC to respond within five business upon receiving a request for records. DOC did not issue a written response until January 17, 2020, or 13 business days after the date of the request. DOC's inaction constituted a violation of KRS 197.025(7). A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act." 02-ORD-165, p. 3. DOC, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 01-ORD-140, p. 6. However, DOC cannot provide Appellant with access to nonexistent records. 

The right to inspect records only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot produce that which it does not have 1nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). "[T]he existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable." 11-ORD-074. However, the Appellant has not cited a statute or regulation directing the creation of his requested record and therefore has failed to make a prima facie showing in this case. 

Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231. "Absent proof that [DOC] failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources," the Attorney General has no basis upon which to question its good faith. 12-ORD-153, p. 4; 17-ORD-082; 19-ORD-054. 

Based upon the foregoing, this Office finds that DOC violated KRS 197.025(7) in failing to issue a timely written response upon receipt of Appellant's December 27, 2019 request. However, DOC did not otherwise violate the Act in the ultimate disposition of Appellant's request. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 However, a public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164.



 

20-ORD-023

LLM Generated Data

Appellant: Glenn Odom

Agency: DOC

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Department of Corrections (DOC) violated the Open Records Act by failing to issue a timely written response upon receipt of Glenn Odom's request. However, DOC did not otherwise violate the Act in the ultimate disposition of the request. The decision emphasizes that a public agency cannot ignore its statutory requirements under the Open Records Act and must have mechanisms in place to ensure timely processing of requests. It also clarifies that the right to inspect records only attaches if the records are in the possession of the public agency, and the agency is not required to prove the nonexistence of records without a prima facie showing by the requester.

Cited Opinions

  • 02-ORD-165: O

    The decision is cited to emphasize that a public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act.

  • 01-ORD-140: O

    Referenced to highlight that public agencies are required to have mechanisms in place to ensure the timely receipt and efficient processing of requests.

  • 11-ORD-074: O

    Cited to explain the presumption of record's existence when there is a statute, regulation, or case law directing the creation of the requested record.

  • 01-ORD-36: O

    Referred to clarify that the duty is not to conduct an investigation to locate records whose existence or custody is in dispute.

  • 08-ORD-206: O

    Mentioned to show that the Attorney General cannot substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability.

  • 12-ORD-231: O

    Cited to explain that the Attorney General has no basis to question the good faith of a public agency in responding to records requests without proof of failure to use methods that could reasonably produce the records.

  • 12-ORD-153: O

    Referenced to show that without proof of failure to use methods that could reasonably produce the records requested, the Attorney General cannot question the good faith of the public agency.

  • 17-ORD-082: O

    Mentioned to emphasize that the Attorney General has no basis to question the good faith of a public agency in responding to records requests without proof of failure to use methods that could reasonably produce the records.

  • 19-ORD-054: O

    Cited to show that the Attorney General cannot question the good faith of a public agency in responding to records requests without proof of failure to use methods that could reasonably produce the records requested.

  • 95-ORD-96: O

    Referenced to highlight that a public agency is required to make a good faith effort to conduct a search using methods that could reasonably be expected to produce the records requested.

  • 18-ORD-164: O

    Mentioned to show that a public agency is required to make a good faith effort to conduct a search using methods that could reasonably be expected to produce the records requested.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether DOC violated the Act in failing to issue a timely written response upon receipt of Glenn Odom's ("Appellant") December 27, 2019, request for "the grievance and all appeals that I exhausted to Central Office requesting S.O.T.P. class but was denied because I have no sex charge." By letter dated January 3, 2020, Appellant initiated this appeal challenging the inaction of DOC upon receipt of his request. In its response on appeal, DOC provided a copy of its January 17, 2020, response to Appellant's request. In that response, DOC advised the Appellant that no responsive documents were located following its search and there "is no public record maintained by [DOC] responsive to your request." 

On appeal, DOC acknowledged that its response was delayed. The only explanation that DOC offered was that staff was processing "several other large document requests." DOC reiterated that it cannot provide that which it does not have, nor does it have to "prove a negative" in denying a request based on the nonexistence of the records. Based upon the following, this Office finds DOC's initial response was untimely and failed to comply with KRS 197.025(7), but affirms the agency's ultimate disposition of the request. 

KRS 197.025(7) requires DOC to respond within five business upon receiving a request for records. DOC did not issue a written response until January 17, 2020, or 13 business days after the date of the request. DOC's inaction constituted a violation of KRS 197.025(7). A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act." 02-ORD-165, p. 3. DOC, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 01-ORD-140, p. 6. However, DOC cannot provide Appellant with access to nonexistent records. 

The right to inspect records only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot produce that which it does not have 1nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). "[T]he existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable." 11-ORD-074. However, the Appellant has not cited a statute or regulation directing the creation of his requested record and therefore has failed to make a prima facie showing in this case. 

Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1; 12-ORD-231. "Absent proof that [DOC] failed to use methods which could reasonably be expected to produce the records requested, such as anecdotal evidence suggesting the records' existence or production of responsive records obtained from other sources," the Attorney General has no basis upon which to question its good faith. 12-ORD-153, p. 4; 17-ORD-082; 19-ORD-054. 

Based upon the foregoing, this Office finds that DOC violated KRS 197.025(7) in failing to issue a timely written response upon receipt of Appellant's December 27, 2019 request. However, DOC did not otherwise violate the Act in the ultimate disposition of Appellant's request. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 However, a public agency is required to make "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested[.]'" 95-ORD-96, p. 4 (citation omitted); 18-ORD-164.



 

20-ORD-022

LLM Generated Data

Appellant: Jeff Carpenter

Agency: KSR

AG: Daniel Cameron

AAG: James M. Herrick

Summary

KSR did not violate the Open Records Act in denying Jeff Carpenter's request for a copy of a check, citing reasons related to prison regulations and security concerns. The decision found that the check was considered contraband and exempt from disclosure based on specific statutes and policies. The agency's decision to withhold the record was deemed appropriate in the interest of security. The decision also affirms the broad discretion given to the Commissioner of the Department of Corrections to deny inmates access to records that are deemed security threats.

Cited Opinions

  • 16-ORD-196: O

    The decision cites 16-ORD-196 to support the agency's discretion in determining what constitutes contraband in a prison environment.

  • 07-ORD-252: O

    Cited as an example where love letters from an inmate to a correctional officer were properly denied as contraband.

  • 18-ORD-049: O

    Cited as an example where photographs depicting nudity were properly denied as contraband.

  • 96-ORD-179: O

    The decision cites 96-ORD-179 to explain the broad discretion given to the Commissioner of the Department of Corrections to deny inmates access to records that pose a security threat.

  • 04-ORD-017: O

    Cited to support the agency's decision to withhold the record based on specific statutes regarding contraband and security threats.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSR violated the Open Records Act ("the Act") in its disposition of a December 30, 2019, request by inmate Jeff Carpenter ("Appellant") for a copy of a check "mailed to [him] from Publishers Clearing House ... and supposedly returned to sender on June 4th, 2019." For the reasons that follow, this Office finds no violation of the Act. 

KSR denied Appellant's request on grounds that "inmates are not allowed to have any type of money in their possession," citing Corrections Policy and Procedure ("CPP") 9.6. On appeal, KSR explained that checks are considered "contraband and exempt pursuant to KRS 61.878(1)(1), KRS 520.010(1), [CPP] 9.6, & CPP 16.2." KSR further asserted that the check was "exempt from disclosure pursuant to KRS 61.878(1)(l) and 197.025(1) as a security risk." 

KRS 520.010(1) defines "contraband" as "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, departmental regulation, or posted institutional rule or order." CPP 9.6 II(B) includes among contraband items "[m]oney, unless authorized in writing by an appropriate institutional staff member for a specific inmate," as well as "[a]nything not authorized for retention or receipt by the inmate and not issued to him through regular institutional channels." 1Furthermore, CPP 16.2 II(E)(11) includes as "Prohibited Mail" any mail containing checks. 2

Regarding prison contraband, the Kentucky Court of Appeals has noted that "[the prison] environment has its own peculiar problems, in that the insignificant and unremarkable can, and do, become magnified in importance." 

Commonwealth v. O'Hara , 793 S.W.2d 840, 843 (Ky. App. 1990). In this context, "[t]his Office is not in a position to second guess the Department [of Corrections] regarding its policy and regulation as to what constitutes contraband." 16-ORD-196. See, e.g. , 07-ORD-252 (love letters from inmate to correctional officer properly denied as contraband); 18-ORD-049 (photographs depicting nudity properly denied as contraband). KSR has shown that the check in question here meets the statutory and policy definitions of "contraband." 

As to the security risk posed by Appellant's possession of the check, KRS 197.025(1) provides: 

KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

In a memorandum attached to KSR's response to this appeal, a KSR representative stated that "[a] check can be used to make counterfeit checks and scam others as well, which is a security risk for staff, inmates, and the public." Furthermore, KSR advised that agency counsel had contacted Publishers Clearing House and was informed that the check and accompanying letter were "a scam and ... not a legitimate letter from PCH." KSR asserted that a further security risk would be created by "[a]llowing documents involving a scam to circulate in a prison." 

KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. Under the facts presented, KSR has articulated a credible basis for denying Appellant a copy of the check in the interest of security. Accordingly, this Office declines to substitute its judgment for that of the Department of Corrections. 04-ORD-017. KSR properly withheld the record on the basis of KRS 520.010(1) and KRS 197.025(1). 

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.

Footnotes 

Footnotes

1 See 501 KAR 6:020 § 1, incorporating by reference Kentucky Corrections Policies and Procedures 9.6, available at https://corrections.ky.gov/About/cpp/Documents/09/CPP%209.6.pdf (last accessed Feb. 5, 2020).

2 See 501 KAR 6:020 § 1, incorporating by reference Kentucky Corrections Policies and Procedures 16.2, available at https://corrections.ky.gov/About/cpp/Documents/16/CPP%2016.2%20Inmate%2… (last accessed Feb. 5, 2020).



 

20-ORD-022

LLM Generated Data

Appellant: Jeff Carpenter

Agency: KSR

AG: Daniel Cameron

AAG: James M. Herrick

Summary

KSR did not violate the Open Records Act in denying Jeff Carpenter's request for a copy of a check, which was considered contraband and a security risk within the prison environment. The decision found that KSR had a credible basis for denying access to the check in the interest of security, and therefore, the Open Records Act was not violated. The decision also emphasized the broad discretion given to the Commissioner of the Department of Corrections to deny inmates access to records that pose a security threat.

Cited Opinions

  • 16-ORD-196: O

    The decision cites 16-ORD-196 to support the agency's discretion in determining what constitutes contraband within a prison environment.

  • 07-ORD-252: O

    Cited as an example where love letters from an inmate to a correctional officer were properly denied as contraband.

  • 18-ORD-049: O

    Referenced for the proper denial of photographs depicting nudity as contraband.

  • 96-ORD-179: O

    The decision cites 96-ORD-179 to highlight the broad discretion given to the Commissioner of the Department of Corrections to deny inmates access to records that pose a security threat.

  • 04-ORD-017: O

    Cited to support the agency's decision to withhold the record based on security concerns.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether KSR violated the Open Records Act ("the Act") in its disposition of a December 30, 2019, request by inmate Jeff Carpenter ("Appellant") for a copy of a check "mailed to [him] from Publishers Clearing House ... and supposedly returned to sender on June 4th, 2019." For the reasons that follow, this Office finds no violation of the Act. 

KSR denied Appellant's request on grounds that "inmates are not allowed to have any type of money in their possession," citing Corrections Policy and Procedure ("CPP") 9.6. On appeal, KSR explained that checks are considered "contraband and exempt pursuant to KRS 61.878(1)(1), KRS 520.010(1), [CPP] 9.6, & CPP 16.2." KSR further asserted that the check was "exempt from disclosure pursuant to KRS 61.878(1)(l) and 197.025(1) as a security risk." 

KRS 520.010(1) defines "contraband" as "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, departmental regulation, or posted institutional rule or order." CPP 9.6 II(B) includes among contraband items "[m]oney, unless authorized in writing by an appropriate institutional staff member for a specific inmate," as well as "[a]nything not authorized for retention or receipt by the inmate and not issued to him through regular institutional channels." 1Furthermore, CPP 16.2 II(E)(11) includes as "Prohibited Mail" any mail containing checks. 2 

Regarding prison contraband, the Kentucky Court of Appeals has noted that "[the prison] environment has its own peculiar problems, in that the insignificant and unremarkable can, and do, become magnified in importance." 

Commonwealth v. O'Hara , 793 S.W.2d 840, 843 (Ky. App. 1990). In this context, "[t]his Office is not in a position to second guess the Department [of Corrections] regarding its policy and regulation as to what constitutes contraband." 16-ORD-196. See, e.g. , 07-ORD-252 (love letters from inmate to correctional officer properly denied as contraband); 18-ORD-049 (photographs depicting nudity properly denied as contraband). KSR has shown that the check in question here meets the statutory and policy definitions of "contraband." 

As to the security risk posed by Appellant's possession of the check, KRS 197.025(1) provides: 

KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

 

In a memorandum attached to KSR's response to this appeal, a KSR representative stated that "[a] check can be used to make counterfeit checks and scam others as well, which is a security risk for staff, inmates, and the public." Furthermore, KSR advised that agency counsel had contacted Publishers Clearing House and was informed that the check and accompanying letter were "a scam and ... not a legitimate letter from PCH." KSR asserted that a further security risk would be created by "[a]llowing documents involving a scam to circulate in a prison." 

KRS 197.025(1) affords the Commissioner of the Department of Corrections or his designee "broad, although not unfettered, discretion to deny inmates access to records the disclosure of which, in his view, represents a threat to institutional security." 96-ORD-179. Under the facts presented, KSR has articulated a credible basis for denying Appellant a copy of the check in the interest of security. Accordingly, this Office declines to substitute its judgment for that of the Department of Corrections. 04-ORD-017. KSR properly withheld the record on the basis of KRS 520.010(1) and KRS 197.025(1). 

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.

Footnotes 

Footnotes

1 See 501 KAR 6:020 § 1, incorporating by reference Kentucky Corrections Policies and Procedures 9.6, available at https://corrections.ky.gov/About/cpp/Documents/09/CPP%209.6.pdf (last accessed Feb. 5, 2020).

2 See 501 KAR 6:020 § 1, incorporating by reference Kentucky Corrections Policies and Procedures 16.2, available at https://corrections.ky.gov/About/cpp/Documents/16/CPP%2016.2%20Inmate%2… (last accessed Feb. 5, 2020).



 

20-ORD-025

LLM Generated Data

Appellant: Lawrence Trageser

Agency: KSP

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Kentucky State Police (KSP) properly denied Lawrence Trageser's request for CAD reports as the request was not precise and placed an unreasonable burden on the agency. The appeal did not become moot with the production of redacted CAD reports. Trageser's broadly framed request implicated an incalculable number of reports and audio recordings, making it unreasonable for the agency to produce. Trageser can appeal this decision by initiating action in the appropriate circuit court.

Cited Opinions

  • 11-ORD-034: O

    States that a public agency cannot moot an open records appeal by making partial disclosure.

  • 14-ORD-196: O

    States that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot.

  • 08-ORD-058: O

    Defines what constitutes a precise request under KRS 61.872(3)(b), stating that an open-ended any-and-all-records-that-relate type of request is not considered precise.

  • 13-ORD-077: O

    Quoted in relation to the burden placed on agencies by open-ended requests.

  • 99-ORD-14: O

    Referenced in 13-ORD-077 regarding the burden on agencies from broadly framed requests.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On November 21, 2019, Lawrence Trageser ("Appellant") requested "any and all records reflecting all CAD 1reports created and dispatched by KSP dispatch to ALL Spencer County First Responders for non-emergency and emergency calls, reports or requests for service" for September and October 2019. 

On December 17, 2019, KSP denied the request stating that Appellant failed to precisely describe the records sought, pursuant to KRS 61.872(3)(b). KSP stated that the request "amounts to an unreasonable burden[,]" because the request "would yield several thousand pages of documents, hours of audio, and would cause supervisory employees to cease normal operations in order to conduct review...of these reports and audio." 

On January 20, 2020, Appellant appealed the disposition of the request, stating that he properly narrowed the scope of his request in timeframe. KSP responded by providing Appellant and this Office a flashdrive containing 1,134 pages of responsive CAD reports, redacted of personal addresses and telephone numbers. KSP argued that the appeal was moot with production of these records, but maintained that the initial response did not violate the Act. 

The appeal did not become moot with production of the redacted CAD reports. 40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." However, a public agency "cannot moot an open records appeal by making partial disclosure." 11-ORD-034. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot." 14-ORD-196. 

KSP met its burden of proof and showed that the request was not precise. A person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. . . after he precisely describes the public records which are readily available within the public agency." KRS 61.872(3)(b). A request is not "precise" under KRS 61.872(3)(b) when it is an "open-ended any-and-all-records-that-relate type of request[]." 08-ORD-058. 

KSP located 1,134 pages of responsive CAD reports, but each of these reports reference additional existing records, including: 911 call recordings; KSP Trooper dispatch recordings; Emergency Medical Service reports; and arrest citations. Appellant argued that he limited the scope of his request in regards to timeframe. However, the record shows that the broadly framed request implicated an incalculable number of reports and audio recordings, and it is unclear which, if any, of these additional records Appellant was seeking with his request. "Any-and-all-records-that-relate" requests, such as this, place an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. KRS 61.872(6); see also 13-ORD-077, p. 4 (quoting 99-ORD-14). Accordingly, KSP properly denied the request. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Computer assisted dispatch.



 

20-ORD-024

LLM Generated Data

Appellant: Mary Jasper

Agency: OCJE

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The OCJE violated the Kentucky Open Records Act by failing to make a timely disposition of the requests dated December 9 and 17, 2019. The agency did not violate the Act by failing to provide a list that did not exist, but it did violate the Act by not responding to the requests within the required time frame. The decision found that OCJE failed to make a final disposition of the request within three business days and did not provide a detailed explanation for the delay. The appellant may appeal the decision in the appropriate circuit court.

Cited Opinions

  • 98-ORD-161: O

    The decision is cited to establish that a public agency must make proper provision for uninterrupted processing of open records requests, even in the absence of its records custodian.

  • 99-ORD-98: O

    Cited to support the argument that a public agency cannot provide access to a record that it does not have or that does not exist.

  • 95-ORD-131: O

    Referenced to show that an agency is not required to compile a list of information to satisfy an open records request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Office violated the Kentucky Open Records Act ("the Act") in its disposition of multi-part requests for records dated December 9 and 17, 2019, and January 6, 2020, from Mary Jasper ("Appellant.) For the reasons that follow, this Office finds that OCJE violated the Act by failing to make a timely disposition of Appellant's first two requests. 

Since the filing of this appeal, OCJE has fulfilled Appellant's request dated January 6, 2020, as well as the majority of the requests dated December 9 and 17, 2019. Furthermore, at the time of her December 17, 2020, request, Appellant withdrew some portions of her December 9, 2019, request. This appeal is moot as to those records. 40 KAR 1:030 § 6. 

The only contested issue remaining is Appellant's request for "a list of which employees are currently taking county leased or owned vehicles home with them." Appellant requested this list on both December 9 and December 17, 2019. 

OCJE did not issue a written response to any of Appellant's requests until January 8, 2020, when it responded specifically to the request dated January 6, 2020. That response addressed the two prior requests only in the following terms: 

We anticipate that responding to your remaining requests will require extensive time to locate, compile, and redact such public records; accordingly, we require additional time to do so. Requests for records that do not exist or are not available for production will be denied. The information that is obtainable will require at least until February 1, 2020 to be made available.

KRS 61.880(1) requires a public agency to issue a written response to an open records request within three business days. OCJE violated the Act by failing to respond to Appellant's first two requests within that time. 

Furthermore, the written response must make a final disposition of the request unless the record "is in active use, in storage, or not otherwise available," and the agency gives "a detailed explanation of the cause ... for further delay." KRS 61.872(5). OCJE did not allege that any of the circumstances listed in KRS 61.872(5) applied or give a detailed explanation of the cause "for further delay and the place, time, and earliest date on which the public record [would] be available for inspection." KRS 61.872(5). 

On appeal, OCJE merely asserts that there was "a breakdown of communication among staff due to the holiday season and scheduled employee vacation time." It is the duty of a public agency "to make proper provision for uninterrupted processing of open records requests" in the absence of its records custodian. 98-ORD-161. OCJE violated KRS 61.880(1) by failing to make a final disposition of the request within three business days. 

On January 27, 2020, in response to this appeal, OCJE advised that the requested "list does not currently exist and such records are not compiled in the manner requested." A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. Nor is an agency required to compile a list of information to satisfy an open records request. 95-ORD-131. Accordingly, OCJE did not violate the Act by failing to provide a list that did not exist. Nevertheless, OCJE violated the Act by failing to make a timely disposition of the requests dated December 9 and 17, 2019. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-024

LLM Generated Data

Appellant: Mary Jasper

Agency: OCJE

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The OCJE violated the Kentucky Open Records Act by failing to make a timely disposition of the requests dated December 9 and 17, 2019. The agency did not violate the Act by failing to provide a list that did not exist, but it did violate the Act by not responding to the requests within the required time frame. The decision found that OCJE failed to make a final disposition of the request within three business days and did not provide a detailed explanation for the delay. The appeal regarding the request for a list of employees taking county vehicles home is moot as the list does not exist. The appellant has the right to appeal this decision in the appropriate circuit court.

Cited Opinions

  • 98-ORD-161: O

    The decision is cited to establish that a public agency must make proper provision for uninterrupted processing of open records requests, even in the absence of its records custodian.

  • 99-ORD-98: O

    Cited to support the notion that a public agency cannot provide access to a record that it does not have or that does not exist.

  • 95-ORD-131: O

    Referenced to show that an agency is not required to compile a list of information to satisfy an open records request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Office violated the Kentucky Open Records Act ("the Act") in its disposition of multi-part requests for records dated December 9 and 17, 2019, and January 6, 2020, from Mary Jasper ("Appellant.) For the reasons that follow, this Office finds that OCJE violated the Act by failing to make a timely disposition of Appellant's first two requests. 

Since the filing of this appeal, OCJE has fulfilled Appellant's request dated January 6, 2020, as well as the majority of the requests dated December 9 and 17, 2019. Furthermore, at the time of her December 17, 2020, request, Appellant withdrew some portions of her December 9, 2019, request. This appeal is moot as to those records. 40 KAR 1:030 § 6. 

The only contested issue remaining is Appellant's request for "a list of which employees are currently taking county leased or owned vehicles home with them." Appellant requested this list on both December 9 and December 17, 2019. 

OCJE did not issue a written response to any of Appellant's requests until January 8, 2020, when it responded specifically to the request dated January 6, 2020. That response addressed the two prior requests only in the following terms: 

We anticipate that responding to your remaining requests will require extensive time to locate, compile, and redact such public records; accordingly, we require additional time to do so. Requests for records that do not exist or are not available for production will be denied. The information that is obtainable will require at least until February 1, 2020 to be made available.

 

KRS 61.880(1) requires a public agency to issue a written response to an open records request within three business days. OCJE violated the Act by failing to respond to Appellant's first two requests within that time. 

Furthermore, the written response must make a final disposition of the request unless the record "is in active use, in storage, or not otherwise available," and the agency gives "a detailed explanation of the cause ... for further delay." KRS 61.872(5). OCJE did not allege that any of the circumstances listed in KRS 61.872(5) applied or give a detailed explanation of the cause "for further delay and the place, time, and earliest date on which the public record [would] be available for inspection." KRS 61.872(5). 

On appeal, OCJE merely asserts that there was "a breakdown of communication among staff due to the holiday season and scheduled employee vacation time." It is the duty of a public agency "to make proper provision for uninterrupted processing of open records requests" in the absence of its records custodian. 98-ORD-161. OCJE violated KRS 61.880(1) by failing to make a final disposition of the request within three business days. 

On January 27, 2020, in response to this appeal, OCJE advised that the requested "list does not currently exist and such records are not compiled in the manner requested." A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. Nor is an agency required to compile a list of information to satisfy an open records request. 95-ORD-131. Accordingly, OCJE did not violate the Act by failing to provide a list that did not exist. Nevertheless, OCJE violated the Act by failing to make a timely disposition of the requests dated December 9 and 17, 2019. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-025

LLM Generated Data

Appellant: Lawrence Trageser

Agency: KSP

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The KSP properly denied Lawrence Trageser's request for CAD reports as it was deemed imprecise and placed an unreasonable burden on the agency. The appeal did not become moot with the production of redacted CAD reports. The decision advises that a request must be precise and not open-ended to be considered valid under the law. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court.

Cited Opinions

  • 11-ORD-034: O

    The decision states that unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot.

  • 14-ORD-196: O

    The decision explains that a public agency cannot moot an open records appeal by making partial disclosure.

  • 08-ORD-058: O

    This decision is cited to show that a request is not considered precise under KRS 61.872(3)(b) when it is an open-ended any-and-all-records-that-relate type of request.

  • 13-ORD-077: O

    Referenced for the principle that requests such as 'any-and-all-records-that-relate' place an unreasonable burden on the agency to produce incalculable numbers of widely dispersed and ill-defined public records.

  • 99-ORD-14: O

    Quoted in 13-ORD-077 to support the argument that requests like 'any-and-all-records-that-relate' are unreasonable and can place a burden on the agency.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On November 21, 2019, Lawrence Trageser ("Appellant") requested "any and all records reflecting all CAD 1reports created and dispatched by KSP dispatch to ALL Spencer County First Responders for non-emergency and emergency calls, reports or requests for service" for September and October 2019. 

On December 17, 2019, KSP denied the request stating that Appellant failed to precisely describe the records sought, pursuant to KRS 61.872(3)(b). KSP stated that the request "amounts to an unreasonable burden[,]" because the request "would yield several thousand pages of documents, hours of audio, and would cause supervisory employees to cease normal operations in order to conduct review...of these reports and audio." 

On January 20, 2020, Appellant appealed the disposition of the request, stating that he properly narrowed the scope of his request in timeframe. KSP responded by providing Appellant and this Office a flashdrive containing 1,134 pages of responsive CAD reports, redacted of personal addresses and telephone numbers. KSP argued that the appeal was moot with production of these records, but maintained that the initial response did not violate the Act. 

The appeal did not become moot with production of the redacted CAD reports. 40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." However, a public agency "cannot moot an open records appeal by making partial disclosure." 11-ORD-034. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot." 14-ORD-196. 

KSP met its burden of proof and showed that the request was not precise. A person is entitled to inspect public records "[b]y receiving copies of the public records from the public agency through the mail. . . after he precisely describes the public records which are readily available within the public agency." KRS 61.872(3)(b). A request is not "precise" under KRS 61.872(3)(b) when it is an "open-ended any-and-all-records-that-relate type of request[]." 08-ORD-058. 

KSP located 1,134 pages of responsive CAD reports, but each of these reports reference additional existing records, including: 911 call recordings; KSP Trooper dispatch recordings; Emergency Medical Service reports; and arrest citations. Appellant argued that he limited the scope of his request in regards to timeframe. However, the record shows that the broadly framed request implicated an incalculable number of reports and audio recordings, and it is unclear which, if any, of these additional records Appellant was seeking with his request. "Any-and-all-records-that-relate" requests, such as this, place an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. KRS 61.872(6); see also 13-ORD-077, p. 4 (quoting 99-ORD-14). Accordingly, KSP properly denied the request. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Computer assisted dispatch.



 

20-ORD-026

LLM Generated Data

Appellant: WDRB News reporter Valerie Chinn

Agency: LMPD

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The LMPD improperly redacted the identities of police officer witnesses but properly redacted the identities of police officers suspected of misconduct. The LMPD also properly denied a request for photographs that were nonexistent. Additionally, the LMPD properly withheld certain records created by the investigation as preliminary. However, other public records contained in the investigative file were not properly withheld as preliminary. The decision provides a detailed analysis of the balance between personal privacy and public interest in disclosure of identities in the context of police investigations.

Cited Opinions

  • 12-ORD-227: O

    The decision discusses the balance between personal privacy and public interest in disclosure, specifically regarding the identities of police officers involved in an investigation.

  • 06-ORD-052: O

    Cited for the high public interest justifying disclosure of the identity of a public figure suspected, but not charged, with wrongdoing.

  • 05-ORD-224: O

    Referenced in the decision for evidence questioning actions taken during an investigation and the decision not to prosecute.

  • 02-ORD-112: F

    Cited for the principle that a public agency is not required to create responsive records to satisfy particular open records requests.

  • 15-ORD-202: F

    Referred to for the proper withholding of preliminary records in an investigation file.

  • 19-ORD-217: F

    Cited for the proper withholding of interview transcripts in an investigation file.

  • 16-ORD-106: O

    Discussed for the characterization of certain records in a case file as not preliminary.

  • 06-ORD-268: O

    Referenced for the withholding of records until the investigation is concluded and final action is taken.

  • 18-ORD-059: O

    Noted for the rare instances where an allegation of sexual misconduct may not result in records indicating substantiation, leading to a possible nondisclosure of the identity of the uncharged suspect.

  • OAG 91-35: O

    Referred to for the heightened privacy interest of police officers who were ultimately not charged with any wrongdoing.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 30, 2019, WDRB News reporter Valerie Chinn ("Appellant") submitted three open records requests to LMPD, seeking records related to a Professional Standards Unit ("PSU") investigation into alleged activity at a retirement party purportedly held on LMPD grounds. The first request sought, "the initiating letter and disciplinary action, if any[.]" The second request was for "the entire investigative file..., including... all video/audio interviews, body cam, damage reports of cruisers and any other documents, video or other materials from the investigation[.]" Appellant also requested, "pictures of all officers who were investigated." 

On November 14, 2019, LMPD provided Appellant the PSU Preliminary Findings, Summary, and Conclusions Memorandum ("Memorandum"), the PSU Case Investigative Record ("Investigative Record"), the investigation initiating letter, the investigation closing letter, and the LMPD Rules and Conduct policies in the file. LMPD stated it withheld, "witness names, surveillance video, and titles" pursuant to KRS 61.878(1)(a), because "release of this information is considered an unwarranted invasion of personal privacy." 

LMPD denied WDRB's request for copies of the remaining records in the file as "preliminary" under KRS 61.878(1)(i) and (j). The Investigative Record identified records in the file created during the investigation, including interviews and scheduling letters and emails. It also identified administrative records in the file, including an Ethics Tip-Line Complaint, a building surveillance video, and a Homicide Unit Office Entry Log. LMPD denied the request for photographs of suspect officers as nonexistent, stating that the investigation did not focus on police officers and "instead focused on an incident alleged to have occurred." 

On January 15, 2020, Appellant appealed, stating, "a police organization cannot redact the names of police officer witnesses under the personal privacy exemption[,]" because there is a significant public interest in the investigation of police conduct, outweighing any privacy concern. Appellant also stated that the investigation file is no longer preliminary, because all of the records were the basis for the final agency action. 

LMPD responded to the appeal, stating that LMPD Chief Steve Conrad ("Chief Conrad") based the decision to close the investigation solely on the Memorandum. LMPD provided an affidavit from Chief Conrad affirming that he reached his decision "without reviewing any other records contained within the investigation file." LMPD provided this Office the records given to Appellant. 

LMPD Improperly Redacted the Identities of Police Officer Witnesses But Properly Redacted the Identities of Police Officers Suspected of Misconduct

This Office finds that LMPD improperly redacted the identities of police officer witnesses, but properly redacted the identities of police officers suspected of misconduct from the responsive records. The evidence establishes that this matter was an investigation of alleged misconduct by individual police officers despite LMPD describing the matter as an investigation into an "incident." The record demonstrates that the Professional Standards Unit initiated this investigation based on an ethics complaint that identified specific police officers. 

KRS 61.878(1)(a) exempts disclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In 

Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co ., 826 S.W.2d 324 (Ky. 1992), the Court found that this language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Id . at 327. This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id . at 327-28. 

When weighing the competing interests of personal privacy and the public interest in disclosure, this Office first determines whether the identity of the person "constitutes information of a personal nature." 

Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government , 297 S.W.3d 579, 584 (Ky. App. 2009). Next, this Office must ascertain the strength of the privacy interest and balance that interest against the public interest in disclosure of the person's identity. Id . at 584-85. Kentucky courts have upheld the categorical redaction of information that identifies civilian witnesses and uncharged civilian suspects from investigation records. See e.g. 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76 (Ky. 2013). In Kentucky New Era , the Kentucky Supreme Court affirmed a categorical rule to withhold the names and identities of civilian witnesses appearing in law enforcement records. Id . at 88. However, unlike the private citizens at issue in Kentucky New Era , the witnesses in this case were police officers who were on duty at the time of the alleged incident. These police officer witnesses have not been accused of wrongdoing, and therefore they suffer no risk of reputational harm or public embarrassment for participating in an internal investigation. See id . at 85. When weighing these police officers' privacy interests against the public interest, this Office finds the balance weighs in favor of the public. Therefore, LMPD improperly redacted the names of police officer witnesses. 

However, the balance changes in regards to uncharged police officer suspects. Disclosure of their identities would likely subject the officers to embarrassment and stigma. See id . In this case, the police officers were wrongly accused of inappropriate sexual activity and alcohol use. These officers have a heightened privacy interest because they were ultimately not charged with any wrongdoing. See OAG 91-35; 12-ORD-227. Therefore, this case is distinguishable from 

Palmer v. Driggers , 60 S.W.3d 591 (Ky. App. 2001), because the police officer in that case had been officially charged with misconduct. When weighing the competing interests to personal privacy and the public interest, a finding that the public employee did not engage in misconduct tilts the balance in favor of the employee. However, evidence that demonstrates a public agency failed to adequately investigate the underlying claim, or that the investigation was biased, increases the weight of the public interest. In 06-ORD-052, this Office found a high public interest justifying disclosure of the identity of a public figure suspected, but not charged, with wrongdoing. Id . at pp. 4-5. (citing 05-ORD-224). However, the record in that appeal contained evidence that called into question actions taken during the investigation and the decision not to prosecute. Id . at 5. 

This appeal is distinguishable from 06-ORD-052 because there is no evidence in the record of favoritism or bias in LMPD's investigation. The record shows that LMPD investigated in good faith, interviewed numerous witnesses, and collected statements and evidence. As such, disclosure of the suspects' identities is not necessary for an adequate appraisal of the investigation. See 12-ORD-227, p. 11. 1Accordingly, LMPD did not violate the Act in redacting the identities of police officer suspects. 

LMPD Properly Denied a Request for Photographs that were Nonexistent

No evidence exists in the record that LMPD created or used photographs of police officers in the investigation. A public agency cannot provide a requester with access to a nonexistent record, nor is it required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To obtain relief, the requester must first establish a prima facie case that the requested record exists. Id . However, Appellant produced no affirmative evidence that responsive photographs exist. If Appellant was requesting that LMPD create responsive photographs, the Act does not required a public agency to create responsive records to satisfy particular open records requests. See 02-ORD-112. In the absence of the requisite prima facie showing, or any facts or evidence supporting the existence of responsive photographs in the investigation file, this Office affirms LMPD's disposition of this request. 

LMPD Properly Withheld Records Created by the Investigation

LMPD properly withheld the interview records, scheduling letters, and emails created as part of the investigation, because they are preliminary records and Chief Conrad did not adopt them in reaching a final decision. These records are "preliminary drafts, notes" and "preliminary memoranda in which opinions are expressed" within the meaning of KRS 61.878(1)(i) and (j), 2and they were never adopted as the basis of the agency's final action. See 15-ORD-202. In 19-ORD-217, this Office found that LMPD properly withheld interview transcripts in an investigation file because they were preliminary records, and Chief Conrad did not rely on them in reaching a final decision. Id . at 6. In that decision, as here, the record contained an affidavit provided by Chief Conrad avowing that he relied solely on a summary Memorandum as the basis for final action. Id . This Office "is not in a position to question the sufficiency of [the Memorandum] or substitute its judgment for that of the final decision maker, the record lacks any evidence to refute Chief Conrad's affidavit." Id . Accordingly, LMPD properly withheld these records as preliminary. 

Other Public Records Contained in the Investigative File are not Preliminary

The final category of records contained in the investigative file are public records created separately from the investigation which were used during the course of the investigation. These include surveillance videos and the Homicide Unit Office Entry Log. This Office has found that similar records in a case file "cannot be properly characterized as drafts, notes, or recommendations, nor do they contain any opinions or recommendations even if characterized as memoranda" within the meaning of KRS 61.878(1)(i) and (j). 16-ORD-106, pp. 5-6. Like the Rules and Conduct policies and procedures LMPD disclosed, these records are not preliminary merely because investigators used them during the investigation. Therefore, these records were not properly withheld. Finally, the Ethics Tip-Line Complaint is no longer preliminary because, "any...[record] that spawns an investigation may be withheld until the investigation is concluded and final action taken, including a decision to take no action." 06-ORD-268. Although the Ethics Tip-Line Complaint cannot be withheld as preliminary, if it cannot be redacted to protect the personal privacy of the accused officers, it can properly be withheld pursuant to KRS 61.878(1)(a) as discussed above. 

Either party aggrieved by this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In 18-ORD-059, this Office noted that "[w]e recognize that in some rare instances, an allegation of sexual misconduct may not result in records indicating whether the allegation was substantiated or unsubstantiated. The analysis in that context may weigh in favor of nondisclosure of the identity" of the uncharged suspect. Id ., p. 5, n. 4. The Memorandum relied on by Chief Conrad stated that no evidence was found to support the allegations. As such, the facts in this appeal weigh in favor of nondisclosure of the identities of uncharged police officer suspects.

2 KRS 61.878(1) excludes from disclosure: (i) preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; and (j) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.



 

20-ORD-026

LLM Generated Data

Appellant: WDRB News reporter Valerie Chinn

Agency: LMPD

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The LMPD improperly redacted the identities of police officer witnesses but properly redacted the identities of police officers suspected of misconduct. The LMPD properly denied a request for nonexistent photographs and properly withheld preliminary records created by the investigation. Other public records contained in the investigative file were not properly withheld as preliminary. The decision provides a detailed analysis of the balance between personal privacy and public interest in disclosing identities in the context of police investigations.

Cited Opinions

  • 12-ORD-227: O

    The decision discusses the balance between personal privacy and public interest in disclosing the identities of police officers involved in an investigation.

  • 06-ORD-052: O

    Cited for the high public interest justifying disclosure of the identity of a public figure suspected, but not charged, with wrongdoing.

  • 05-ORD-224: O

    Referred to in the decision regarding evidence questioning actions taken during an investigation and the decision not to prosecute.

  • 02-ORD-112: F

    Discussed in relation to a public agency not being required to create responsive records to satisfy particular open records requests.

  • 15-ORD-202: F

    Referred to for properly withholding preliminary records in an investigation file.

  • 19-ORD-217: F

    Cited for properly withholding interview transcripts in an investigation file as preliminary records.

  • 16-ORD-106: F

    Discussed for records in a case file that cannot be properly characterized as preliminary.

  • 06-ORD-268: O

    Referred to regarding the withholding of records until the investigation is concluded and final action is taken.

  • 18-ORD-059: O

    Noted for the rare instances where an allegation of sexual misconduct may not result in records indicating substantiation, leading to nondisclosure of the identity of the uncharged suspect.

  • OAG 91-35: O

    Referred to for the heightened privacy interest of police officers who were ultimately not charged with any wrongdoing.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 30, 2019, WDRB News reporter Valerie Chinn ("Appellant") submitted three open records requests to LMPD, seeking records related to a Professional Standards Unit ("PSU") investigation into alleged activity at a retirement party purportedly held on LMPD grounds. The first request sought, "the initiating letter and disciplinary action, if any[.]" The second request was for "the entire investigative file..., including... all video/audio interviews, body cam, damage reports of cruisers and any other documents, video or other materials from the investigation[.]" Appellant also requested, "pictures of all officers who were investigated." 

On November 14, 2019, LMPD provided Appellant the PSU Preliminary Findings, Summary, and Conclusions Memorandum ("Memorandum"), the PSU Case Investigative Record ("Investigative Record"), the investigation initiating letter, the investigation closing letter, and the LMPD Rules and Conduct policies in the file. LMPD stated it withheld, "witness names, surveillance video, and titles" pursuant to KRS 61.878(1)(a), because "release of this information is considered an unwarranted invasion of personal privacy." 

LMPD denied WDRB's request for copies of the remaining records in the file as "preliminary" under KRS 61.878(1)(i) and (j). The Investigative Record identified records in the file created during the investigation, including interviews and scheduling letters and emails. It also identified administrative records in the file, including an Ethics Tip-Line Complaint, a building surveillance video, and a Homicide Unit Office Entry Log. LMPD denied the request for photographs of suspect officers as nonexistent, stating that the investigation did not focus on police officers and "instead focused on an incident alleged to have occurred." 

On January 15, 2020, Appellant appealed, stating, "a police organization cannot redact the names of police officer witnesses under the personal privacy exemption[,]" because there is a significant public interest in the investigation of police conduct, outweighing any privacy concern. Appellant also stated that the investigation file is no longer preliminary, because all of the records were the basis for the final agency action. 

LMPD responded to the appeal, stating that LMPD Chief Steve Conrad ("Chief Conrad") based the decision to close the investigation solely on the Memorandum. LMPD provided an affidavit from Chief Conrad affirming that he reached his decision "without reviewing any other records contained within the investigation file." LMPD provided this Office the records given to Appellant. 

LMPD Improperly Redacted the Identities of Police Officer Witnesses But Properly Redacted the Identities of Police Officers Suspected of Misconduct

This Office finds that LMPD improperly redacted the identities of police officer witnesses, but properly redacted the identities of police officers suspected of misconduct from the responsive records. The evidence establishes that this matter was an investigation of alleged misconduct by individual police officers despite LMPD describing the matter as an investigation into an "incident." The record demonstrates that the Professional Standards Unit initiated this investigation based on an ethics complaint that identified specific police officers. 

KRS 61.878(1)(a) exempts disclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In 

Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co ., 826 S.W.2d 324 (Ky. 1992), the Court found that this language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Id . at 327. This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id . at 327-28. 

When weighing the competing interests of personal privacy and the public interest in disclosure, this Office first determines whether the identity of the person "constitutes information of a personal nature." 

Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government , 297 S.W.3d 579, 584 (Ky. App. 2009). Next, this Office must ascertain the strength of the privacy interest and balance that interest against the public interest in disclosure of the person's identity. Id . at 584-85. Kentucky courts have upheld the categorical redaction of information that identifies civilian witnesses and uncharged civilian suspects from investigation records. See e.g. 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76 (Ky. 2013). In Kentucky New Era , the Kentucky Supreme Court affirmed a categorical rule to withhold the names and identities of civilian witnesses appearing in law enforcement records. Id . at 88. However, unlike the private citizens at issue in Kentucky New Era , the witnesses in this case were police officers who were on duty at the time of the alleged incident. These police officer witnesses have not been accused of wrongdoing, and therefore they suffer no risk of reputational harm or public embarrassment for participating in an internal investigation. See id . at 85. When weighing these police officers' privacy interests against the public interest, this Office finds the balance weighs in favor of the public. Therefore, LMPD improperly redacted the names of police officer witnesses. 

However, the balance changes in regards to uncharged police officer suspects. Disclosure of their identities would likely subject the officers to embarrassment and stigma. See id . In this case, the police officers were wrongly accused of inappropriate sexual activity and alcohol use. These officers have a heightened privacy interest because they were ultimately not charged with any wrongdoing. See OAG 91-35; 12-ORD-227. Therefore, this case is distinguishable from 

Palmer v. Driggers , 60 S.W.3d 591 (Ky. App. 2001), because the police officer in that case had been officially charged with misconduct. When weighing the competing interests to personal privacy and the public interest, a finding that the public employee did not engage in misconduct tilts the balance in favor of the employee. However, evidence that demonstrates a public agency failed to adequately investigate the underlying claim, or that the investigation was biased, increases the weight of the public interest. In 06-ORD-052, this Office found a high public interest justifying disclosure of the identity of a public figure suspected, but not charged, with wrongdoing. Id . at pp. 4-5. (citing 05-ORD-224). However, the record in that appeal contained evidence that called into question actions taken during the investigation and the decision not to prosecute. Id . at 5. 

This appeal is distinguishable from 06-ORD-052 because there is no evidence in the record of favoritism or bias in LMPD's investigation. The record shows that LMPD investigated in good faith, interviewed numerous witnesses, and collected statements and evidence. As such, disclosure of the suspects' identities is not necessary for an adequate appraisal of the investigation. See 12-ORD-227, p. 11. 1Accordingly, LMPD did not violate the Act in redacting the identities of police officer suspects. 

LMPD Properly Denied a Request for Photographs that were Nonexistent

No evidence exists in the record that LMPD created or used photographs of police officers in the investigation. A public agency cannot provide a requester with access to a nonexistent record, nor is it required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To obtain relief, the requester must first establish a prima facie case that the requested record exists. Id . However, Appellant produced no affirmative evidence that responsive photographs exist. If Appellant was requesting that LMPD create responsive photographs, the Act does not required a public agency to create responsive records to satisfy particular open records requests. See 02-ORD-112. In the absence of the requisite prima facie showing, or any facts or evidence supporting the existence of responsive photographs in the investigation file, this Office affirms LMPD's disposition of this request. 

LMPD Properly Withheld Records Created by the Investigation

LMPD properly withheld the interview records, scheduling letters, and emails created as part of the investigation, because they are preliminary records and Chief Conrad did not adopt them in reaching a final decision. These records are "preliminary drafts, notes" and "preliminary memoranda in which opinions are expressed" within the meaning of KRS 61.878(1)(i) and (j), 2and they were never adopted as the basis of the agency's final action. See 15-ORD-202. In 19-ORD-217, this Office found that LMPD properly withheld interview transcripts in an investigation file because they were preliminary records, and Chief Conrad did not rely on them in reaching a final decision. Id . at 6. In that decision, as here, the record contained an affidavit provided by Chief Conrad avowing that he relied solely on a summary Memorandum as the basis for final action. Id . This Office "is not in a position to question the sufficiency of [the Memorandum] or substitute its judgment for that of the final decision maker, the record lacks any evidence to refute Chief Conrad's affidavit." Id . Accordingly, LMPD properly withheld these records as preliminary. 

Other Public Records Contained in the Investigative File are not Preliminary

The final category of records contained in the investigative file are public records created separately from the investigation which were used during the course of the investigation. These include surveillance videos and the Homicide Unit Office Entry Log. This Office has found that similar records in a case file "cannot be properly characterized as drafts, notes, or recommendations, nor do they contain any opinions or recommendations even if characterized as memoranda" within the meaning of KRS 61.878(1)(i) and (j). 16-ORD-106, pp. 5-6. Like the Rules and Conduct policies and procedures LMPD disclosed, these records are not preliminary merely because investigators used them during the investigation. Therefore, these records were not properly withheld. Finally, the Ethics Tip-Line Complaint is no longer preliminary because, "any...[record] that spawns an investigation may be withheld until the investigation is concluded and final action taken, including a decision to take no action." 06-ORD-268. Although the Ethics Tip-Line Complaint cannot be withheld as preliminary, if it cannot be redacted to protect the personal privacy of the accused officers, it can properly be withheld pursuant to KRS 61.878(1)(a) as discussed above. 

Either party aggrieved by this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In 18-ORD-059, this Office noted that "[w]e recognize that in some rare instances, an allegation of sexual misconduct may not result in records indicating whether the allegation was substantiated or unsubstantiated. The analysis in that context may weigh in favor of nondisclosure of the identity" of the uncharged suspect. Id ., p. 5, n. 4. The Memorandum relied on by Chief Conrad stated that no evidence was found to support the allegations. As such, the facts in this appeal weigh in favor of nondisclosure of the identities of uncharged police officer suspects.

2 KRS 61.878(1) excludes from disclosure: (i) preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; and (j) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.



 

20-ORD-027

LLM Generated Data

Appellant: Rev. James Harrison

Agency: Lyon County Coroner

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Lyon County Coroner's Office did not violate the Open Records Act in this case. The decision clarifies that there is no violation when a public agency fails to respond to an incorrectly addressed records request. Additionally, it states that the Coroner's Office made a good faith effort to search for the requested records after receiving the request at the correct address.

Cited Opinions

  • 05-ORD-109: F

    This decision explains that there is no violation of the Open Records Act when a public agency fails to respond to an incorrectly addressed records request because the agency cannot respond to a request it did not receive. The decision also emphasizes that the Lyon County Coroner's Office made a good faith effort to search for the requested records after receiving the request at the proper address.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On December 27, 2019, Rev. James Harrison ("Appellant") mailed an open records request to the address of a former Lyon County Coroner, seeking a copy of an autopsy report. Having received no response, Appellant initiated this appeal. 

On February 5, 2020, Lyon County Attorney Lee F. Wilson ("County Attorney") responded to the appeal on behalf of the Coroner's Office. The County Attorney stated that a local funeral home received the request, and the Coroner's Office did not receive it until January 6, 2020. The Coroner's Office responded on the same date, stating that it searched for a responsive record and discovered that the West Kentucky Medical Examiner had not yet completed the autopsy. The Coroner's Office mailed a written response to Appellant explaining the nonexistence of the responsive report, but the postal service returned the letter as "undeliverable." The Coroner's Office attached the written response and the postal return receipts to its response on appeal. 

The Coroner's Office did not issue an untimely written response because Appellant mailed his request to an incorrect address. The record shows that Appellant did not deliver his request to the public agency's custodian of records, as required by KRS 61.872(2). There is no violation of the Act when a public agency fails to respond to an incorrectly addressed records request because a public agency cannot respond to a request it did not receive. 

Regardless, the record shows that, after Appellant's request was received at the proper address, the Coroner's Office engaged in "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]" 05-ORD-109, p. 3. It found no responsive records and so stated. The Coroner's Office thus met its duty under the Act and this Office, therefore, finds no violation. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-027

LLM Generated Data

Appellant: Rev. James Harrison

Agency: Lyon County Coroner

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Lyon County Coroner's Office did not violate the Open Records Act in this case. The appellant's request was initially sent to the wrong address, so the agency did not receive it. Once the request was properly received, the agency made a good faith effort to search for the records but found none. Therefore, there was no violation of the Act.

Cited Opinions

  • 05-ORD-109: F

    The decision explains that there is no violation of the Open Records Act when a public agency fails to respond to an incorrectly addressed records request because the agency cannot respond to a request it did not receive. It also states that the Lyon County Coroner's Office made a good faith effort to search for the requested records but found none, meeting its duty under the Act.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On December 27, 2019, Rev. James Harrison ("Appellant") mailed an open records request to the address of a former Lyon County Coroner, seeking a copy of an autopsy report. Having received no response, Appellant initiated this appeal. 

On February 5, 2020, Lyon County Attorney Lee F. Wilson ("County Attorney") responded to the appeal on behalf of the Coroner's Office. The County Attorney stated that a local funeral home received the request, and the Coroner's Office did not receive it until January 6, 2020. The Coroner's Office responded on the same date, stating that it searched for a responsive record and discovered that the West Kentucky Medical Examiner had not yet completed the autopsy. The Coroner's Office mailed a written response to Appellant explaining the nonexistence of the responsive report, but the postal service returned the letter as "undeliverable." The Coroner's Office attached the written response and the postal return receipts to its response on appeal. 

The Coroner's Office did not issue an untimely written response because Appellant mailed his request to an incorrect address. The record shows that Appellant did not deliver his request to the public agency's custodian of records, as required by KRS 61.872(2). There is no violation of the Act when a public agency fails to respond to an incorrectly addressed records request because a public agency cannot respond to a request it did not receive. 

Regardless, the record shows that, after Appellant's request was received at the proper address, the Coroner's Office engaged in "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested[.]" 05-ORD-109, p. 3. It found no responsive records and so stated. The Coroner's Office thus met its duty under the Act and this Office, therefore, finds no violation. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-028

LLM Generated Data

Appellant: Courtney L. Graham, Esq.

Agency: KDVA

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The KDVA violated the Open Records Act by providing summaries instead of records in response to the requests. Additionally, the response regarding cellphone records was deficient as it failed to clearly state whether responsive records existed. The delay in responding to the request for grievances was deemed reasonable, but the response failed to comply with the Act's requirements. The KDVA must provide the earliest date when the records will be available. The decision allows for either party to appeal by initiating action in the appropriate circuit court.

Cited Opinions

  • 99-ORD-121: F

    The decision states that the purpose of the Open Records Act is to provide access to public records which are not exempt by law, and that summaries are not a substitute for inspecting/copying the underlying record.

  • 19-ORD-045: F

    This decision emphasizes that a summary of information or a partial disclosure is not a substitute for inspecting/copying the underlying record.

  • 07-ORD-158: F

    This decision discusses the requirement for a public agency to make a substantive disposition of a request for public records within three business days, and the need to provide a detailed explanation for any delay in responding to a request.

  • 20-ORD-017: F

    The decision addresses the issue of providing a precise description of public records when requesting copies by mail, and the risks associated with overly broad requests.

  • 96-ORD-101: F

    This decision provides guidance on the specificity required in public records requests to ensure that the custodian can determine the existing records it might encompass.

  • 95-ORD-96: F

    This decision discusses the requirement for agencies to provide the earliest date when records will be available for inspection, as mandated by the Open Records Act.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 25, 2019, Courtney L. Graham, Esq. ("Appellant") submitted a request for copies of four categories of records to KDVA. Appellant requested copies of a former KDVA employee's emails, their text messages and attachments, and their voice messages from their state government issued cellphone. Appellant also made a broadly framed request for, "[f]ormal and informal complaints and grievances" made by any KDVA employee against a specific former employee, "and all records concerning any such investigation[.]" 

On November 7, 2019, KDVA responded to the request for emails by withholding copies of the responsive records, but copying and pasting 19 emails and 6 photographs into its written response. KDVA denied it possessed responsive cellphone records, stating, "if they still exist, [they] are within the AT&T area of responsibility. Until AT&T releases them, I cannot provide these." In response to the request for complaints and grievances, KDVA withheld copies of the records, but summarized the content of three complaints in its written response. 

On December 9, 2019, Appellant appealed stating, "[t]o date, I have not received any records[.]" Appellant stated that KDVA acknowledged the existence of responsive records, but rather than provide copies, the agency "simply summarized ... the responsive records." Appellant stated that KDVA did not cite any exception authorizing it to withhold copies, and told her "the records could only be inspected on-site[.]" Appellant stated that when she insisted on copies, KDVA told her she was waiving her right to inspection. 1

On January 10, 2020, KDVA responded to the appeal, stating the specified employees left employment prior to the request and "[t]heir laptops and phones were to be wiped clean and a search of each one was necessarily done by the Commonwealth Office of Technology (COT)." KVDA told Appellant she should direct her requests to AT&T. KDVA provided as evidence an email from the KDVA Office of the Controller advising that if text messages and voice messages had been cleared by the user, those messages "could only be provided through a subpoena to AT&T." KDVA also provided an email from a COT employee indicating some responsive emails could be located in the employee's outbox. KDVA stated that its search for responsive complaints and grievances is incomplete because it initially misread the request as pertaining to only three employees. KDVA stated that it was now extending its search "to all KDVA," but did not provide the earliest date when records would be available. 

KDVA Violated the Act by Providing Summaries Rather than Records

KDVA violated the Act when it responded to the requests for emails with copied and pasted information, and to the request for complaints and grievances with summaries. All public records shall be open for inspection by any person. KRS 61.872(1). The right to inspect public records carries with it the right to obtain copies. KRS 61.874(1). "The purpose of the [Act] is not to provide information but to provide access to public records which are not exempt by law." 99-ORD-121, p. 13. "Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying." Id. A summary of the information contained therein or a partial disclosure is not a substitute for inspecting/copying the underlying record. 19-ORD-045, p. 6. Accordingly, KDVA violated the Act when it copied and pasted the records into its written response letter, rather than providing copies of the records requested. 

KDVA's Response Regarding Cellphone Records was Deficient

In its response to the request, KDVA failed to affirmatively state whether responsive cellphone records existed and instead stated that "if they still exist, [they] are within the AT&T area of responsibility." However, in its response on appeal, KDVA stated that the employee's state issued computer and cellphone "were to be wiped clean." It is unclear whether the computer and cellphone were, in fact, "wiped." Regardless, KDVA's implied assertion that responsive records no longer existed was deficient and violated the Act. 

Under KRS 61.870(2), a "public record" is one that is "prepared, owned, used, in the possession of or retained by a public agency." When a requester presents a prima facie case that responsive records should exist, the burden is on the agency to explain the adequacy of its search in order to maintain its position that no records exist. See 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n. 3 (Ky. 2013). Here, Appellant requested text messages that her client had sent and received and there is evidence in the record that messages were sent from and received by the device because KDVA produced billing records demonstrating messages were sent to and from the cell phone for which records were requested. Thus, a prima facie case has been established. To carry its burden and explain why it did not possess responsive records that should exist, KDVA should have explained to Appellant, for example, that the cellphones had been "wiped clean" pursuant to appropriate policy or custom and that the records no longer exist. Instead, KDVA suggested to the Appellant that AT&T might possess copies of the records. This implied assertion that it did not possess responsive records was deficient. 

If the computer and cellphone have been "wiped clean" and records no longer exist, KDVA should affirmatively state as much. If the computer and cellphone have not been "wiped clean," and KDVA possesses copies of the records requested, it is KDVA's duty to provide them subject to any appropriate exceptions under the Act. Here, KDVA's initial response to Appellant did not adequately meet the agency's responsibility under the Act to state whether it possessed responsive records. For these reasons, KDVA violated the Act 

KDVA's Delay in Responding to Appellant's Request for Grievances was Reasonable, but KDVA's Response Failed to Comply with KRS 61.872(5)

KRS 61.880(1) requires that a public agency make a substantive disposition of a request for public records within three business days. Any extension of this deadline must provide a detailed explanation of the cause for delay, and a statement containing the "earliest date on which the public record will be available for inspection." KRS 61.872(5). KDVA's written response, indicating that the agency was still in the process of filling the request, but failing to provide Appellant the reason for delay or when the record could be available, did not meet the requirements of KRS 61.872(5). 07-ORD-158. 

Nevertheless, a reasonable delay was justified in this case. It does not appear from the record on appeal that KDVA was attempting to willfully withhold records. Rather, KDVA misunderstood the request for complaints and grievances as being narrower in scope than what the Appellant requested. Once KDVA realized its mistake, it began a more comprehensive search for responsive records. Further, the Act allows a requester to obtain copies by mail, but only "after [she] precisely describes the public records which are readily available within the public agency." KRS 61.872(3)(b). "Any-and-all-records" type requests, like the one here, generally do not meet the standard of precise description for accessing public records by mail. 20-ORD-017. Such a request runs the risk of being, "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. KDVA provided evidence that it is still searching in good faith for responsive grievances and complaints. See 95-ORD-96, p. 4. Therefore, a reasonable delay was justified, but KDVA must provide Appellant the earliest date the records will be available, as required by KRS 61.872(5). 

Either party aggrieved by this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 There is no provision under the Act that states a member of the public can waive their right to inspection of public records. Records may be exempt under KRS 61.878, and requests may be unduly burdensome under KRS 61.872(6), but there is no general waiver provision in KRS 61.870 et seq. 



 

20-ORD-028

LLM Generated Data

Appellant: Courtney L. Graham, Esq.

Agency: KDVA

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The KDVA violated the Open Records Act by providing summaries instead of records in response to the requests. Additionally, the response regarding cellphone records was deficient as the agency failed to affirmatively state whether responsive records existed. While a reasonable delay in responding to the request for grievances was justified, the response failed to comply with the Act's requirements. The agency must provide the earliest date the records will be available. The decision allows for either party to appeal by initiating action in the appropriate circuit court.

Cited Opinions

  • 99-ORD-121: F

    The decision states that the purpose of the Open Records Act is to provide access to public records, not just information, and that summaries are not a substitute for inspecting/copying the underlying record.

  • 19-ORD-045: F

    Cited to support the argument that summaries are not a substitute for providing copies of public records as requested.

  • 07-ORD-158: F

    Referenced for the requirement that a public agency must make a substantive disposition of a request for public records within three business days, providing a detailed explanation for any delay.

  • 20-ORD-017: F

    Cited for the standard of precise description required for accessing public records by mail, which 'any-and-all-records' type requests generally do not meet.

  • 96-ORD-101: F

    Referred to for the risk of overly broad requests being too nonspecific for the custodian to determine what records are encompassed.

  • 95-ORD-96: O

    Mentioned for the requirement that the agency must provide the earliest date the records will be available when there is a delay in responding to a request.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 25, 2019, Courtney L. Graham, Esq. ("Appellant") submitted a request for copies of four categories of records to KDVA. Appellant requested copies of a former KDVA employee's emails, their text messages and attachments, and their voice messages from their state government issued cellphone. Appellant also made a broadly framed request for, "[f]ormal and informal complaints and grievances" made by any KDVA employee against a specific former employee, "and all records concerning any such investigation[.]" 

On November 7, 2019, KDVA responded to the request for emails by withholding copies of the responsive records, but copying and pasting 19 emails and 6 photographs into its written response. KDVA denied it possessed responsive cellphone records, stating, "if they still exist, [they] are within the AT&T area of responsibility. Until AT&T releases them, I cannot provide these." In response to the request for complaints and grievances, KDVA withheld copies of the records, but summarized the content of three complaints in its written response. 

On December 9, 2019, Appellant appealed stating, "[t]o date, I have not received any records[.]" Appellant stated that KDVA acknowledged the existence of responsive records, but rather than provide copies, the agency "simply summarized ... the responsive records." Appellant stated that KDVA did not cite any exception authorizing it to withhold copies, and told her "the records could only be inspected on-site[.]" Appellant stated that when she insisted on copies, KDVA told her she was waiving her right to inspection. 1 

On January 10, 2020, KDVA responded to the appeal, stating the specified employees left employment prior to the request and "[t]heir laptops and phones were to be wiped clean and a search of each one was necessarily done by the Commonwealth Office of Technology (COT)." KVDA told Appellant she should direct her requests to AT&T. KDVA provided as evidence an email from the KDVA Office of the Controller advising that if text messages and voice messages had been cleared by the user, those messages "could only be provided through a subpoena to AT&T." KDVA also provided an email from a COT employee indicating some responsive emails could be located in the employee's outbox. KDVA stated that its search for responsive complaints and grievances is incomplete because it initially misread the request as pertaining to only three employees. KDVA stated that it was now extending its search "to all KDVA," but did not provide the earliest date when records would be available. 

KDVA Violated the Act by Providing Summaries Rather than Records

KDVA violated the Act when it responded to the requests for emails with copied and pasted information, and to the request for complaints and grievances with summaries. All public records shall be open for inspection by any person. KRS 61.872(1). The right to inspect public records carries with it the right to obtain copies. KRS 61.874(1). "The purpose of the [Act] is not to provide information but to provide access to public records which are not exempt by law." 99-ORD-121, p. 13. "Although information may be gleaned from these records, it is the public agency's duty to make public records available for inspection and copying." Id. A summary of the information contained therein or a partial disclosure is not a substitute for inspecting/copying the underlying record. 19-ORD-045, p. 6. Accordingly, KDVA violated the Act when it copied and pasted the records into its written response letter, rather than providing copies of the records requested. 

KDVA's Response Regarding Cellphone Records was Deficient

In its response to the request, KDVA failed to affirmatively state whether responsive cellphone records existed and instead stated that "if they still exist, [they] are within the AT&T area of responsibility." However, in its response on appeal, KDVA stated that the employee's state issued computer and cellphone "were to be wiped clean." It is unclear whether the computer and cellphone were, in fact, "wiped." Regardless, KDVA's implied assertion that responsive records no longer existed was deficient and violated the Act. 

Under KRS 61.870(2), a "public record" is one that is "prepared, owned, used, in the possession of or retained by a public agency." When a requester presents a prima facie case that responsive records should exist, the burden is on the agency to explain the adequacy of its search in order to maintain its position that no records exist. See 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n. 3 (Ky. 2013). Here, Appellant requested text messages that her client had sent and received and there is evidence in the record that messages were sent from and received by the device because KDVA produced billing records demonstrating messages were sent to and from the cell phone for which records were requested. Thus, a prima facie case has been established. To carry its burden and explain why it did not possess responsive records that should exist, KDVA should have explained to Appellant, for example, that the cellphones had been "wiped clean" pursuant to appropriate policy or custom and that the records no longer exist. Instead, KDVA suggested to the Appellant that AT&T might possess copies of the records. This implied assertion that it did not possess responsive records was deficient. 

If the computer and cellphone have been "wiped clean" and records no longer exist, KDVA should affirmatively state as much. If the computer and cellphone have not been "wiped clean," and KDVA possesses copies of the records requested, it is KDVA's duty to provide them subject to any appropriate exceptions under the Act. Here, KDVA's initial response to Appellant did not adequately meet the agency's responsibility under the Act to state whether it possessed responsive records. For these reasons, KDVA violated the Act 

KDVA's Delay in Responding to Appellant's Request for Grievances was Reasonable, but KDVA's Response Failed to Comply with KRS 61.872(5)

KRS 61.880(1) requires that a public agency make a substantive disposition of a request for public records within three business days. Any extension of this deadline must provide a detailed explanation of the cause for delay, and a statement containing the "earliest date on which the public record will be available for inspection." KRS 61.872(5). KDVA's written response, indicating that the agency was still in the process of filling the request, but failing to provide Appellant the reason for delay or when the record could be available, did not meet the requirements of KRS 61.872(5). 07-ORD-158. 

Nevertheless, a reasonable delay was justified in this case. It does not appear from the record on appeal that KDVA was attempting to willfully withhold records. Rather, KDVA misunderstood the request for complaints and grievances as being narrower in scope than what the Appellant requested. Once KDVA realized its mistake, it began a more comprehensive search for responsive records. Further, the Act allows a requester to obtain copies by mail, but only "after [she] precisely describes the public records which are readily available within the public agency." KRS 61.872(3)(b). "Any-and-all-records" type requests, like the one here, generally do not meet the standard of precise description for accessing public records by mail. 20-ORD-017. Such a request runs the risk of being, "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. KDVA provided evidence that it is still searching in good faith for responsive grievances and complaints. See 95-ORD-96, p. 4. Therefore, a reasonable delay was justified, but KDVA must provide Appellant the earliest date the records will be available, as required by KRS 61.872(5). 

Either party aggrieved by this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 There is no provision under the Act that states a member of the public can waive their right to inspection of public records. Records may be exempt under KRS 61.878, and requests may be unduly burdensome under KRS 61.872(6), but there is no general waiver provision in KRS 61.870 et seq. 



 

20-ORD-030

LLM Generated Data

Appellant: Vincent F. Heuser, Jr., Esq.

Agency: Louisville Metro Human Relations Commission

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Louisville Metro Human Relations Commission was found not to have violated the Open Records Act. The Commission's initial response was untimely, but the delay was justified under KRS 61.872(5) due to the need to search email archives. The Commission properly denied requests that were not precise and placed an unreasonable burden on the agency. The Commission met its burden of proof in denying requests that would have imposed an unreasonable burden due to the volume of records and confidentiality provisions. The decision can be appealed in the appropriate circuit court.

Cited Opinions

  • 93-ORD-125: O

    The decision is cited to emphasize the importance of the procedural requirements of the Open Records Act, specifically the requirement for a written response within three business days.

  • 02-ORD-217: O

    Cited to explain the justification for the delay in providing records under KRS 61.872(5) and the need for a detailed explanation for further delay.

  • 98-ORD-17: F

    Referenced to support the denial of a request that was not precise and placed an unreasonable burden on the agency.

  • 08-ORD-058: O

    Cited to show that open-ended requests for all documents are not considered precise under KRS 61.872(3)(b).

  • 99-ORD-14: O

    Referred to for the principle that requests for all documents without specific descriptions can place an unreasonable burden on the agency.

  • 96-ORD-69: O

    Used to support the idea that requests involving numerous records with confidential information can constitute an unreasonable burden on the agency.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 28, 2019, the Louisville Metro Human Relations Commission ("Commission") received 10 requests for copies of groups of records from Vincent F. Heuser, Jr., Esq. ("Appellant"). Request 1 was for copies of all written and email correspondences of past and present Commission members, from 2015 to present, regarding a number of issues. Request 4 sought "[a]ll documents" from seven public events hosted by different organizations from 2013 through 2017. Request 6 sought "[a]ll documents mentioning 2013 KY H.B. 279" from 2013 through 2014. Requests 7 through 10 sought all documents relating to Commission cases regarding discrimination "on the grounds of religion, sexual orientation, gender identity, or sex[.]" 1 

On November 8, 2019, Louisville Metro Government ("LMG") responded on behalf of the Commission. It acknowledged that the response was untimely, but explained that LMG was experiencing technical issues with email that impeded its ability to retrieve requests. The Commission delayed providing records, stating generally that it needed "additional time to gather and review" responsive records, but advised Appellant to "expect a response to your request on or before Friday, January 31, 20[20] close of business." On November 27, 2019, Appellant appealed the untimely response and argued that the Commission had improperly invoked KRS 61.872(5) to delay its response. 

On November 19, 2019, this Office requested additional documentation regarding the delay, per KRS 61.880(2)(c). The Commission responded, explaining that the delay was necessary because requests 1 and 6 implicated emails of present and past members located in electronic archives. The Commission stated that it was necessary to have LMG's Information Technology ("IT") department search the email archives, and the date offered for inspection was based on their estimate of the time it would take IT to complete the task. On February 13, 2020, the Commission described how it searched for records responsive to requests 1 and 6, and stated that it provided Appellant all existing responsive records. 

The Commission denied some requests as unreasonably burdensome. The Commission stated that request 4 was improperly framed, seeking "all documents" from events spanning from 2013 through 2017 without reasonably describing a specific record. The Commission stated that the request would require a review of every existing record to determine if it "may have come from those events." The Commission stated that requests 7 through 10 were voluminous requests identical to those made in a prior appeal, 2and it incorporated its prior response. The Commission identified 2,153 discrimination case files from 1999 to present, each containing responsive records required to be kept confidential under KRS Chapter 344. The Commission stated that provisions of KRS Chapter 344 apply differently to each record, requiring its three employees to review every record in each case file to separate the exempt and non-exempt material. 

The Commission's Initial Response was Untimely

The Commission concedes that its initial written response was untimely under KRS 61.880(1), which provides, in relevant part, that upon receipt of a request, a public agency "shall determine within three (3) [business] days ... whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." The Attorney General has consistently recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125. Thus, a written response was required within three business days. 

The Commission's Delay was Justified Under KRS 61.872(5)

The Commission delayed Appellant's access to records responsive to requests 1 and 6, stating that additional time was needed to gather and review records. KRS 61.872(5) provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

 

(emphasis added). The Commission's initial written response failed to provide a detailed explanation, because it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request." 02-ORD-217. The Commission corrected the error during the appeal by explaining in detail the need for additional time to search email archives. Given the broad scope of the requests, the mixture of exempt and nonexempt records, and the difficulties in locating and retrieving records, this Office finds that the delay was reasonable under the circumstances. Further, the record shows that the Commission continued to search in good faith for records responsive to requests 1 and 6. 3Accordingly, this Office finds no violation. 

The Commission Met its Burden of Proof in Denying Request 4

KRS 61.872(3)(b) requires a public agency to mail copies of records only "after [the requester] precisely describes the public records which are readily available within the public agency." A description is precise "if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted). "[O]pen-ended any-and-all-records-that-relate type of request(s)," such as the one made here, are not "precise" within the meaning of KRS 61.872(3)(b). See 08-ORD-058. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. 99-ORD-14. Further, the request failed to describe an existing record in the Commission's possession, requiring the Commission to review all records to locate any document remotely related to the public presentations the Appellant listed. Accordingly, the request was properly denied. 

The Commission Met its Burden of Proof in Denying Requests 7 through 10

The Commission provided clear and convincing evidence to support its claim that honoring requests 7 through 10 created an unreasonable burden, as required by KRS 61.872(6). To meet its burden of proof for denying a request for causing an unreasonable burden an "agency must show the existence of the unreasonable burden 'by clear and convincing evidence.'" 

Commonwealth v. Chestnut , 205 S.W.3d 655, 664 (Ky. 2008). The public agency must support its claim with facts and evidence, such as the volume of responsive records, the difficulty in locating or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. 

The record shows that Appellant's requests implicated 2,153 discrimination case files, each case file consisting of boxes of records, with each record protected under confidentiality provisions of KRS Chapter 344. To respond to the requests, the Commission would have to manually review every record within each case file, ascertain the stage of the proceedings, and apply the relevant provisions of KRS Chapter 344 to each record. As in 96-ORD-69, "[w]here a request for records involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation ... constitutes an unreasonable burden upon an agency within the meaning of KRS 61.872(6)." Accordingly, the Commission met its burden of proof in denying requests 7 through 10. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The Commission stated that no records exist responsive to requests 2, 3, and 5, and Appellant does not appeal that disposition.

2 The Commission and Appellant were the parties to decision 20-ORD-008. That appeal related to 21 requests for groups of records from discrimination case files.

3 A public agency is required to make "a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 4 (citation omitted). The Commission appears to have used methods that would produce all existing responsive emails. Absent proof that the Commission failed to conduct a reasonable search expected to produce the records requested, this Office has no basis upon which to question its good faith search.



 

20-ORD-029

LLM Generated Data

Appellant: Leonel Martinez

Agency: WKCC

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

WKCC properly withheld the responsive logbook requested by Leonel Martinez under KRS 197.025(1) as it was deemed to constitute a threat to security. The decision found that WKCC provided a sufficient explanation of the security-related risks that the release of the logbook would create, and that the logbook falls under the category of institutional security records exempt from disclosure. The decision also emphasized WKCC's discretion in security matters and declined to substitute its judgment for that of DOC. Martinez's appeal was deemed not moot despite partial disclosure of the logbook. The decision concluded that WKCC's denial of the request was proper under KRS 197.025(1).

Cited Opinions

  • 96-ORD-204: O

    Cited for the proposition that KRS 197.025(1) vests the commissioner with broad discretion to deny inmates access to records if the disclosure is deemed to constitute a threat to security.

  • 96-ORD-179: O

    Cited for the principle that WKCC must provide an explanation as to how release of requested records would constitute a threat to the institution or institutional staff or inmates.

  • 04-ORD-180: O

    Cited for finding entry/exit logs, daily rosters, call-in logs, and time and attendance records for security staff exempt under the Open Records Act.

  • 08-ORD-148: O

    Cited for finding duty watch logs exempt under the Open Records Act.

  • 09-ORD-047: O

    Cited for finding security activity logs exempt under the Open Records Act.

  • 04-ORD-017: O

    Cited for the general principle of declining to substitute judgment for that of DOC regarding security matters.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

Leonel Martinez ("Appellant") appeals WKCC's denial of his November 20, 2019 request for a "copy of the search log include [sic], supervisor who issued the order, 11-7-19." On November 21, 2019, WKCC responded to the request stating, "[t]he department has determined that the disclosure of the institutional search log would constitute a threat to the institution and cannot be provided pursuant to KRS 197.025(1), KRS 61.878(1)(l)." On December 9, 2019, Appellant appealed, stating that his request does not constitute, "any threat to any institution." WKCC responded, citing decisions of this Office deferring to the Department of Corrections ("DOC") on matters relating to KRS 197.025(1). 

On appeal, WKCC states that Appellant's request implicated an institutional search logbook that contains, "count procedures, multiple inmate searches with the results, and inmate movement within the institution." WKCC stated that the responsive logbook identifies seven other inmates randomly searched on the same date, and the WKCC Deputy Warden of Security confirmed security related reasons for withholding those identities. WKCC provided Appellant a copy of the responsive logbook entry with identities of other inmates redacted, and asked that this Office find the appeal moot under 40 KAR 1:030 § 6. However, partial disclosure of a requested record does not make the requested document "available" to render the appeal moot under 40 KAR 1:030 § 6. Therefore, this appeal is not moot. 

Nevertheless, WKCC properly withheld the responsive logbook. KRS 197.025(1) provides: 

KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2. 

This Office recognizes that KRS 197.025(1) "vests the commissioner with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3. As such, the Act requires that WKCC provide a brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. On appeal, WKCC satisfied this burden of proof by explaining the security related risks that release of the logbook would create. Further, the logbook in this case is analogous to other types of institutional security records that this Office has found exempt under the Act. See, e.g. , 04-ORD-180 (finding exempt under the act entry/exit logs, daily rosters, call-in logs, and time and attendance records for security staff); 08-ORD-148 (finding duty watch logs exempt); 09-ORD-047 (finding security activity logs exempt). This Office has declined to substitute its judgment for that of DOC regarding security matters, and will not do so here. See, e .g., 04-ORD-017. Accordingly, WKCC properly relied upon KRS 197.025(1) to deny the request for the institutional search logbook. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-030

LLM Generated Data

Appellant: Vincent F. Heuser, Jr., Esq.

Agency: Louisville Metro Human Relations Commission

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The Louisville Metro Human Relations Commission partially violated the Open Records Act by providing an untimely initial response to the requests. However, the delay in providing access to certain records was justified under KRS 61.872(5) due to the need for additional time to search and review the records. The Commission properly denied requests that were not precise and placed an unreasonable burden on the agency. The Commission also met its burden of proof in denying requests that would have created an unreasonable burden due to the volume of records and the need to review each record for confidentiality. The decision allows for an appeal to be initiated in the appropriate circuit court.

Cited Opinions

  • 93-ORD-125: O

    The decision is cited to emphasize the importance of the procedural requirements of the Open Records Act, specifically the requirement of providing a written response within three business days.

  • 02-ORD-217: O

    The decision is cited to explain the justification for a delay in providing access to records under KRS 61.872(5) due to the need for additional time to search for and review records.

  • 98-ORD-17: F

    The decision is cited to support the denial of a request that was not precise and placed an unreasonable burden on the agency to produce records.

  • 08-ORD-058: O

    The decision is cited to show that open-ended requests for all documents without specific descriptions are not considered precise under KRS 61.872(3)(b).

  • 99-ORD-14: O

    The decision is cited to support the denial of a request that failed to describe an existing record in the agency's possession, requiring a review of all records to locate any relevant documents.

  • 96-ORD-69: O

    The decision is cited to show that requests involving numerous records with confidential information that is commingled with releasable information can constitute an unreasonable burden on an agency.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 28, 2019, the Louisville Metro Human Relations Commission ("Commission") received 10 requests for copies of groups of records from Vincent F. Heuser, Jr., Esq. ("Appellant"). Request 1 was for copies of all written and email correspondences of past and present Commission members, from 2015 to present, regarding a number of issues. Request 4 sought "[a]ll documents" from seven public events hosted by different organizations from 2013 through 2017. Request 6 sought "[a]ll documents mentioning 2013 KY H.B. 279" from 2013 through 2014. Requests 7 through 10 sought all documents relating to Commission cases regarding discrimination "on the grounds of religion, sexual orientation, gender identity, or sex[.]" 1

On November 8, 2019, Louisville Metro Government ("LMG") responded on behalf of the Commission. It acknowledged that the response was untimely, but explained that LMG was experiencing technical issues with email that impeded its ability to retrieve requests. The Commission delayed providing records, stating generally that it needed "additional time to gather and review" responsive records, but advised Appellant to "expect a response to your request on or before Friday, January 31, 20[20] close of business." On November 27, 2019, Appellant appealed the untimely response and argued that the Commission had improperly invoked KRS 61.872(5) to delay its response. 

On November 19, 2019, this Office requested additional documentation regarding the delay, per KRS 61.880(2)(c). The Commission responded, explaining that the delay was necessary because requests 1 and 6 implicated emails of present and past members located in electronic archives. The Commission stated that it was necessary to have LMG's Information Technology ("IT") department search the email archives, and the date offered for inspection was based on their estimate of the time it would take IT to complete the task. On February 13, 2020, the Commission described how it searched for records responsive to requests 1 and 6, and stated that it provided Appellant all existing responsive records. 

The Commission denied some requests as unreasonably burdensome. The Commission stated that request 4 was improperly framed, seeking "all documents" from events spanning from 2013 through 2017 without reasonably describing a specific record. The Commission stated that the request would require a review of every existing record to determine if it "may have come from those events." The Commission stated that requests 7 through 10 were voluminous requests identical to those made in a prior appeal, 2and it incorporated its prior response. The Commission identified 2,153 discrimination case files from 1999 to present, each containing responsive records required to be kept confidential under KRS Chapter 344. The Commission stated that provisions of KRS Chapter 344 apply differently to each record, requiring its three employees to review every record in each case file to separate the exempt and non-exempt material. 

The Commission's Initial Response was Untimely

The Commission concedes that its initial written response was untimely under KRS 61.880(1), which provides, in relevant part, that upon receipt of a request, a public agency "shall determine within three (3) [business] days ... whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." The Attorney General has consistently recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125. Thus, a written response was required within three business days. 

The Commission's Delay was Justified Under KRS 61.872(5)

The Commission delayed Appellant's access to records responsive to requests 1 and 6, stating that additional time was needed to gather and review records. KRS 61.872(5) provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

(emphasis added). The Commission's initial written response failed to provide a detailed explanation, because it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request." 02-ORD-217. The Commission corrected the error during the appeal by explaining in detail the need for additional time to search email archives. Given the broad scope of the requests, the mixture of exempt and nonexempt records, and the difficulties in locating and retrieving records, this Office finds that the delay was reasonable under the circumstances. Further, the record shows that the Commission continued to search in good faith for records responsive to requests 1 and 6. 3Accordingly, this Office finds no violation. 

The Commission Met its Burden of Proof in Denying Request 4

KRS 61.872(3)(b) requires a public agency to mail copies of records only "after [the requester] precisely describes the public records which are readily available within the public agency." A description is precise "if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted). "[O]pen-ended any-and-all-records-that-relate type of request(s)," such as the one made here, are not "precise" within the meaning of KRS 61.872(3)(b). See 08-ORD-058. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. 99-ORD-14. Further, the request failed to describe an existing record in the Commission's possession, requiring the Commission to review all records to locate any document remotely related to the public presentations the Appellant listed. Accordingly, the request was properly denied. 

The Commission Met its Burden of Proof in Denying Requests 7 through 10

The Commission provided clear and convincing evidence to support its claim that honoring requests 7 through 10 created an unreasonable burden, as required by KRS 61.872(6). To meet its burden of proof for denying a request for causing an unreasonable burden an "agency must show the existence of the unreasonable burden 'by clear and convincing evidence.'" 

Commonwealth v. Chestnut , 205 S.W.3d 655, 664 (Ky. 2008). The public agency must support its claim with facts and evidence, such as the volume of responsive records, the difficulty in locating or accessing the records, the amount of time that complying with the request would require, or any other specific and relevant facts indicating that compliance with the request would actually impose an unreasonable burden. 

The record shows that Appellant's requests implicated 2,153 discrimination case files, each case file consisting of boxes of records, with each record protected under confidentiality provisions of KRS Chapter 344. To respond to the requests, the Commission would have to manually review every record within each case file, ascertain the stage of the proceedings, and apply the relevant provisions of KRS Chapter 344 to each record. As in 96-ORD-69, "[w]here a request for records involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation ... constitutes an unreasonable burden upon an agency within the meaning of KRS 61.872(6)." Accordingly, the Commission met its burden of proof in denying requests 7 through 10. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The Commission stated that no records exist responsive to requests 2, 3, and 5, and Appellant does not appeal that disposition.

2 The Commission and Appellant were the parties to decision 20-ORD-008. That appeal related to 21 requests for groups of records from discrimination case files.

3 A public agency is required to make "a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 4 (citation omitted). The Commission appears to have used methods that would produce all existing responsive emails. Absent proof that the Commission failed to conduct a reasonable search expected to produce the records requested, this Office has no basis upon which to question its good faith search.



 

20-ORD-029

LLM Generated Data

Appellant: Leonel Martinez

Agency: WKCC

AG: Daniel J. Cameron

AAG: J. Marcus Jones

Summary

The WKCC properly withheld the responsive logbook requested by Leonel Martinez under KRS 197.025(1) as it was deemed to constitute a threat to security. The decision states that WKCC provided a brief explanation of how the release of the logbook would create security-related risks, satisfying the burden of proof. The decision cites previous cases where similar security records were found to be exempt under the Open Records Act, indicating a consistent approach in such matters. The appeal is not moot despite partial disclosure of the requested record. The decision also notes that WKCC properly relied on KRS 197.025(1) to deny the request for the institutional search logbook.

Cited Opinions

  • 96-ORD-204: O

    Cited to explain the broad discretion given to the commissioner of the department to deny access to records if deemed to constitute a threat to security.

  • 96-ORD-179: O

    Cited to establish that the commissioner has broad discretion to deny inmates access to records.

  • 04-ORD-180: O

    Cited as an example of exempt security records under the Open Records Act.

  • 08-ORD-148: O

    Cited as an example of exempt duty watch logs under the Open Records Act.

  • 09-ORD-047: O

    Cited as an example of exempt security activity logs under the Open Records Act.

  • 04-ORD-017: O

    Cited to show that the Office has declined to substitute its judgment for that of the Department of Corrections regarding security matters.


 

Source Opinion

Opinion 

Opinion By: Daniel J. Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

Leonel Martinez ("Appellant") appeals WKCC's denial of his November 20, 2019 request for a "copy of the search log include [sic], supervisor who issued the order, 11-7-19." On November 21, 2019, WKCC responded to the request stating, "[t]he department has determined that the disclosure of the institutional search log would constitute a threat to the institution and cannot be provided pursuant to KRS 197.025(1), KRS 61.878(1)(l)." On December 9, 2019, Appellant appealed, stating that his request does not constitute, "any threat to any institution." WKCC responded, citing decisions of this Office deferring to the Department of Corrections ("DOC") on matters relating to KRS 197.025(1). 

On appeal, WKCC states that Appellant's request implicated an institutional search logbook that contains, "count procedures, multiple inmate searches with the results, and inmate movement within the institution." WKCC stated that the responsive logbook identifies seven other inmates randomly searched on the same date, and the WKCC Deputy Warden of Security confirmed security related reasons for withholding those identities. WKCC provided Appellant a copy of the responsive logbook entry with identities of other inmates redacted, and asked that this Office find the appeal moot under 40 KAR 1:030 § 6. However, partial disclosure of a requested record does not make the requested document "available" to render the appeal moot under 40 KAR 1:030 § 6. Therefore, this appeal is not moot. 

Nevertheless, WKCC properly withheld the responsive logbook. KRS 197.025(1) provides: 

KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

 

Application of this provision "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2. 

This Office recognizes that KRS 197.025(1) "vests the commissioner with broad, although not unfettered, discretion to deny inmates access to records." 96-ORD-179, p. 3. As such, the Act requires that WKCC provide a brief explanation as to how release of the requested records would constitute a threat to the institution or institutional staff or inmates. On appeal, WKCC satisfied this burden of proof by explaining the security related risks that release of the logbook would create. Further, the logbook in this case is analogous to other types of institutional security records that this Office has found exempt under the Act. See, e.g. , 04-ORD-180 (finding exempt under the act entry/exit logs, daily rosters, call-in logs, and time and attendance records for security staff); 08-ORD-148 (finding duty watch logs exempt); 09-ORD-047 (finding security activity logs exempt). This Office has declined to substitute its judgment for that of DOC regarding security matters, and will not do so here. See, e .g., 04-ORD-017. Accordingly, WKCC properly relied upon KRS 197.025(1) to deny the request for the institutional search logbook. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-031

LLM Generated Data

Appellant: Tim Sullivan

Agency: University

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The University did not violate the Act in denying Tim Sullivan's request for records related to a specific student and a football player. The decision was based on the application of FERPA, which prohibits the disclosure of education records directly related to a student. The University's refusal to confirm or deny the existence of responsive records was justified under FERPA and the Act. The decision affirms the University's denial of the request.

Cited Opinions

  • 18-ORD-168: O

    The decision in this case is cited extensively to support the conclusion that FERPA applies and prohibits the disclosure of education records related to a specific student.

  • 08-ORD-052: O

    Cited to support the argument that FERPA extends to records concerning student athletes.

  • 12-ORD-220: O

    Cited to argue that redaction of education records can sometimes be futile and that FERPA prohibits disclosure of records if the requester knows the identity of the student.

  • 20-ORD-001: O

    Referenced to show that FERPA prohibits the release of education records when personally identifiable information is linkable to a specific student.

  • 01-ORD-38: O

    Cited to explain the obligations of a public agency when denying access to public records based on nonexistence of records.

  • 02-ORD-144: O

    Cited to support the argument that confirming or denying the existence of responsive records would constitute a disclosure of personally identifiable information.

  • 13-ORD-127: O

    Analogous case cited to affirm the University's denial of the request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the University violated the Act in denying Courier-Journal reporter Tim Sullivan's ("Appellant") September 19, 2019, request for a copy of the following: 

1) Any and all correspondence received by [Athletic Director Mitch] Barnhart from [Heather] Kirk since [January] 1, 2018, and any response he or any other University of Kentucky staff or attorneys have provided. 

2) Any correspondence, complaints, memoranda or internal reports concerning the conduct of University of Kentucky football player Kash Daniel since his enrollment at the [U]niversity.

In addition to his request, Appellant explained that he was "in possession of an e-mail ostensibly sent by Heather Kirk to [A]thletics [D]irector Mitch Barnhart on Thursday, Sep. 19" and stated that he wanted "to verify its authenticity and obtain a copy of any response Mr. Barnhart provides." 

In accordance with KRS 61.880(1), the Official Records Custodian issued the following written response on behalf of the University within three working days of receipt: 

To the extent the University has the records you seek, the records are exempt under the personal privacy exemption KRS 61.878(1)(a) as well as the federal law exemption KRS 61.878(1)(k) and (l), and their disclosure is prohibited by the Commonwealth Constitution. First, because the records directly relate to a student, they are education records under the federal Family Educational Rights and Privacy Act [("FERPA")]. Since the University had reason to believe you know the identity of the student, federal regulations prohibit the disclosure of education records even with redactions. Second, all of the records fall within the statutory personal privacy exemption. Third, all of the records are protected by the state constitutional right of privacy and, thus, the Commonwealth Constitution prohibits their disclosure. Fourth, all of the records are protected by the federal constitutional right of privacy and, thus, fall within the federal law exemption.

This appeal followed. 

First, Appellant claimed the University's refusal to confirm or deny whether it possessed any responsive documents violated KRS 61.880(1). Second, Appellant disputed the University's position "that the requested record is an 'education record' under FERPA simply because it relates to a student." Appellant "had reason to believe" the subject e-mail "does not concern a student's educational record in any way, and therefore should not be considered an education record." Third, Appellant challenged the University's failure to cite a statutory exception, as required by KRS 61.880(1), or any case law in support of its "overbroad claims of constitutional privacy interests." 1In summary, Appellant complained the University's "overbroad objections have prevented me from even learning if responsive records exist and, if so," further prevented him from learning their content (even with redactions). 

In response, the University first reiterated that it had reason to believe -- as the request plainly confirmed -- the Courier-Journal "already knew the identity of the student (Daniel) whom any responsive records might concern, and as such, the privacy problems implicated by [its] request could not be cured by redaction." The University maintained that FERPA prohibits disclosure of the records in their entirety, but even if FERPA did not apply, the records would still be protected from disclosure pursuant to KRS 61.878(1)(a), (k), and (l). In this particular case, the University argued, "identifying or confirming the existence of responsive records would be tantamount to disclosing information about Daniel in which he clearly has a legally-protected privacy interest." 

Based upon the following, this Office finds that FERPA is controlling on the facts presented. The records in dispute are "education records" within the meaning of 20 U.S.C. § 1232g(a)(4), and thus are protected from disclosure under FERPA. Likewise, due to the unique manner in which this request was presented, FERPA and the corresponding regulations prohibit the University from confirming or denying whether it possesses any responsive documents. 

Quoting extensively from 18-ORD-168, and citing 08-ORD-052 and 12-ORD-220, the University asserted that FERPA extends to "and prohibits disclosure of records concerning student government officers and, of particular relevance to this case, records about student athletes." Because Appellant sought records "maintained by the University concerning Daniel from the time he was enrolled there[,]" the University concluded that FERPA applies. The University acknowledged that redaction of education records can sometimes anonymize the records adequately to permit disclosure. However, in some cases, including this one, redaction cannot suffice. If any person requests a record that is directly related to a student, and the University has reason to believe the requester knows the student's identity, as in this case, FERPA prohibits disclosure of the entire record. Under the circumstances presented here, the University was correct in stating that "redaction becomes a futile exercise and the end result is the University must withhold those records [if they exist] in their entirety in order to protect Daniel's privacy rights and comply with federal law." 

In disputing Appellant's claim regarding the University's obligation to confirm or deny whether it possessed any responsive documents, the University argued that such a disclosure would have "substantive implications contrary to the privacy rights addressed." Because Appellant "purports to have an email from Kirk" and his request indicates that the e-mail "discusses or infers certain alleged conduct by Daniel," the University argued that confirming or identifying responsive documents "would be tantamount to disclosing, confirming, or denying" that Daniel was alleged to have engaged in the conduct while enrolled as a student. Although disclosure of such information, viewed in isolation, "would strike some as benign," the University maintained that such disclosure on these facts would violate FERPA by enabling the requester to connect an identifiable student to a particular situation. 

On appeal, this Office asked the University to answer questions to further support its reasoning. The University answered the questions by letter dated February 19, 2020. Quoting the definition of "education records," the University reiterated that, "[b]y its own terms, the Courier-Journal's September 19, 2019, request seeks records related to alleged misconduct by a specific student" while he was enrolled at the University. Accordingly, if any such records exist in the possession of the University, those records would fall squarely within the definition of "education records." The University argued that in this case, the subject e-mail -- insofar as it may exist -- "would be an 'education record' for Daniel even though a private individual outside of the University may have authored it" because it would have been received by an employee acting on the University's behalf and it would directly relate to Daniel. While others, including the author "may be at liberty to disclose their copy of that e-mail" to the Courier-Journal , "the University is not." 

The University further argued that confirming or denying the existence of any responsive documents would constitute a "disclosure" of personally identifiable information regarding an identifiable student contrary to FERPA. 34 C.F.R. § 99.3. In support of its position that even confirming the existence of such records would also constitute a "disclosure" prohibited by FERPA, the University noted that 34 C.F.R. § 99.3 defines a "disclosure" to include "the release, transfer, or other communication of personally identifiable information contained in education records by any means ." If the University acknowledged that it may possess any responsive documents, it would "necessarily implicate and address alleged misconduct of Daniel during his enrollment at the University." Thus, identifying or confirming such records exist would amount to, as the University said: 

[D]isclosing the fact (assuming for argument's sake it is true) that Daniel has been accused of misconduct and possibly subject to disciplinary proceedings during his enrollment related to those accusations. FERPA plainly prohibits the disclosure of such records in connection with an identifiable student -- see United State v. Miami Univ. , 294 F.3d 797 (6th Cir. 2002) -- and in this case, confirmation of those records' existence would constitute such a disclosure. 

Citing 18-ORD-168, the University noted this Office has recognized that production of seemingly innocuous information, depending on the context, may constitute a disclosure that FERPA prohibits.

KRS 61.878(1)(k) exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation." Both FERPA, and the implementing regulations codified at 34 C.F.R. § 99 et seq. , are incorporated into the Act by the express language of KRS 61.878(1)(k). FERPA regulates access to "education records," which 20 U.S.C. § 1232g(a)(4)(A) defines as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), which are not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies this two-part test. See e.g. 

United States v. Miami University , 294 F.3d 797, 812 (6th Cir. 2002)("Notably, Congress made no content-based judgments with regard to its 'education records' definition."); 

Belanger v. Nashua, New Hampshire Sch. Dist. , 856 F.Supp. 40, 49 (D.N.H. 1994)("congressional intent was to fashion a broad definition."). 

The Kentucky Court of Appeals has recognized that FERPA operates to bar the public disclosure of education records, as that term is defined in federal law, and that FERPA is incorporated into the Act by KRS 61.878(1)(k). 

Hardin Cnty. Schools v. Foster , 40 S.W.3d 865 (Ky. 2001); 

Medley v. Bd. of Educ. of Shelby Cnty. , 168 S.W.3d 398 (Ky. App. 2004); 20-ORD-001. More specifically, FERPA precludes the public disclosure of personally identifiable student information 2to third parties, like Appellant, in the absence of prior written consent from a parent or eligible student. 

It is facially evident that any "correspondence, complaints, memoranda or internal reports concerning the conduct of University of Kentucky football player Kash Daniel since his enrollment at the [U]niversity" directly relate to an identifiable student, namely, Kash Daniel. Therefore, any responsive documents are properly characterized as "education records" protected from disclosure under FERPA. This Office was recently asked to determine if Western Kentucky University violated the Act in denying a request for any records or correspondence from several WKU departments "with any reference to" four named students. After concluding that any existing responsive "academic records, athletic records, and disciplinary records" constituted "education records" under FERPA, this Office noted that FERPA also prohibits the release of "education records" where the "personally identifiable information" contained therein, "alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty." See 34 C.F.R. § 99.3(f). 20-ORD-001, p. 4. Here, as in 20-ORD-001, "[e]ven if the name[ ] and information of the student [was] redacted, they would still be linkable to [a] specific student[ ] because of the specific nature of Appellant's request. See 34 C.F.R. § 99.3(f)." 20-ORD-001, p. 5. Accordingly, FERPA prohibits the University from disclosing any existing documents responsive to item 2 of the request. 

Item 1 of the request presents a closer question because Appellant did not specifically reference Kash Daniel, but instead asked for "[a]ny and all correspondence received by [Athletic Director Mitch] Barnhart from [Heather] Kirk since [January] 1, 2018, and any response he or any other University of Kentucky staff or attorneys have provided." However, item 1 must be reviewed in context. In 18-ORD-168, this Office was asked to determine whether a public school district violated the Act in denying a request for all open enrollment acceptance letters and letters denying requests for open enrollment sent to parents or guardians of students in grades 6-8 for the 2018-2019 school year, in addition to a copy of any enrollment documents completed by identified school board members and their student relatives. The district first noted that open enrollment letters and the open enrollment list qualified as "education records," the disclosure of which is prohibited by FERPA. 20 U.S.C. § 1232g; 34 C.F.R. § 99.3. "The names, addresses, and schools of each parent and student contained in those records are not merely 'directory information,'" the district stated, "because, when produced in connection with the open enrollment records and information [the requester] seeks, they become much more than that." 18-ORD-168, p. 2. Because the requester already knew the specific families and students involved, this Office concluded that disclosure of any responsive documents to him would constitute production of "personally identifiable information" of those students, contrary to FERPA. This Office reaches the same conclusion here. 

The following excerpt from 18-ORD-168 is equally persuasive in this appeal: 

The definition of "personally identifiable information" found at 34 C.F.R. Part 99.3 includes, among other things, "information that, alone or in combination, is linked or linkable to a specific student" and information requested by a person, such as [the requester], the District "reasonably believes knows the identity of the student to whom the education record relates." The District correctly noted that the personally identifiable nature of the records in dispute is "compounded by the fact that [the requester] already knows the students (or students' families) to whom the records relate." FERPA prohibits the public disclosure of such information regarding a student. However, FERPA also expressly provides that an entire record constitutes "personally identifiable information," . . . when, as in this case, "a school district [or any public agency] has a good faith reason to believe the requester already knows the identity of the student or students to whom the records relate." See C.F.R. 99.3. Redaction is futile under these facts.

18-ORD-168, pp. 7-8. Although redaction of "personally identifiable information" contained in any documents responsive to item 1 of the request may be possible in a generic sense, the information would still be "linked or linkable to a specific student" when viewed in the overall context of this request, and redaction would thus be equally futile in this case. As in 20-ORD-001 and 18-ORD-168, the University has a "good faith reason to believe the requester already knows the identity of the student" to whom the records would relate. Thus, FERPA also bars disclosure of any existing documents responsive to item 1 of the request. 

The final issue presented in this appeal is whether the University violated the Act in refusing to confirm or deny the existence of responsive records. Ordinarily, to satisfy its burden under KRS 61.880(2)(c) and justify its denial based on the nonexistence of certain records, a public agency must offer a written explanation for the nonexistence of the records if appropriate. See 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011). "The language of the [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id . Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence, this Office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (internal citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3. The holding of this decision should not be construed as departing from this line of authority. However, the plain text of KRS 61.878(1)(k) states that both "public records or information " prohibited by federal law from being disclosed are exempt. Confirming or denying the existence of any responsive documents, under the unique circumstances presented in this appeal, would constitute a "disclosure" of personally identifiable information directly related to an identifiable student -- Kash Daniel -- within the meaning of both 34 C.F.R. 99.3 and KRS 61.878(1)(k). 

This Office finds 13-ORD-127 sufficiently analogous to be instructive on this question. In that case, 502 KAR 30:060, the applicable regulation, prohibited the public agency from giving "any substantive response to a request about CHRI [Criminal History Record Information] from a person who is not entitled to obtain NCIC [National Crime Information Center] records." 13-ORD-127, p. 5. This Office held that "since both 'records' and 'information' are covered by the applicable law," the agency could "limit the public's access to records which would disclose information contained in NCIC." 13-ORD-127, p. 6. The agency, like the University in this case, was prevented by the applicable regulation "from confirming the existence or nonexistence of [the record in dispute] by stating whether records existed" containing the protected information. 13-ORD-127, pp. 7-8. Accordingly, this Office affirms the University's denial of Appellant's request. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Because the Attorney General's review under KRS 61.880(2)(a) is restricted to deciding "whether the agency violated provisions of KRS 61.870 to 61.884," and FERPA is controlling here, this Office respectfully declines to review these constitutional issues.

2 Pursuant to 34 CFR Part 99.3, "Personally Identifiable Information" includes, but is not limited to: 

(a) The student's name; 

(b) The name of the student's parent or other family members; 

(c) The address of the student or student's family; 

(d) A personal identifier, such as the student's social security number, student number, or biometric record; 

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; 

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or 

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates . (emphasis added.)



 

20-ORD-033

LLM Generated Data

Appellant: Lawrence Trageser

Agency: the Authority

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Authority was found to have partially violated the Act by failing to justify redactions to the records related to employee Eric Brown. The Authority inaccurately characterized certain information as unrelated to the request and failed to meet its burden of proof for the redactions. However, the Authority did not violate the Act by not providing a policy that the appellant speculated existed. The decision emphasizes the importance of agencies articulating privacy interests and providing sufficient explanations for redactions.

Cited Opinions

  • 19-ORD-227: F

    The decision explains that the Authority failed to articulate a significant privacy interest and did not meet its burden of proof on appeal, thus violating the Act.

  • 10-ORD-082: O

    This decision is cited for the principle that when an agency fails to articulate a privacy interest, the balance is decisively in favor of disclosure.

  • 11-ORD-111: O

    The decision clarifies that the Authority did not violate the Act by failing to provide a nonexistent policy, as the appellant did not provide a prima facie showing that the records existed.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Authority violated the Act in its disposition of a request by Lawrence Trageser ("Appellant") dated January 3, 2020, for certain records related to Authority employee Eric Brown. For the reasons that follow, this Office finds that the Authority partially violated the Act. 

Appellant's request consisted of three parts: (1) "Any personnel change orders, restrictions or disciplinary action taken against employee Eric Brown since Sunday December 29, 2019"; (2) "Any documentation reflecting the status of employee Eric Brown's duties[,] such as being removed from law enforcement duties, on paid leave, on administrative duties, etc."; and (3) "Policies and procedures of [the] Authority regarding situations, as in this case where an employee acting in law enforcement capacity cannot possess a weapon." 

In its response, the Authority stated that there were no records responsive to part 3. In response to parts 1 and 2, the Authority produced a copy of a one-page "Notice of Administrative Leave for Investigative Purposes" to Mr. Brown dated December 31, 2019, along with the following explanation: 

This document has been redacted to remove information unrelated to your request, that is relating to an administrative proceeding of an agency or law enforcement agency and information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy accordance [ sic ] with KRS 61.878(1)(a) and (h). The Attorney General has opined that a public agency is required to remove the excepted information from the requested information and that addresses, and other personal information are exempt from disclosure.

 

In his letter of appeal, Appellant argued that the Authority had failed to explain its redactions and "falsely represented [the] non-existence" of policies and procedures responsive to part 3. In response to this appeal, the Authority asserted that its explanation of the redactions was "more detailed" than required by law, and reiterated that no policies existed that were responsive to part 3. 

KRS 61.878(1)(a) creates an exception to the Act for "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This exception typically requires a "comparative weighing of the antagonistic interests" between privacy and the public interest in disclosure. 

Ky. Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992). To rely on the exception provided by KRS 61.878(1)(a), the Authority had to provide "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). 

Although the Authority's response to the request mentioned "addresses, and other personal information," it did not assert that the redacted material consisted of such information. If the redactions consisted solely of "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," such as date of birth, Social Security number, driver's license number, and home address, they might have been justified as "categorical" redactions. See 

Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 89 (Ky. 2013). The extent and placement of the redactions, however, suggest that they consist of narrative content, as opposed to discrete items of personal data. For example, in one portion following narrative content, two entire lines of the record are redacted. In another portion, the final clause of a sentence is redacted following an introductory clause that references a collateral, pending action. Therefore, the Authority cannot rely on commonly recognized and accepted categorical redactions, but must establish that a personal privacy interest outweighs the public interest in disclosure. 

The public purpose of the Act is to ensure "meaningful public oversight, to enable Kentuckians to know 'what their government is up to.'" Ky. New Era , 415 S.W.3d at 89. If a public agency identifies a personal privacy interest in a public record, that interest must be weighed against the public interest. Ky. Bd. of Examiners , 826 S.W.2d at 327-28. "Where the agency fails to articulate a privacy interest, however, 'the balance is decisively in favor of disclosure.'" 19-ORD-227 (quoting 10-ORD-082). By merely citing KRS 61.878(1)(a) without articulating a significant privacy interest, the Authority failed to explain the purpose of its redactions, and failed to meet its burden of proof on appeal. 

The Authority also cited KRS 61.878(1)(h), which authorizes the nondisclosure of: 

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.

 

To invoke the exemption under KRS 61.878(1)(h), "the agency must show (1) that the records to be withheld were compiled for law enforcement [or administrative adjudication] purposes; (2) that a law enforcement action [or administrative adjudication] is prospective; and (3) that premature release of the records would harm the agency in some articulable way." 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 850 (Ky. 2013). 

With regard to the first element, the Authority did not assert that it was a law enforcement agency or that the "administrative proceeding" in question was an adjudication. Rather, the Authority merely stated that the redacted material was "relating to an administrative proceeding of an agency or law enforcement agency" (emphasis added). Therefore, the Authority did not establish the first element of the exception. 

Because the Authority failed to identify whether it was involved in a law enforcement action or administrative adjudication, it also failed to identify whether the purported law enforcement action or administrative adjudication was "prospective." It is unclear from this record whether the Authority actually plans or is considering any further adjudication regarding Mr. Brown. Thus, the Authority failed to establish the second element. 

Finally, the Authority failed to state that disclosure of the redacted material would harm the agency as contemplated in the statute. To invoke KRS 61.878(1)(h), an agency must "articulate a factual basis for [how,] because of the record's content, its release poses a concrete risk of harm to the agency in [a] prospective action." Id . at 851. An agency response must therefore provide "sufficient information about the nature of the withheld record ... and the harm that would result from its release to permit the requester to dispute the claim." Id . at 852. By merely citing KRS 61.878(1)(h), the Authority failed to explain how the exception applied. 

When an agency fails to explain how an exception under KRS 61.878(1) applies to the withheld record, it fails to meet its burden of proof under KRS 61.880(2)(c). Accordingly, this Office concludes that the Authority's deficient response violated the Act. 

In its response to the request, the Authority also asserted that the redacted information was "unrelated to [Appellant's] request." The Appellant requested records showing that Mr. Brown had been placed on leave. From its context, the redacted material appears to address the reasons for placing him on administrative leave. Thus, the Authority inaccurately characterized the information as unresponsive to the request. Because the Authority failed to carry its burden to justify redactions to the record, the Authority's redactions violated the Act. 

As to the Appellant's request for policies and procedures "regarding situations ... where an employee acting in law enforcement capacity cannot possess a weapon," there is no basis to dispute the Authority's assertion that no responsive records exist. "[T]his office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency." 11-ORD-111. 

Appellant argues that a policy must exist because the Authority's notice to Mr. Brown cited an "employee handbook." The context of that reference, however, indicates a policy on "Administrative Leave for Investigative Purposes," rather than a policy on "where an employee ... cannot possess a weapon." Appellant's mere speculation does not constitute a prima facie showing that disputed records exist. Id . Therefore, this Office finds that the Authority did not violate the Act by failing to provide a nonexistent policy. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-033

LLM Generated Data

Appellant: Lawrence Trageser

Agency: the Authority

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Authority was found to have partially violated the Act by failing to adequately justify redactions made to the records requested by Lawrence Trageser. The Authority's response did not sufficiently explain the redactions made based on privacy concerns and failed to establish the elements required to invoke the exemption under KRS 61.878(1)(h). Additionally, the Authority inaccurately characterized certain information as unrelated to the request, which also violated the Act. However, the Authority did not violate the Act by failing to provide a nonexistent policy in response to a request. The decision allows for an appeal to be initiated in the appropriate circuit court.

Cited Opinions

  • 19-ORD-227: O

    The decision states that when an agency fails to articulate a privacy interest, the balance is decisively in favor of disclosure, citing 10-ORD-082.

  • 10-ORD-082: O

    The decision is cited for the principle that when an agency fails to articulate a privacy interest, the balance is decisively in favor of disclosure.

  • 11-ORD-111: O

    The decision affirms public agency denials of requests based on the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Authority violated the Act in its disposition of a request by Lawrence Trageser ("Appellant") dated January 3, 2020, for certain records related to Authority employee Eric Brown. For the reasons that follow, this Office finds that the Authority partially violated the Act. 

Appellant's request consisted of three parts: (1) "Any personnel change orders, restrictions or disciplinary action taken against employee Eric Brown since Sunday December 29, 2019"; (2) "Any documentation reflecting the status of employee Eric Brown's duties[,] such as being removed from law enforcement duties, on paid leave, on administrative duties, etc."; and (3) "Policies and procedures of [the] Authority regarding situations, as in this case where an employee acting in law enforcement capacity cannot possess a weapon." 

In its response, the Authority stated that there were no records responsive to part 3. In response to parts 1 and 2, the Authority produced a copy of a one-page "Notice of Administrative Leave for Investigative Purposes" to Mr. Brown dated December 31, 2019, along with the following explanation: 

This document has been redacted to remove information unrelated to your request, that is relating to an administrative proceeding of an agency or law enforcement agency and information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy accordance [ sic ] with KRS 61.878(1)(a) and (h). The Attorney General has opined that a public agency is required to remove the excepted information from the requested information and that addresses, and other personal information are exempt from disclosure.

In his letter of appeal, Appellant argued that the Authority had failed to explain its redactions and "falsely represented [the] non-existence" of policies and procedures responsive to part 3. In response to this appeal, the Authority asserted that its explanation of the redactions was "more detailed" than required by law, and reiterated that no policies existed that were responsive to part 3. 

KRS 61.878(1)(a) creates an exception to the Act for "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." This exception typically requires a "comparative weighing of the antagonistic interests" between privacy and the public interest in disclosure. 

Ky. Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992). To rely on the exception provided by KRS 61.878(1)(a), the Authority had to provide "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). 

Although the Authority's response to the request mentioned "addresses, and other personal information," it did not assert that the redacted material consisted of such information. If the redactions consisted solely of "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," such as date of birth, Social Security number, driver's license number, and home address, they might have been justified as "categorical" redactions. See 

Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 89 (Ky. 2013). The extent and placement of the redactions, however, suggest that they consist of narrative content, as opposed to discrete items of personal data. For example, in one portion following narrative content, two entire lines of the record are redacted. In another portion, the final clause of a sentence is redacted following an introductory clause that references a collateral, pending action. Therefore, the Authority cannot rely on commonly recognized and accepted categorical redactions, but must establish that a personal privacy interest outweighs the public interest in disclosure. 

The public purpose of the Act is to ensure "meaningful public oversight, to enable Kentuckians to know 'what their government is up to.'" Ky. New Era , 415 S.W.3d at 89. If a public agency identifies a personal privacy interest in a public record, that interest must be weighed against the public interest. Ky. Bd. of Examiners , 826 S.W.2d at 327-28. "Where the agency fails to articulate a privacy interest, however, 'the balance is decisively in favor of disclosure.'" 19-ORD-227 (quoting 10-ORD-082). By merely citing KRS 61.878(1)(a) without articulating a significant privacy interest, the Authority failed to explain the purpose of its redactions, and failed to meet its burden of proof on appeal. 

The Authority also cited KRS 61.878(1)(h), which authorizes the nondisclosure of: 

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.

To invoke the exemption under KRS 61.878(1)(h), "the agency must show (1) that the records to be withheld were compiled for law enforcement [or administrative adjudication] purposes; (2) that a law enforcement action [or administrative adjudication] is prospective; and (3) that premature release of the records would harm the agency in some articulable way." 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 850 (Ky. 2013). 

With regard to the first element, the Authority did not assert that it was a law enforcement agency or that the "administrative proceeding" in question was an adjudication. Rather, the Authority merely stated that the redacted material was "relating to an administrative proceeding of an agency or law enforcement agency" (emphasis added). Therefore, the Authority did not establish the first element of the exception. 

Because the Authority failed to identify whether it was involved in a law enforcement action or administrative adjudication, it also failed to identify whether the purported law enforcement action or administrative adjudication was "prospective." It is unclear from this record whether the Authority actually plans or is considering any further adjudication regarding Mr. Brown. Thus, the Authority failed to establish the second element. 

Finally, the Authority failed to state that disclosure of the redacted material would harm the agency as contemplated in the statute. To invoke KRS 61.878(1)(h), an agency must "articulate a factual basis for [how,] because of the record's content, its release poses a concrete risk of harm to the agency in [a] prospective action." Id . at 851. An agency response must therefore provide "sufficient information about the nature of the withheld record ... and the harm that would result from its release to permit the requester to dispute the claim." Id . at 852. By merely citing KRS 61.878(1)(h), the Authority failed to explain how the exception applied. 

When an agency fails to explain how an exception under KRS 61.878(1) applies to the withheld record, it fails to meet its burden of proof under KRS 61.880(2)(c). Accordingly, this Office concludes that the Authority's deficient response violated the Act. 

In its response to the request, the Authority also asserted that the redacted information was "unrelated to [Appellant's] request." The Appellant requested records showing that Mr. Brown had been placed on leave. From its context, the redacted material appears to address the reasons for placing him on administrative leave. Thus, the Authority inaccurately characterized the information as unresponsive to the request. Because the Authority failed to carry its burden to justify redactions to the record, the Authority's redactions violated the Act. 

As to the Appellant's request for policies and procedures "regarding situations ... where an employee acting in law enforcement capacity cannot possess a weapon," there is no basis to dispute the Authority's assertion that no responsive records exist. "[T]his office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency." 11-ORD-111. 

Appellant argues that a policy must exist because the Authority's notice to Mr. Brown cited an "employee handbook." The context of that reference, however, indicates a policy on "Administrative Leave for Investigative Purposes," rather than a policy on "where an employee ... cannot possess a weapon." Appellant's mere speculation does not constitute a prima facie showing that disputed records exist. Id . Therefore, this Office finds that the Authority did not violate the Act by failing to provide a nonexistent policy. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-031

LLM Generated Data

Appellant: Tim Sullivan

Agency: University

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The University did not violate the law by denying the request for records related to identifiable students under FERPA. The denial was based on the prohibition of disclosure by federal law, specifically FERPA, which protects education records related to students. The University's refusal to confirm or deny the existence of responsive records was justified under FERPA and the Act. The decision affirms the University's denial of the request.

Cited Opinions

  • 18-ORD-168: F

    The decision is cited to support the conclusion that FERPA prohibits the disclosure of education records related to identifiable students.

  • 08-ORD-052: O

    Cited to argue that FERPA extends to records concerning student government officers and student athletes.

  • 12-ORD-220: F

    Cited to support the argument that FERPA prohibits disclosure of records concerning identifiable students.

  • 20-ORD-001: F

    Cited to show that FERPA prohibits the release of education records where personally identifiable information is linked to a specific student.

  • 01-ORD-38: O

    Referenced to highlight the requirements for a public agency to provide a written explanation for the nonexistence of records if appropriate.

  • 02-ORD-144: O

    Cited to show that confirming or denying the existence of responsive documents can constitute a disclosure of personally identifiable information.

  • 13-ORD-127: O

    Analogous case cited to affirm the denial of the request based on the prohibition of disclosure by applicable regulations.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the University violated the Act in denying Courier-Journal reporter Tim Sullivan's ("Appellant") September 19, 2019, request for a copy of the following: 

1) Any and all correspondence received by [Athletic Director Mitch] Barnhart from [Heather] Kirk since [January] 1, 2018, and any response he or any other University of Kentucky staff or attorneys have provided. 

2) Any correspondence, complaints, memoranda or internal reports concerning the conduct of University of Kentucky football player Kash Daniel since his enrollment at the [U]niversity.

 

In addition to his request, Appellant explained that he was "in possession of an e-mail ostensibly sent by Heather Kirk to [A]thletics [D]irector Mitch Barnhart on Thursday, Sep. 19" and stated that he wanted "to verify its authenticity and obtain a copy of any response Mr. Barnhart provides." 

In accordance with KRS 61.880(1), the Official Records Custodian issued the following written response on behalf of the University within three working days of receipt: 

To the extent the University has the records you seek, the records are exempt under the personal privacy exemption KRS 61.878(1)(a) as well as the federal law exemption KRS 61.878(1)(k) and (l), and their disclosure is prohibited by the Commonwealth Constitution. First, because the records directly relate to a student, they are education records under the federal Family Educational Rights and Privacy Act [("FERPA")]. Since the University had reason to believe you know the identity of the student, federal regulations prohibit the disclosure of education records even with redactions. Second, all of the records fall within the statutory personal privacy exemption. Third, all of the records are protected by the state constitutional right of privacy and, thus, the Commonwealth Constitution prohibits their disclosure. Fourth, all of the records are protected by the federal constitutional right of privacy and, thus, fall within the federal law exemption.

 

This appeal followed. 

First, Appellant claimed the University's refusal to confirm or deny whether it possessed any responsive documents violated KRS 61.880(1). Second, Appellant disputed the University's position "that the requested record is an 'education record' under FERPA simply because it relates to a student." Appellant "had reason to believe" the subject e-mail "does not concern a student's educational record in any way, and therefore should not be considered an education record." Third, Appellant challenged the University's failure to cite a statutory exception, as required by KRS 61.880(1), or any case law in support of its "overbroad claims of constitutional privacy interests." 1In summary, Appellant complained the University's "overbroad objections have prevented me from even learning if responsive records exist and, if so," further prevented him from learning their content (even with redactions). 

In response, the University first reiterated that it had reason to believe -- as the request plainly confirmed -- the Courier-Journal "already knew the identity of the student (Daniel) whom any responsive records might concern, and as such, the privacy problems implicated by [its] request could not be cured by redaction." The University maintained that FERPA prohibits disclosure of the records in their entirety, but even if FERPA did not apply, the records would still be protected from disclosure pursuant to KRS 61.878(1)(a), (k), and (l). In this particular case, the University argued, "identifying or confirming the existence of responsive records would be tantamount to disclosing information about Daniel in which he clearly has a legally-protected privacy interest." 

Based upon the following, this Office finds that FERPA is controlling on the facts presented. The records in dispute are "education records" within the meaning of 20 U.S.C. § 1232g(a)(4), and thus are protected from disclosure under FERPA. Likewise, due to the unique manner in which this request was presented, FERPA and the corresponding regulations prohibit the University from confirming or denying whether it possesses any responsive documents. 

Quoting extensively from 18-ORD-168, and citing 08-ORD-052 and 12-ORD-220, the University asserted that FERPA extends to "and prohibits disclosure of records concerning student government officers and, of particular relevance to this case, records about student athletes." Because Appellant sought records "maintained by the University concerning Daniel from the time he was enrolled there[,]" the University concluded that FERPA applies. The University acknowledged that redaction of education records can sometimes anonymize the records adequately to permit disclosure. However, in some cases, including this one, redaction cannot suffice. If any person requests a record that is directly related to a student, and the University has reason to believe the requester knows the student's identity, as in this case, FERPA prohibits disclosure of the entire record. Under the circumstances presented here, the University was correct in stating that "redaction becomes a futile exercise and the end result is the University must withhold those records [if they exist] in their entirety in order to protect Daniel's privacy rights and comply with federal law." 

In disputing Appellant's claim regarding the University's obligation to confirm or deny whether it possessed any responsive documents, the University argued that such a disclosure would have "substantive implications contrary to the privacy rights addressed." Because Appellant "purports to have an email from Kirk" and his request indicates that the e-mail "discusses or infers certain alleged conduct by Daniel," the University argued that confirming or identifying responsive documents "would be tantamount to disclosing, confirming, or denying" that Daniel was alleged to have engaged in the conduct while enrolled as a student. Although disclosure of such information, viewed in isolation, "would strike some as benign," the University maintained that such disclosure on these facts would violate FERPA by enabling the requester to connect an identifiable student to a particular situation. 

On appeal, this Office asked the University to answer questions to further support its reasoning. The University answered the questions by letter dated February 19, 2020. Quoting the definition of "education records," the University reiterated that, "[b]y its own terms, the Courier-Journal's September 19, 2019, request seeks records related to alleged misconduct by a specific student" while he was enrolled at the University. Accordingly, if any such records exist in the possession of the University, those records would fall squarely within the definition of "education records." The University argued that in this case, the subject e-mail -- insofar as it may exist -- "would be an 'education record' for Daniel even though a private individual outside of the University may have authored it" because it would have been received by an employee acting on the University's behalf and it would directly relate to Daniel. While others, including the author "may be at liberty to disclose their copy of that e-mail" to the Courier-Journal , "the University is not." 

The University further argued that confirming or denying the existence of any responsive documents would constitute a "disclosure" of personally identifiable information regarding an identifiable student contrary to FERPA. 34 C.F.R. § 99.3. In support of its position that even confirming the existence of such records would also constitute a "disclosure" prohibited by FERPA, the University noted that 34 C.F.R. § 99.3 defines a "disclosure" to include "the release, transfer, or other communication of personally identifiable information contained in education records by any means ." If the University acknowledged that it may possess any responsive documents, it would "necessarily implicate and address alleged misconduct of Daniel during his enrollment at the University." Thus, identifying or confirming such records exist would amount to, as the University said: 

[D]isclosing the fact (assuming for argument's sake it is true) that Daniel has been accused of misconduct and possibly subject to disciplinary proceedings during his enrollment related to those accusations. FERPA plainly prohibits the disclosure of such records in connection with an identifiable student -- see United State v. Miami Univ. , 294 F.3d 797 (6th Cir. 2002) -- and in this case, confirmation of those records' existence would constitute such a disclosure. 

Citing 18-ORD-168, the University noted this Office has recognized that production of seemingly innocuous information, depending on the context, may constitute a disclosure that FERPA prohibits.

 

KRS 61.878(1)(k) exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation." Both FERPA, and the implementing regulations codified at 34 C.F.R. § 99 et seq. , are incorporated into the Act by the express language of KRS 61.878(1)(k). FERPA regulates access to "education records," which 20 U.S.C. § 1232g(a)(4)(A) defines as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." With the exception of narrowly defined categories of records identified at 20 U.S.C. § 1232g(4)(B)(i)-(iv), which are not relevant here, the term is expansively construed to include all information, in whatever form, which satisfies this two-part test. See e.g. 

United States v. Miami University , 294 F.3d 797, 812 (6th Cir. 2002)("Notably, Congress made no content-based judgments with regard to its 'education records' definition."); 

Belanger v. Nashua, New Hampshire Sch. Dist. , 856 F.Supp. 40, 49 (D.N.H. 1994)("congressional intent was to fashion a broad definition."). 

The Kentucky Court of Appeals has recognized that FERPA operates to bar the public disclosure of education records, as that term is defined in federal law, and that FERPA is incorporated into the Act by KRS 61.878(1)(k). 

Hardin Cnty. Schools v. Foster , 40 S.W.3d 865 (Ky. 2001); 

Medley v. Bd. of Educ. of Shelby Cnty. , 168 S.W.3d 398 (Ky. App. 2004); 20-ORD-001. More specifically, FERPA precludes the public disclosure of personally identifiable student information 2to third parties, like Appellant, in the absence of prior written consent from a parent or eligible student. 

It is facially evident that any "correspondence, complaints, memoranda or internal reports concerning the conduct of University of Kentucky football player Kash Daniel since his enrollment at the [U]niversity" directly relate to an identifiable student, namely, Kash Daniel. Therefore, any responsive documents are properly characterized as "education records" protected from disclosure under FERPA. This Office was recently asked to determine if Western Kentucky University violated the Act in denying a request for any records or correspondence from several WKU departments "with any reference to" four named students. After concluding that any existing responsive "academic records, athletic records, and disciplinary records" constituted "education records" under FERPA, this Office noted that FERPA also prohibits the release of "education records" where the "personally identifiable information" contained therein, "alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty." See 34 C.F.R. § 99.3(f). 20-ORD-001, p. 4. Here, as in 20-ORD-001, "[e]ven if the name[ ] and information of the student [was] redacted, they would still be linkable to [a] specific student[ ] because of the specific nature of Appellant's request. See 34 C.F.R. § 99.3(f)." 20-ORD-001, p. 5. Accordingly, FERPA prohibits the University from disclosing any existing documents responsive to item 2 of the request. 

Item 1 of the request presents a closer question because Appellant did not specifically reference Kash Daniel, but instead asked for "[a]ny and all correspondence received by [Athletic Director Mitch] Barnhart from [Heather] Kirk since [January] 1, 2018, and any response he or any other University of Kentucky staff or attorneys have provided." However, item 1 must be reviewed in context. In 18-ORD-168, this Office was asked to determine whether a public school district violated the Act in denying a request for all open enrollment acceptance letters and letters denying requests for open enrollment sent to parents or guardians of students in grades 6-8 for the 2018-2019 school year, in addition to a copy of any enrollment documents completed by identified school board members and their student relatives. The district first noted that open enrollment letters and the open enrollment list qualified as "education records," the disclosure of which is prohibited by FERPA. 20 U.S.C. § 1232g; 34 C.F.R. § 99.3. "The names, addresses, and schools of each parent and student contained in those records are not merely 'directory information,'" the district stated, "because, when produced in connection with the open enrollment records and information [the requester] seeks, they become much more than that." 18-ORD-168, p. 2. Because the requester already knew the specific families and students involved, this Office concluded that disclosure of any responsive documents to him would constitute production of "personally identifiable information" of those students, contrary to FERPA. This Office reaches the same conclusion here. 

The following excerpt from 18-ORD-168 is equally persuasive in this appeal: 

The definition of "personally identifiable information" found at 34 C.F.R. Part 99.3 includes, among other things, "information that, alone or in combination, is linked or linkable to a specific student" and information requested by a person, such as [the requester], the District "reasonably believes knows the identity of the student to whom the education record relates." The District correctly noted that the personally identifiable nature of the records in dispute is "compounded by the fact that [the requester] already knows the students (or students' families) to whom the records relate." FERPA prohibits the public disclosure of such information regarding a student. However, FERPA also expressly provides that an entire record constitutes "personally identifiable information," . . . when, as in this case, "a school district [or any public agency] has a good faith reason to believe the requester already knows the identity of the student or students to whom the records relate." See C.F.R. 99.3. Redaction is futile under these facts.

 

18-ORD-168, pp. 7-8. Although redaction of "personally identifiable information" contained in any documents responsive to item 1 of the request may be possible in a generic sense, the information would still be "linked or linkable to a specific student" when viewed in the overall context of this request, and redaction would thus be equally futile in this case. As in 20-ORD-001 and 18-ORD-168, the University has a "good faith reason to believe the requester already knows the identity of the student" to whom the records would relate. Thus, FERPA also bars disclosure of any existing documents responsive to item 1 of the request. 

The final issue presented in this appeal is whether the University violated the Act in refusing to confirm or deny the existence of responsive records. Ordinarily, to satisfy its burden under KRS 61.880(2)(c) and justify its denial based on the nonexistence of certain records, a public agency must offer a written explanation for the nonexistence of the records if appropriate. See 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011). "The language of the [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id . Thus, in addressing the obligations of a public agency denying access to public records based upon their nonexistence, this Office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (internal citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p. 3. The holding of this decision should not be construed as departing from this line of authority. However, the plain text of KRS 61.878(1)(k) states that both "public records or information " prohibited by federal law from being disclosed are exempt. Confirming or denying the existence of any responsive documents, under the unique circumstances presented in this appeal, would constitute a "disclosure" of personally identifiable information directly related to an identifiable student -- Kash Daniel -- within the meaning of both 34 C.F.R. 99.3 and KRS 61.878(1)(k). 

This Office finds 13-ORD-127 sufficiently analogous to be instructive on this question. In that case, 502 KAR 30:060, the applicable regulation, prohibited the public agency from giving "any substantive response to a request about CHRI [Criminal History Record Information] from a person who is not entitled to obtain NCIC [National Crime Information Center] records." 13-ORD-127, p. 5. This Office held that "since both 'records' and 'information' are covered by the applicable law," the agency could "limit the public's access to records which would disclose information contained in NCIC." 13-ORD-127, p. 6. The agency, like the University in this case, was prevented by the applicable regulation "from confirming the existence or nonexistence of [the record in dispute] by stating whether records existed" containing the protected information. 13-ORD-127, pp. 7-8. Accordingly, this Office affirms the University's denial of Appellant's request. 

Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Because the Attorney General's review under KRS 61.880(2)(a) is restricted to deciding "whether the agency violated provisions of KRS 61.870 to 61.884," and FERPA is controlling here, this Office respectfully declines to review these constitutional issues.

2 Pursuant to 34 CFR Part 99.3, "Personally Identifiable Information" includes, but is not limited to: 

(a) The student's name; 

(b) The name of the student's parent or other family members; 

(c) The address of the student or student's family; 

(d) A personal identifier, such as the student's social security number, student number, or biometric record; 

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name; 

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or 

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates . (emphasis added.)



 

20-ORD-036

LLM Generated Data

Appellant: inmate Gary Cochran

Agency: Lawrence County E-911

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The appeal by inmate Gary Cochran of Lawrence County E-911's disposition of his open records request was found to be time-barred and therefore untimely. The appeal was not considered by the Attorney General's Office due to being filed more than 20 days after the alleged partial denial of the request.

Cited Opinions

  • 19-ORD-069: O

    The decision states that the existence of a prior unperfected appeal does not toll the 20-day deadline for perfecting an appeal under KRS 197.025(3).

  • 02-ORD-54: O

    The decision is cited to support the conclusion that because the Appellant did not perfect his appeal within 20 days of the alleged partial denial of his request, the appeal is untimely.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

This matter has been presented to the Attorney General in an open records appeal. This Office finds that inmate Gary Cochran's ("Appellant") appeal of Lawrence County E-911's ("E-911") disposition of his December 6, 2019, open records request is time-barred. 

In his letter of appeal, Appellant alleged that E-911 had provided some but not all of the requested records relating to incident numbers 2016-00005692 and 2016-00005693, which occurred on May 24, 2016. He attached a copy of his request and the records he received in response, but did not indicate when E-911 had issued its response. 

This Office previously received an unperfected appeal from Appellant dated January 13, 2020, making the same complaint regarding the December 6, 2019, request. Therefore, it is clear that E-911 responded to the request no later than January 13, 2020. Appellant's present appeal is dated February 4, 2020, which is more than 20 days after January 13, 2020. 

KRS 197.025(3) provides: 

KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.

 

The existence of a prior unperfected appeal does not toll the 20-day deadline for perfecting an appeal under KRS 197.025(3). 19-ORD-069. Because Appellant did not perfect his appeal within 20 days of the alleged partial denial of his request, the appeal is untimely. This Office therefore may not consider the appeal. 02-ORD-54. 

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.



 

20-OMD-035

LLM Generated Data

Appellant: Lyn Warner

Agency: Board

AG: Daniel Cameron

AAG: John Marcus Jones

Summary

The Board violated the Open Meetings Act by discussing matters not listed on the special meeting agenda. The Board was found to have complied with the scheduling and notice requirements for special meetings. The decision also clarified that a written complaint may be submitted to the presiding officer of a public agency by email, contrary to the Board's argument. The Board's response to the complaint was deemed untimely and in violation of the Act. The appellant was found to have complied with the requirements of submitting a written complaint. The decision also highlighted that the Act does not require posting special meeting notices on websites, only in physical locations. The Board's argument that the agenda item was sufficiently specific to discuss budgetary matters was rejected, as it did not provide proper notice to engage in those discussions.

Cited Opinions

  • 18-OMD-163: O

    The decision discusses that an email complaint can be considered a 'written complaint' under KRS 61.846(1), but the agency responded to the email complaint in that case.

  • 18-OMD-212: M

    This decision modified previous decisions by stating that KRS 61.846(1) places no limitations on the manner of submission of a complaint, citing a footnote in 06-OMD-68.

  • 06-OMD-68: O

    The decision is cited for the agency admitting to a procedural error regarding a complaint submission via email.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;John Marcus Jones,Assistant Attorney General 

Open Meetings Decision 

On February 11, 2020, Lyn Warner ("Appellant") emailed a complaint to Board Chairman Jim Wurth, at his official Kentucky Schools email address, in which she alleged the Board violated the Act by failing to pre-announce a special meeting on the Board website and in editions of The Mayfield Messenger . Appellant also alleged that the Board violated the Act by failing to list "Budget" on the special meeting agenda, but discussed the item during the special meeting. Having received no response to the emailed complaint, Appellant initiated this appeal on February 18, 2020. 

The Board responded to the appeal, stating that the Board Chairman responded to the complaint on February 19, 2020 after learning of its existence through this appeal. The Board argued that the appeal should be dismissed because Appellant failed to comply with the requirements of KRS 61.846(1), stating it "does not waive the requirement of a written complaint and does not accept e-mailed submissions regarding allegations of violations of the [Act]." 

Regarding the allegations, the Board stated it complied with all special meeting notice requirements, and provided emails and exhibits for verification. The Board showed that it sent timely notice to The Mayfield Messenger , but stated that it could not control whether the media elects to announce the meeting. The Board showed that it posted its notice and agenda in conspicuous places, but argued that the Act does not require posting on websites. Finally, the Board argued that the special meeting agenda item, "XV. Plan Agenda for next January, 2020 Board Meeting" was "sufficiently specific to provide the public with fair notice that matters typically contained in the agenda for monthly meetings would be discussed, including but not limited to budgetary...matters[.]" 

A Written Complaint Submitted Via Email to the Presiding Officer of a Public Agency Complies with KRS 61.846(1)

The Board's primary argument is that complaints submitted via email to a presiding officer do not comply with KRS 61.846(1) because emails are not "written complaints." For authority, the Board relies on footnote 2 in 18-OMD-163. There, this Office opined that an email did not constitute a "written complaint," but the agency waived its argument that the complaint was deficient because the agency responded to the email. Id . Therefore, this Office found that discussion of "this procedural issue" was "unwarranted." Id . However, in 18-OMD-212, this Office simply stated "KRS 61.846(1) requires a complaining party to 'submit a written complaint to the presiding officer of the public agency,' but places no limitations on the manner of submission." With its own footnote, 18-OMD-212 modified all previous decisions by this Office that stated otherwise. 18-OMD-212 n. 1. In reaching that conclusion, this Office cited a footnote in 06-OMD-68. There, this Office would not "belabor the issue" because the agency admitted this to be a procedural error. 06-OMD-68 n. 3. 

This Office will now explain, based on the statutory text as written, that a "written complaint" may be submitted to the presiding officer of a public agency by email. 

Prior to seeking enforcement of the Open Meetings Act to this Office, "[t]he person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation." KRS 61.846(1). The statute does not define "written complaint." However, "the plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source." 

Revenue Cabinet v. O'Daniel , 153 S.W.3d 815, 819 (Ky. 2005) (quotations omitted). The plain meaning of "written complaint" is that the complaint be in writing -- i.e., in any written form and not orally communicated. Contrary to an oral complaint, the difference between a letter and an email is not that one is a writing and the other is not, rather, it is the means of transmitting the writing to another person. Therefore, the question is not whether an email is a "written complaint." Rather, the question is how must a person "submit a written complaint to the presiding officer"? On this question, KRS 61.846(1) is silent. 

When construing statutes, the courts and this Office "presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes." 

Shawnee Telecom Resource, Inc. v. Brown , 354 S.W.3d 542, 551 (Ky. 2011). Only when a statute is silent or ambiguous will this Office "resort to extrinsic aids such as the statute's legislative history [or] the canons of construction[.]" Id .; see also 

Travlers Indem. Co . v. Reker , 100 S.W.3d 756, 764 (Ky. 2003). KRS 61.846(1) only requires a written complaint to be submitted to the presiding officer. However, the word "submit" means "to present or propose to another for review, consideration, or decision," according to Merriam-Webster's Dictionary. Thus, the plain meaning of the word "submit" provides no direct guidance on how to transmit the written complaint to the presiding officer. Indirectly, however, the expansive meaning of the word "submit" indicates that transmission of the written complaint can occur by email. 

Looking to the Open Records Act, a comparable statute, KRS 61.872(2) provides that the official custodian of records "may require" a written application "be hand delivered, mailed, or sent via facsimile." KRS 61.872(2)(a). The records custodian may also require the written application be sent by email. KRS 61.872(2)(c). It is instructive that the General Assembly granted a public agency's record custodian the discretion in how to accept written applications under the Open Records Act, but declined to grant the same discretion to the presiding officer of a public agency in accepting a written complaint under the Open Meetings Act. Likewise, in KRS 61.823(4), the General Assembly has provided the means by which agency members and the media may receive notice of a special meeting. The agency is required to transmit this notice via mail or facsimile. KRS 61.823(4)(a). However, agency members or the media, in their discretion, may elect to receive such notice by email by filing a written request to receive notice via email. KRS 61.823(4)(b). Here, the General Assembly has demonstrated it is willing to grant discretion over the means of receiving written notice to agency members and the media. It has not provided the discretion to presiding officers of public agencies in how they will accept written complaints. Based on these statutes, it is clear that if the General Assembly wants to give an agency such discretion, it knows how to do so. See e.g. 

Hearn v. Commonwealth , 80 S.W.3d 432, 438 (Ky. 2002) ("it is clear that the Legislature knows how to expressly provide" for something when it wants to). 

Of course, if the presiding officer never receives the written complaint then it has not been submitted to him. But Appellant has provided proof that she sent her written complaint to the Board's presiding officer at his official school board email account and the presiding officer has not argued that he did not receive the email. Instead, the Board argued it was not required to respond to written complaints via email and failed to issue any response until after this appeal was initiated. As such, its response was untimely and violated the Act. KRS 61.846(1) (requiring the public agency to notify the complainant whether it will remedy the complaint within three business days after receipt of the complaint.) 

The Board Complied with the Scheduling and Notice Requirements for Special Meetings

KRS 61.823 provides in relevant part: 

(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. 

(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . . 

(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.

 

The record establishes that the Board issued notices and agendas that complied with the content requirements of KRS 61.823(3). Presuming The Mayfield Messenger elected to receive notices of special Board meetings via email pursuant to KRS 61.823(4)(b), the record shows that the notice and agenda were timely delivered to the media entity. The Board provided evidence that it posted the notice and agenda at conspicuous locations, per KRS 61.823(4)(c). And although such requirement may be useful in the modern era, KRS 61.823(4)(c) does not require an agency to post anything on its website and this Office must enforce the text of a statute as written--not based on policy preferences. Accordingly, the Board met its burden of proof that it complied with the notice requirements of KRS 61.823. 

The Board Violated the Act by Discussing Matters Not Part of the Special Meeting Agenda

"Discussions and action at the [special] meeting shall be limited to items listed on the agenda in the notice." KRS 61.823(3). In her written complaint to the Board, Appellant objected to the Board's discussion of the budget because the agenda did not indicate that any budgetary matters would be discussed. The Board argued that agenda item "XV. Plan Agenda for next January, 2020 Board Meeting" authorized the Board to discuss budgetary matters because it was "sufficiently specific to provide the public with fair notice that matters typically contained in the agenda for monthly meetings would be discussed[.]" But that agenda item simply provided notice that the Board would plan an agenda for its next meeting, not that it would actively discuss the substance of the topics that would appear on that next agenda. If budgetary discussions extended beyond mere discussion of whether the budget should appear on the next January 2020 meeting agenda, the Board failed to provide proper notice it would engage in these discussions and, therefore, violated the Act. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-036

LLM Generated Data

Appellant: Inmate Gary Cochran

Agency: Lawrence County E-911

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The appeal by Inmate Gary Cochran regarding the open records request to Lawrence County E-911 was found to be time-barred and therefore untimely. The Attorney General's Office could not consider the appeal due to it not being perfected within 20 days of the alleged partial denial of the request.

Cited Opinions

  • 19-ORD-069: O

    The decision states that the existence of a prior unperfected appeal does not toll the 20-day deadline for perfecting an appeal under KRS 197.025(3).

  • 02-ORD-54: O

    The decision is cited in the context of the time-barred appeal, indicating that the appeal was untimely.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

This matter has been presented to the Attorney General in an open records appeal. This Office finds that inmate Gary Cochran's ("Appellant") appeal of Lawrence County E-911's ("E-911") disposition of his December 6, 2019, open records request is time-barred. 

In his letter of appeal, Appellant alleged that E-911 had provided some but not all of the requested records relating to incident numbers 2016-00005692 and 2016-00005693, which occurred on May 24, 2016. He attached a copy of his request and the records he received in response, but did not indicate when E-911 had issued its response. 

This Office previously received an unperfected appeal from Appellant dated January 13, 2020, making the same complaint regarding the December 6, 2019, request. Therefore, it is clear that E-911 responded to the request no later than January 13, 2020. Appellant's present appeal is dated February 4, 2020, which is more than 20 days after January 13, 2020. 

KRS 197.025(3) provides: 

KRS 61.880 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.

The existence of a prior unperfected appeal does not toll the 20-day deadline for perfecting an appeal under KRS 197.025(3). 19-ORD-069. Because Appellant did not perfect his appeal within 20 days of the alleged partial denial of his request, the appeal is untimely. This Office therefore may not consider the appeal. 02-ORD-54. 

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.



 

20-OMD-035

LLM Generated Data

Appellant: Lyn Warner

Agency: Board

AG: Daniel Cameron

AAG: John Marcus Jones

Summary

The Board violated the Act by discussing matters not part of the special meeting agenda. The Board failed to provide proper notice for engaging in budgetary discussions during the special meeting, which violated the Act. Additionally, the Board's response to the complaint was untimely and violated the Act. The Board did comply with the scheduling and notice requirements for special meetings, but failed to adhere to the limitations on discussions set by the Act. The decision found that an email complaint can be considered a 'written complaint' under KRS 61.846(1) if submitted to the presiding officer of a public agency.

Cited Opinions

  • 18-OMD-163: F

    The decision discusses that an email complaint can be considered a 'written complaint' under KRS 61.846(1) if submitted to the presiding officer of a public agency.

  • 18-OMD-212: O

    The decision modifies previous rulings to state that there are no limitations on the manner of submission for a written complaint under KRS 61.846(1).

  • 06-OMD-68: O

    The decision is cited for the agency admitting to a procedural error regarding a complaint submission.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;John Marcus Jones,Assistant Attorney General 

Open Meetings Decision 

On February 11, 2020, Lyn Warner ("Appellant") emailed a complaint to Board Chairman Jim Wurth, at his official Kentucky Schools email address, in which she alleged the Board violated the Act by failing to pre-announce a special meeting on the Board website and in editions of The Mayfield Messenger . Appellant also alleged that the Board violated the Act by failing to list "Budget" on the special meeting agenda, but discussed the item during the special meeting. Having received no response to the emailed complaint, Appellant initiated this appeal on February 18, 2020. 

The Board responded to the appeal, stating that the Board Chairman responded to the complaint on February 19, 2020 after learning of its existence through this appeal. The Board argued that the appeal should be dismissed because Appellant failed to comply with the requirements of KRS 61.846(1), stating it "does not waive the requirement of a written complaint and does not accept e-mailed submissions regarding allegations of violations of the [Act]." 

Regarding the allegations, the Board stated it complied with all special meeting notice requirements, and provided emails and exhibits for verification. The Board showed that it sent timely notice to The Mayfield Messenger , but stated that it could not control whether the media elects to announce the meeting. The Board showed that it posted its notice and agenda in conspicuous places, but argued that the Act does not require posting on websites. Finally, the Board argued that the special meeting agenda item, "XV. Plan Agenda for next January, 2020 Board Meeting" was "sufficiently specific to provide the public with fair notice that matters typically contained in the agenda for monthly meetings would be discussed, including but not limited to budgetary...matters[.]" 

A Written Complaint Submitted Via Email to the Presiding Officer of a Public Agency Complies with KRS 61.846(1)

The Board's primary argument is that complaints submitted via email to a presiding officer do not comply with KRS 61.846(1) because emails are not "written complaints." For authority, the Board relies on footnote 2 in 18-OMD-163. There, this Office opined that an email did not constitute a "written complaint," but the agency waived its argument that the complaint was deficient because the agency responded to the email. Id . Therefore, this Office found that discussion of "this procedural issue" was "unwarranted." Id . However, in 18-OMD-212, this Office simply stated "KRS 61.846(1) requires a complaining party to 'submit a written complaint to the presiding officer of the public agency,' but places no limitations on the manner of submission." With its own footnote, 18-OMD-212 modified all previous decisions by this Office that stated otherwise. 18-OMD-212 n. 1. In reaching that conclusion, this Office cited a footnote in 06-OMD-68. There, this Office would not "belabor the issue" because the agency admitted this to be a procedural error. 06-OMD-68 n. 3. 

This Office will now explain, based on the statutory text as written, that a "written complaint" may be submitted to the presiding officer of a public agency by email. 

Prior to seeking enforcement of the Open Meetings Act to this Office, "[t]he person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation." KRS 61.846(1). The statute does not define "written complaint." However, "the plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source." 

Revenue Cabinet v. O'Daniel , 153 S.W.3d 815, 819 (Ky. 2005) (quotations omitted). The plain meaning of "written complaint" is that the complaint be in writing -- i.e., in any written form and not orally communicated. Contrary to an oral complaint, the difference between a letter and an email is not that one is a writing and the other is not, rather, it is the means of transmitting the writing to another person. Therefore, the question is not whether an email is a "written complaint." Rather, the question is how must a person "submit a written complaint to the presiding officer"? On this question, KRS 61.846(1) is silent. 

When construing statutes, the courts and this Office "presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes." 

Shawnee Telecom Resource, Inc. v. Brown , 354 S.W.3d 542, 551 (Ky. 2011). Only when a statute is silent or ambiguous will this Office "resort to extrinsic aids such as the statute's legislative history [or] the canons of construction[.]" Id .; see also 

Travlers Indem. Co . v. Reker , 100 S.W.3d 756, 764 (Ky. 2003). KRS 61.846(1) only requires a written complaint to be submitted to the presiding officer. However, the word "submit" means "to present or propose to another for review, consideration, or decision," according to Merriam-Webster's Dictionary. Thus, the plain meaning of the word "submit" provides no direct guidance on how to transmit the written complaint to the presiding officer. Indirectly, however, the expansive meaning of the word "submit" indicates that transmission of the written complaint can occur by email. 

Looking to the Open Records Act, a comparable statute, KRS 61.872(2) provides that the official custodian of records "may require" a written application "be hand delivered, mailed, or sent via facsimile." KRS 61.872(2)(a). The records custodian may also require the written application be sent by email. KRS 61.872(2)(c). It is instructive that the General Assembly granted a public agency's record custodian the discretion in how to accept written applications under the Open Records Act, but declined to grant the same discretion to the presiding officer of a public agency in accepting a written complaint under the Open Meetings Act. Likewise, in KRS 61.823(4), the General Assembly has provided the means by which agency members and the media may receive notice of a special meeting. The agency is required to transmit this notice via mail or facsimile. KRS 61.823(4)(a). However, agency members or the media, in their discretion, may elect to receive such notice by email by filing a written request to receive notice via email. KRS 61.823(4)(b). Here, the General Assembly has demonstrated it is willing to grant discretion over the means of receiving written notice to agency members and the media. It has not provided the discretion to presiding officers of public agencies in how they will accept written complaints. Based on these statutes, it is clear that if the General Assembly wants to give an agency such discretion, it knows how to do so. See e.g. 

Hearn v. Commonwealth , 80 S.W.3d 432, 438 (Ky. 2002) ("it is clear that the Legislature knows how to expressly provide" for something when it wants to). 

Of course, if the presiding officer never receives the written complaint then it has not been submitted to him. But Appellant has provided proof that she sent her written complaint to the Board's presiding officer at his official school board email account and the presiding officer has not argued that he did not receive the email. Instead, the Board argued it was not required to respond to written complaints via email and failed to issue any response until after this appeal was initiated. As such, its response was untimely and violated the Act. KRS 61.846(1) (requiring the public agency to notify the complainant whether it will remedy the complaint within three business days after receipt of the complaint.) 

The Board Complied with the Scheduling and Notice Requirements for Special Meetings

KRS 61.823 provides in relevant part: 

(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. 

(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . . 

(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.

The record establishes that the Board issued notices and agendas that complied with the content requirements of KRS 61.823(3). Presuming The Mayfield Messenger elected to receive notices of special Board meetings via email pursuant to KRS 61.823(4)(b), the record shows that the notice and agenda were timely delivered to the media entity. The Board provided evidence that it posted the notice and agenda at conspicuous locations, per KRS 61.823(4)(c). And although such requirement may be useful in the modern era, KRS 61.823(4)(c) does not require an agency to post anything on its website and this Office must enforce the text of a statute as written--not based on policy preferences. Accordingly, the Board met its burden of proof that it complied with the notice requirements of KRS 61.823. 

The Board Violated the Act by Discussing Matters Not Part of the Special Meeting Agenda

"Discussions and action at the [special] meeting shall be limited to items listed on the agenda in the notice." KRS 61.823(3). In her written complaint to the Board, Appellant objected to the Board's discussion of the budget because the agenda did not indicate that any budgetary matters would be discussed. The Board argued that agenda item "XV. Plan Agenda for next January, 2020 Board Meeting" authorized the Board to discuss budgetary matters because it was "sufficiently specific to provide the public with fair notice that matters typically contained in the agenda for monthly meetings would be discussed[.]" But that agenda item simply provided notice that the Board would plan an agenda for its next meeting, not that it would actively discuss the substance of the topics that would appear on that next agenda. If budgetary discussions extended beyond mere discussion of whether the budget should appear on the next January 2020 meeting agenda, the Board failed to provide proper notice it would engage in these discussions and, therefore, violated the Act. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-038

LLM Generated Data

Appellant: William Bell

Agency: the Board

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Board violated the Act by failing to provide access to records that should exist based on the appellant's request. The decision emphasizes that the Act only regulates access to records that are prepared, owned, used, in the possession of, or retained by a public agency. The Board's response to the request was found to be deficient and in violation of the Act. The decision also clarifies that requests for information, as opposed to requests for public records, need not be honored under the Open Records Law.

Cited Opinions

  • 11-ORD-074: F

    The decision finds that the Board's disposition of the request violated the Act by failing to provide access to records that are prepared, owned, used, in the possession of, or retained by a public agency.

  • 04-ORD-144: O

    Cited to explain the purpose of the Open Records Law, which is to provide access to public records that are not exempt by law.

  • 00-ORD-76: O

    Referenced to establish that requests for information, as opposed to requests for public records, need not be honored.

  • 04-ORD-080: O

    Cited to support the notion that requests for information do not need to be honored under the Open Records Law.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Board violated the Act in the disposition of William Bell's ("Appellant") January 30, 2020, request for a copy of the following records "pertaining to the 12 x 30 dwelling that was purchased by the [Board] on September 18, 2015": 

a. [T]he most current [or latest] Effective Facility Plan or amendment that lists this property [dwelling] as surplus to educational need [on or about July 26, 2017]; 

b. [T]he request, required to be made in writing to the Chief State School officer to dispose of this property [dwelling]; 

c. [T]he Official approval that was granted; 

d. [T]he appraisal of this property [dwelling] by a qualified appraiser; 

e. [T]he document indicating the [Board's] acceptance or rejection of any or all bids; 

f. [A]ll bids that were received and considered[;] 

g. [The Board's] "advertisement," advertising this property [dwelling] for sale and disposal as directed by Policy 04.08: 

 

In a timely response, Board attorney Jesse E. Wright notified Appellant that he could inspect a document responsive to request "a," at the Office of the Board of Education during regular business hours. The Board further advised Appellant that minutes of Board meetings containing information responsive to items "1" and "2" of the request were available for inspection during regular business hours. However, with regard to items "b" through "g" and item "3" of the request, the Board simply stated, "there are no documents responsive to your request." Lastly, the Board noted that "interrogatories" contained in the request, which did not ask for public records, were not properly framed requests and, therefore, it was not providing any response. 1Based upon the following, this Office finds that the Board's disposition of Appellant's January 30, 2020, request violated the Act. 

The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot provide a requester access to a nonexistent record. See 

Bowling v. Lexington-Fayette Urban Cnty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005) ("The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies."). Once a public agency states affirmatively that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. If the requester establishes a prima facie case that records should exist, "then the agency may also be called upon to prove that its search was adequate." 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n. 3 (Ky. 2013) (citing Bowling , 172 S.W.3d at 341). Of course, "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. 

Here, Appellant made a prima facie showing that records should exist by submitting a copy of the Board's policies regarding the sale of school property and further stating that the Board had sold the subject property to a named person. According to a cited policy, a copy of which Appellant provided, the Board may sell property "no longer needed for public school purposes" through "closed sealed bids, public auction, or sale for at least the fair market value established by a certified appraisal." Disposal of School Property, Board Policy 04.8. In this appeal, the Board acknowledged the "12 x 30 wooden shed was, in fact, sold ... for fair market value established by appraisal ," but claimed that because "[t]he 12 x 30 wooden shed is not real property; the referenced policy sections are inapplicable to the sale." Appellant disputes that assertion, arguing that Board Policy 04.08 AP.1 applies, which provides additional procedures for the sale of real property. 

Regardless of whether the building is "real property" and Board Policy 04.08 AP. 1 should apply, the Board has now affirmatively stated the building "was sold for fair market value established by appraisal." At a minimum, the Board must possess a document responsive to item "d" of Appellant's request ("the appraisal of this property [dwelling] by a qualified appraiser"). The Board violated the Act in failing to either provide Appellant with a copy as requested or provide a statutory basis for denial in writing. KRS 61.880(1). 

With regard to Appellant's remaining requests for documents, the Board's admission that it sold the building and the Board's policies for selling property constitute a prima facie showing that additional responsive records could exist. In 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals declared that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence." If the Board chose to sell the property based solely on the appraisal then additional responsive documents may not exist. This Office plays no role in determining whether such a decision complied with the applicable Board policies. See generally KRS 61.880. If, however, that is the reason for the nonexistence of additional documents responsive to Appellant's other requests, the Board must still explain the adequacy of its search and the reason why no additional documents exist. See KRS 61.880(1); KRS 61.880(2)(c); Eplion , 354 S.W.3d at 604; City of Fort Thomas , 406 S.W.3d at 848 n.3. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3 (citing OAG 76-375); 04-ORD-080.



 

20-ORD-037

LLM Generated Data

Appellant: William Bell

Agency: Graves County School District

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Graves County School District did not violate the Open Records Act in the disposition of William Bell's requests. The District complied with the Act by making the requested records available for inspection during regular business hours. The decision found that the District did not violate the Act in regard to the requests made by William Bell.

Cited Opinions

  • 04-ORD-040: F

    The decision is cited to explain that the Act does not require public agencies to gather and supply information not regularly kept as part of its records, and that a public agency cannot provide access to a record that does not exist.

  • 16-ORD-021: F

    The decision is cited to show that the District complied with the Act by making requested records available for inspection during regular business hours.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the District violated the Act in the disposition of two requests by William Bell ("Appellant") dated January 21 and 31, 2020. For the reasons that follow, the Graves County School District did not violate the Act. 

Appellant's first request on January 21, 2020, posed three questions to the District: 

1. In reference to [a certain structure:] When was this building declared Surplus Property, and was it advertised and sold at public auction? 

2. The Mayfield City Clerks [ sic ] Office has verified that Payroll taxes for the first and second quarter of 2017, and the entire 2016 periods have been paid. Could you disclose the amounts and when those payments were made? 

3. According to [a board member,] money in the amount of $ 30,000 had been transferred to the Althelic [ sic ] Departmment [ sic ] yearly.... Is there a copy of the minutes from that meeting seven years ago and is [ sic ] there receipts for these yearly transfers? I request copies if this in fact has occurred.

 

The District issued a timely response on January 22, 2020. 

In response to part 1 of the request, the District observed that the request did "not identify records" and stated that "the Act does not mandate responses to interrogatory questions." In response to part 2, the District reiterated this statement and added that the Act does not require agencies "to compile or otherwise create documents," but "financial records containing the information requested are available for public inspection at the office of the Graves County Board of Education during normal business hours." In response to part 3, the District stated that meeting minutes were available for inspection at the same location and "[t]here are no other responsive documents available for production." 

With regard to the "interrogatory questions," the Act does not require public agencies to honor requests for information, but only requests for records. KRS 61.872; 

Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013) ("The ORA does not dictate that public agencies must gather and supply information not regularly kept as part of its records.") As to the financial records and meeting minutes, the District complied with the Act by making them available for inspection during regular business hours. KRS 61.872(3)(a). 

Regarding the requested "receipts," a public agency cannot provide a requester access to a record that does not exist. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005) ("The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies."). Once an agency affirmatively states that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. The District's statement that there were no other responsive documents was "tantamount to an affirmative statement that the remaining records requested [did] not exist." 04-ORD-040. Since Appellant has made no prima facie showing that the "receipts" do exist, this Office finds that the District did not violate the Act in regard to Appellant's first request. 

Appellant's second request on January 31, 2020, sought "records verifying the funding (to include the amounts of monies involved) of and for the Athletic Department with Education Appropriated funds (Federal, State and Local) for FY's 2018, 2019 and 2020." Additionally, he requested "a copy of the policy, regulations or laws governing the management and funding of the Athletic Department as amended by the Graves County Board of Education." In a timely response on February 3, 2020, the District stated that "Munis 1reports and Board Policies are available for inspection at the Office of the Board of Education during normal business hours." 

Although Appellant requested "a copy" of the policy in question, he did not specifically request the District mail him copies. The District complied with the Act by making the requested records available for inspection during regular business hours. KRS 61.872(3). Accordingly, the District did not violate the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Munis" is the brand name of a financial recordkeeping software. See, e.g. , 16-ORD-021.



 

20-ORD-038

LLM Generated Data

Appellant: William Bell

Agency: the Board

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The decision finds that the Board violated the Act by failing to provide access to records requested by William Bell. The Board's response was deemed deficient as it did not provide the requested records or a statutory basis for denial. The decision emphasizes that the Open Records Law is meant to provide access to public records, not just information. The Board's admission that it sold the building and its policies for selling property constituted a prima facie showing that additional responsive records could exist, requiring further explanation from the Board.

Cited Opinions

  • 11-ORD-074: F

    The decision finds that the Board's disposition of the request violated the Act by failing to provide access to records that are prepared, owned, used, in the possession of, or retained by a public agency.

  • 04-ORD-144: O

    Cited to explain the purpose of the Open Records Law, which is to provide access to public records that are not exempt by law.

  • 00-ORD-76: O

    Referenced to establish that requests for information, as opposed to requests for public records, need not be honored under the Open Records Law.

  • 04-ORD-080: O

    Cited to support the notion that the Open Records Law is intended to provide access to public records, not just information.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the Board violated the Act in the disposition of William Bell's ("Appellant") January 30, 2020, request for a copy of the following records "pertaining to the 12 x 30 dwelling that was purchased by the [Board] on September 18, 2015": 

a. [T]he most current [or latest] Effective Facility Plan or amendment that lists this property [dwelling] as surplus to educational need [on or about July 26, 2017]; 

b. [T]he request, required to be made in writing to the Chief State School officer to dispose of this property [dwelling]; 

c. [T]he Official approval that was granted; 

d. [T]he appraisal of this property [dwelling] by a qualified appraiser; 

e. [T]he document indicating the [Board's] acceptance or rejection of any or all bids; 

f. [A]ll bids that were received and considered[;] 

g. [The Board's] "advertisement," advertising this property [dwelling] for sale and disposal as directed by Policy 04.08: 

In a timely response, Board attorney Jesse E. Wright notified Appellant that he could inspect a document responsive to request "a," at the Office of the Board of Education during regular business hours. The Board further advised Appellant that minutes of Board meetings containing information responsive to items "1" and "2" of the request were available for inspection during regular business hours. However, with regard to items "b" through "g" and item "3" of the request, the Board simply stated, "there are no documents responsive to your request." Lastly, the Board noted that "interrogatories" contained in the request, which did not ask for public records, were not properly framed requests and, therefore, it was not providing any response. 1Based upon the following, this Office finds that the Board's disposition of Appellant's January 30, 2020, request violated the Act. 

The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot provide a requester access to a nonexistent record. See 

Bowling v. Lexington-Fayette Urban Cnty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005) ("The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies."). Once a public agency states affirmatively that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. If the requester establishes a prima facie case that records should exist, "then the agency may also be called upon to prove that its search was adequate." 

City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n. 3 (Ky. 2013) (citing Bowling , 172 S.W.3d at 341). Of course, "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. 

Here, Appellant made a prima facie showing that records should exist by submitting a copy of the Board's policies regarding the sale of school property and further stating that the Board had sold the subject property to a named person. According to a cited policy, a copy of which Appellant provided, the Board may sell property "no longer needed for public school purposes" through "closed sealed bids, public auction, or sale for at least the fair market value established by a certified appraisal." Disposal of School Property, Board Policy 04.8. In this appeal, the Board acknowledged the "12 x 30 wooden shed was, in fact, sold ... for fair market value established by appraisal ," but claimed that because "[t]he 12 x 30 wooden shed is not real property; the referenced policy sections are inapplicable to the sale." Appellant disputes that assertion, arguing that Board Policy 04.08 AP.1 applies, which provides additional procedures for the sale of real property. 

Regardless of whether the building is "real property" and Board Policy 04.08 AP. 1 should apply, the Board has now affirmatively stated the building "was sold for fair market value established by appraisal." At a minimum, the Board must possess a document responsive to item "d" of Appellant's request ("the appraisal of this property [dwelling] by a qualified appraiser"). The Board violated the Act in failing to either provide Appellant with a copy as requested or provide a statutory basis for denial in writing. KRS 61.880(1). 

With regard to Appellant's remaining requests for documents, the Board's admission that it sold the building and the Board's policies for selling property constitute a prima facie showing that additional responsive records could exist. In 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals declared that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence." If the Board chose to sell the property based solely on the appraisal then additional responsive documents may not exist. This Office plays no role in determining whether such a decision complied with the applicable Board policies. See generally KRS 61.880. If, however, that is the reason for the nonexistence of additional documents responsive to Appellant's other requests, the Board must still explain the adequacy of its search and the reason why no additional documents exist. See KRS 61.880(1); KRS 61.880(2)(c); Eplion , 354 S.W.3d at 604; City of Fort Thomas , 406 S.W.3d at 848 n.3. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 The purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, requests for information as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3 (citing OAG 76-375); 04-ORD-080.



 

20-ORD-037

LLM Generated Data

Appellant: William Bell

Agency: Graves County School District

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Graves County School District did not violate the Open Records Act in the disposition of William Bell's requests. The District provided explanations for not fulfilling certain parts of the requests, such as the Act not requiring responses to interrogatory questions and the unavailability of certain records. The decision emphasizes that public agencies are only required to provide access to existing records and are not obligated to create new documents. The District's responses were found to be in compliance with the Act, and therefore, no violation occurred.

Cited Opinions

  • 04-ORD-040: O

    The decision is cited to establish that the Act does not require public agencies to honor requests for information, but only requests for records. It also clarifies that a public agency cannot provide access to a record that does not exist.

  • 16-ORD-021: F

    Referenced to show that the District complied with the Act by making requested records available for inspection during regular business hours.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether the District violated the Act in the disposition of two requests by William Bell ("Appellant") dated January 21 and 31, 2020. For the reasons that follow, the Graves County School District did not violate the Act. 

Appellant's first request on January 21, 2020, posed three questions to the District: 

1. In reference to [a certain structure:] When was this building declared Surplus Property, and was it advertised and sold at public auction? 

2. The Mayfield City Clerks [ sic ] Office has verified that Payroll taxes for the first and second quarter of 2017, and the entire 2016 periods have been paid. Could you disclose the amounts and when those payments were made? 

3. According to [a board member,] money in the amount of $ 30,000 had been transferred to the Althelic [ sic ] Departmment [ sic ] yearly.... Is there a copy of the minutes from that meeting seven years ago and is [ sic ] there receipts for these yearly transfers? I request copies if this in fact has occurred.

The District issued a timely response on January 22, 2020. 

In response to part 1 of the request, the District observed that the request did "not identify records" and stated that "the Act does not mandate responses to interrogatory questions." In response to part 2, the District reiterated this statement and added that the Act does not require agencies "to compile or otherwise create documents," but "financial records containing the information requested are available for public inspection at the office of the Graves County Board of Education during normal business hours." In response to part 3, the District stated that meeting minutes were available for inspection at the same location and "[t]here are no other responsive documents available for production." 

With regard to the "interrogatory questions," the Act does not require public agencies to honor requests for information, but only requests for records. KRS 61.872; 

Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013) ("The ORA does not dictate that public agencies must gather and supply information not regularly kept as part of its records.") As to the financial records and meeting minutes, the District complied with the Act by making them available for inspection during regular business hours. KRS 61.872(3)(a). 

Regarding the requested "receipts," a public agency cannot provide a requester access to a record that does not exist. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005) ("The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies."). Once an agency affirmatively states that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. The District's statement that there were no other responsive documents was "tantamount to an affirmative statement that the remaining records requested [did] not exist." 04-ORD-040. Since Appellant has made no prima facie showing that the "receipts" do exist, this Office finds that the District did not violate the Act in regard to Appellant's first request. 

Appellant's second request on January 31, 2020, sought "records verifying the funding (to include the amounts of monies involved) of and for the Athletic Department with Education Appropriated funds (Federal, State and Local) for FY's 2018, 2019 and 2020." Additionally, he requested "a copy of the policy, regulations or laws governing the management and funding of the Athletic Department as amended by the Graves County Board of Education." In a timely response on February 3, 2020, the District stated that "Munis 1reports and Board Policies are available for inspection at the Office of the Board of Education during normal business hours." 

Although Appellant requested "a copy" of the policy in question, he did not specifically request the District mail him copies. The District complied with the Act by making the requested records available for inspection during regular business hours. KRS 61.872(3). Accordingly, the District did not violate the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Munis" is the brand name of a financial recordkeeping software. See, e.g. , 16-ORD-021.



 

20-OMD-040

LLM Generated Data

Appellant: KYMEA Board of Directors

Agency: KYMEA

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KYMEA violated the Open Meetings Act by excluding the public from the ARPC meeting and regular KYMEA meeting based on improper justifications. However, KYMEA did not violate the Act by failing to publish notice of its meetings, and it made the schedule of meetings available to the public. The compliance of KYMEA's video teleconferencing procedures and the accuracy of the ARPC's report involve questions of fact that the Office cannot resolve. There is insufficient evidence to determine if KYMEA violated KRS 61.810(2) by participating in secret telephonic conferences.

Cited Opinions

  • 11-OMD-092: O

    This decision is cited to show that the Office was unable to determine the exact time a meeting began with conflicting narratives.

  • 00-OMD-171: O

    This decision is cited to show that contacting city commissioners to confirm they did not want an item on the agenda was not considered a discussion of public business.

  • 13-OMD-118: O

    This decision is cited to show that a discussion of whether to reschedule a special meeting did not amount to a substantive discussion that would implicate the Open Meetings Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether the KYMEA 1Board of Directors violated provisions of the Act during its December 18, 2019, meeting for the reasons alleged in Appellant's written complaint, directed to KYMEA Chairman Ron Herd in accordance with KRS 61.846(1). Because the Appellant has acknowledged that KYMEA successfully resolved two items in her original written complaint, those items will not be discussed in this decision. In substance, Appellant's remaining allegations are that: 

1) Two committee meetings, one conducted shortly before the December 18, 2019, KYMEA regular meeting and one conducted after, were not publicly noticed; 

2) The All Requirements Projects Committee ("ARPC") meeting on December 18, 2019, was improperly closed to the public; 

3) KYMEA improperly conducts meetings via video teleconferencing because members of the public cannot always see and hear KYMEA members participating remotely; 

4) KYMEA improperly relied on provisions of the Open Records Act to close a portion of the regular meeting and KYMEA failed to cite the specific federal law that required the meeting to be closed pursuant to KRS 61.810(1)(k) when it invoked that exception; 

5) KYMEA conducts telephonic conference calls with a quorum present (or collectively constituting a quorum) and discusses public business without providing notice to the public; and 

6) The ARPC's report from its August 22, 2019 meeting, presented to the full KYMEA Board on December 18, 2019, did not accurately reflect the discussions of the committee.

Counsel for KYMEA responded timely to Appellant's complaint pursuant to KRS 61.846(1). In substance, KYMEA countered Appellant's assertions as follows: 

1) KYMEA establishes its regular meeting locations, dates, and times pursuant to resolutions. The date for the meeting in question had been established by resolution on October 24, 2018, and this resolution was published in the newspaper and on the KYMEA website. Notices of committee meetings (or "workshops") are also posted on the KYMEA website. 

2) The ARPC meeting was closed because the members were discussing "preliminary recommendations and preliminary memorand[a] expressing the opinions of the KYMEA staff . . ." For support, KYMEA relied on KRS 61.878(1)(j). 

3) KRS 61.826 authorizes KYMEA to conduct meetings via video teleconferencing. KYMEA provides notice that the meeting will be conducted via video teleconference at the beginning of the meeting. Remote KYMEA Directors are able to view and hear the Board proceedings and the entire Board is able to see and hear the remote Director when they speak. KRS 61.826 does not require a split screen be maintained "at all times" by the Board and remote Director. 

4) KYMEA specifically sets forth by resolution the reasons for entering into closed session. Because KYMEA routinely disseminates records which are excepted from disclosure to the general public due to their confidentiality, KYMEA cites the Open Records Act exceptions to identify that those records are confidential and therefore not subject to dissemination outside of the closed session. ... 

Regarding the request of invoking KRS 61.810(1)(k), currently KYMEA is involved in a "de-pancaking" proceeding before the Federal Energy Regulatory Commission ("FERC"). Certain information from that proceeding has been determined to be confidential. In an abundance of caution, KYMEA cites KRS 61.810(1)(k) as one of the reasons for entering closed session and has often stated in its meetings that the closed session discussion revolves around that proceeding. In the future, and per Appellant's request, KYMEA will specifically mention the FERC proceeding. 

5) Appellant failed to identify specific telephonic conferences she alleged constituted improper meetings. 

6) KYMEA disputes that the ARPC's report to the full KYMEA did not accurately reflect discussions conducted by the committee.

The Attorney General "shall review the complaint and denial and issue . . . a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." KRS 61.846(2). However, with regard to item 6, the parties have presented widely disparate narratives and this Office is unable to resolve the related factual question regarding the disputed accuracy of the ARPC's report to the KYMEA. See, e.g . 11-OMD-092 (Where this Office was unable to determine the exact time a meeting began with two conflicting narratives of when the meeting began). 

KYMEA provided appropriate notice that committees would meet

Pursuant to KRS 61.820(2), "[a]ll public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." The record on appeal confirms that KYMEA complied with KRS 61.820(2) by providing a schedule of regular meetings pursuant to resolutions, the most recent of which it adopted on October 24, 2018. A copy of the resolution and the minutes of the October 24, 2018, meeting at which KYMEA adopted the resolution are both of record. Appellant does not dispute this fact nor does Appellant dispute that a notice summarizing the resolution appeared in The Courier-Journal on November 7, 2018, or that KYMEA also posts the dates, times, and locations of its committee meetings on its website. 

This Office may not add or subtract from the legislative enactment or discover meanings not reasonably ascertainable from the language used. 

Beckham v. Bd. of Educ. , 873 S.W.2d 575, 577 (Ky. 1994). Likewise, KRS 446.080(4) requires that "[a]ll words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning." KRS 61.820(2) does not provide a technical or particular meaning to the phrase, "made available to the public." Accordingly, this Office must construe it according to common and approved usage. In other words, the Attorney General is not at liberty to construe "made available to the public," to require the specific usage that Appellant proposed as a remedy, i.e. , publication of meeting notices in the local newspapers of KYMEA member communities. KYMEA's method of publishing notice in The Courier-Journal and on its website, as well as posting notice of committee meetings on its website, is sufficient to comply with KRS 61.820. 

KYMEA violated the Act when it excluded the public from the ARPC meeting

KYMEA excluded members of the public from its ARPC meeting on December 18, 2019. The KYMEA argued that it would be reviewing a power point and spreadsheets, as well as discussing information related to "preliminary rate recommendations for FY 2021." It further argued that the ARPC meeting was merely informational and no final action was taken. In support of its position that discussion of preliminary information is permitted in a closed meeting, KYMEA cited KRS 61.878(1)(j), which exempts "preliminary recommendations and preliminary memoranda" from disclosure under the Open Records Act. However, KRS 61.810 provides the only exceptions to the Open Meetings Act. The only exception that references the Open Records Act is contained in KRS 61.810(1)(m), which generally exempts records that relate to potential terrorist attacks or plans to prevent them. There is no provision of KRS 61.810 that permits a public agency to discuss preliminary matters in secret. In fact, almost everything a public agency discusses is by its nature preliminary until a vote to take action on the matter is called. 

KYMEA's additional argument, that no final action was taken, also fails. KRS 61.810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" (Emphasis added.) The fundamental purpose of the Act is to recognize that "[t]he formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800. The text of the Act is clear. If a quorum of members discuss any public business, the provisions of the Act apply. KRS 61.810(1). Likewise, KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." 

The term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." (emphasis added.) Thus, all gatherings of a quorum of the KYMEA committees where they discussed public business, such as "informal presentations," in preparation for a future public meeting, were meetings of a public agency. KRS 61.805(1); KRS 61.810(1). Because KYMEA discussed public business during the ARPC meeting, and excluded the public without invoking an appropriate exemption contained in KRS 61.810, it violated the Act. 

KYMEA complies with KRS 61.826 only if the public can see and hear remote Directors

Appellant's third objection was her inability to hear or see the KYMEA Directors participating by video teleconferencing. Appellant's proposed remedy was for KYMEA to update its equipment to ensure all remote Directors can be seen and heard. 

KRS 61.805(5) defines "Video teleconference" as "one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment." (emphasis added). Noticeably, KRS 61.805(5) uses the word "individuals" and not "members." More specifically, KRS 61.826 establishes the procedures for conducting meetings via video teleconferencing. KRS 61.826(2) requires the public agency to provide notice that a video teleconference will occur. That notice must "[p]recisely identify a primary location of the video teleconference where all members can be seen and heard and the public may attend in accordance with KRS 61.840." KRS 61.826(2)(b) (emphasis added). Although this provision does not explicitly state who shall be able to see and hear the member, the General Assembly answers this question by incorporating KRS 61.840 by reference. KRS 61.840 provides that "all agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings." (emphasis added). Again, the primary purpose of the Act is for public business to be conducted in the open and subject to observation by the public. Because KRS 61.840 requires sufficient accommodations to facilitate "public observation," and the General Assembly has permitted video teleconferencing but not ordinary teleconferencing, it is clear the General Assembly intended the public to be able to see the remote members. 

Although KRS 61.826 does not "require a split screen to be maintained 'at all times' by the Board and the [remote] Director," it does require that the remote Director be visible and audible to the public at all times. Because it is a question of fact as to whether the public can see and hear remote Directors, this Office cannot decide whether the December 18, 2019, video teleconference violated the Act. However, if KYMEA has not adopted procedures to ensure the public can see and hear remote Directors, its failure would be a violation of the Act. 

KYMEA cannot rely on the Open Records Act to close its regular meetings and must invoke an exception established in KRS 61.810 prior to entering closed session

Similar to Appellant's second objection, she further alleges the KYMEA improperly closed a portion of its regular meeting by relying upon KRS 61.878(1)(j). For the reasons stated above, finding this to be a violation in the context of the ARPC meeting, the holding is the same regarding the KYMEA regular meeting. The Open Records Act does not provide KYMEA with additional justification to close its regular meeting to the public. 

However, during the regular meeting KYMEA also invoked KRS 61.810(1)(k), which provides that "[m]eetings which federal or state law specifically require to be conducted in privacy" can be closed to the public. In its response to Appellant's written complaint, KYMEA stated that the discussions during the closed meeting pertained to confidential portions of a pending "de-pancaking" proceeding before the FERC. KYMEA offered to specifically refer to this federal regulatory proceeding in the future prior to discussing the matter in closed session and invoking KRS 61.810(1)(k). On appeal, KYMEA did not provide any further explanation of this federal proceeding or why it required confidentiality. To the extent a federal regulatory body has ordered KYMEA to keep information regarding the proceeding confidential, KYMEA can properly rely on the order to invoke KRS 61.810(1)(k). Because Appellant's notice of appeal specifically requested this Office to review KYMEA's invocation of the Open Records Act in connection to her fourth allegation, and KYMEA has offered to specifically cite the FERC proceeding when discussing these topics in future closed sessions, it is unnecessary to determine whether KYMEA properly invoked KRS 61.810(1)(k). 

There is insufficient evidence in the record to determine whether KYMEA violated KRS 61.810(2)

Appellant's fifth objection alleges that KYMEA conducts telephonic conferences without proper notice, and during these telephonic conferences public business is discussed. KYMEA argued that Appellant failed to identify when the alleged improper telephonic conferences took place. However, it did admit to conducting a telephonic conference on the Monday prior to the December 18, 2019, meeting. KYMEA stated the purpose of this call was to determine if an additional formal meeting of the Executive Committee was necessary prior to the December 18, 2019, regular meeting. KYMEA asserted no actual discussions took place regarding public business, but it occurred merely for the purposes of establishing scheduling. 

KRS 61.810(2) provides that "any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section." However, it further provides that "nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues." In construing KRS 61.810(1) and (2), the Kentucky Supreme Court has declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act." 

Yeoman v. Commonwealth of Ky., Health Policy Board , 983 S.W.2d 459, 474 (Ky. 1998). 

The Court in Yeoman further observed that for a meeting to take place within the meaning of the Act, "public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action." Id. Taking action "is defined by the Act as 'a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body.' KRS 61.805(3)." Id. See 00-OMD-171 (holding that City Manager contacting city commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business"); 13-OMD-118 (discussion of whether to reschedule a special meeting did not amount to a "substantive discussion" that would implicate the Act). Accordingly, the single conference call that KYMEA acknowledged it conducted did not violate KRS 61.810(1) or (2) if the only purpose or topic of discussion was "to determine if a formal meeting was required" and if so, what time it should be held. With no evidence to rebut KYMEA's assertions that the telephonic conference occurred merely for scheduling purposes, this Office finds no violation of the Act with respect to Appellant's fifth objection. 

Conclusion 

In summary, KYMEA violated the Act when it relied on KRS 61.878(1)(j) as the authority for excluding the public from the ARPC meeting and regular KYMEA meeting. KYMEA did not violate the Act by failing to publish notice of its meetings and committee meetings in various local newspapers, and it has made the schedule of these regular meetings and committee meetings available to the public. Whether KYMEA's video teleconferencing procedures comply with the Act, and whether the ARPC's report to the KYMEA was accurate involve questions of fact that this Office cannot arbitrate. Nevertheless, KYMEA is required under the Act to ensure that members of the public can both see and hear remote Directors participating via video teleconferencing. Finally, there is insufficient evidence in the record to determine if KYMEA violated KRS 61.810(2) by participating in secret telephonic conferences. 

Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 The record on appeal establishes that KYMEA was created in September 2015 pursuant to the Kentucky Interlocal Cooperation Act, KRS 65.210 through 65.300. It has eleven members, all of which are Kentucky municipal energy distributors located throughout the Commonwealth.



 

20-ORD-041

LLM Generated Data

Appellant: Charity Bird

Agency: OCJE

AG: Daniel Cameron

AAG: James M. Herrick

Summary

OCJE was found to have violated the Open Records Act by failing to respond to portions of the appellant's request, omitting pages of meeting minutes without explanation, and failing to advise the appellant that it was not the custodian of some of the records requested. The decision clarifies the agency's obligations in responding to requests and highlights the specific instances where OCJE fell short in fulfilling those obligations.

Cited Opinions

  • 08-ORD-037: O

    This decision addresses the violation of the Open Records Act by OCJE in response to a request for records relating to the Meade County River Port. It clarifies the agency's obligations in responding to requests and the specific issues with the handling of the appellant's request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether OCJE violated the Act in the disposition of a December 17, 2019, request by attorney Charity Bird ("Appellant") for copies of certain records relating to the Meade County River Port. For the reasons that follow, this Office finds that OCJE violated the Act in certain respects. 

In her request, Appellant stated that she was seeking records "whether in possession of the Fiscal Court, the Meade County Riverport Authority, the Meade County-Brandenburg Industrial Development Authority, or otherwise within your possession, custody, or control." Of those three entities, OCJE was the custodian of records for only the Meade County Fiscal Court. In its response, however, OCJE did not explain that fact, but merely provided Fiscal Court records and stated, "I have included the documentations that are available per your request." 

A public agency is not "statutorily obligated to attempt to honor a request for records of another agency." 08-ORD-037. See also 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005) (public agency has no duty to provide a record that does not exist in its possession or control). Nevertheless, it was OCJE's duty to inform the requester in clear terms that it did not have the records. In failing to advise Appellant that it was not the custodian of records for the Meade County Riverport Authority or the Meade County-Brandenburg Industrial Development Authority, OCJE violated the Act. 

Appellant's request consisted of ten numbered parts, four of which are at issue in this appeal. These four shall be analyzed individually. 

1. "Copies of all minutes and attachments from all meetings at which the use or lease of the Meade County Riverport was discussed from December 17, 2018 forward." 

With regard to these records, Appellant argues that OCJE did not provide fiscal court meeting minutes "for the time period of March 23, 2019, through September 30, 2019," or for meetings that occurred on December 10 and 19, 2019. In response, OCJE argues that the December 10 and 19 meeting minutes did not yet exist at the time of the request. A public agency cannot provide a requester access to a record that does not exist. See Bowling , 172 S.W.3d at 341. Once an agency affirmatively states that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. Appellant has made a prima facie showing that meeting minutes should exist because these meetings did occur. 

OCJE's explanation that the meeting minutes were not finalized and approved until the first meeting of January 2020 is a reasonable explanation for their nonexistence. Nevertheless, OCJE violated the Act by failing to inform Appellant in its official response to the request that those minutes did not exist. 

As to the minutes from March 23 to September 30, 2019, OCJE explains that they were unresponsive to the request because "the use or lease of the Meade County Riverport" was not discussed at those meetings. Appellant has submitted no proof to the contrary. Accordingly, OCJE did not violate the Act as to those minutes. 

Appellant also argued that the fiscal court minutes she received "appear to be missing pages." From the copies attached to the appeal, it appears that the minutes provided for March 12, October 1, and November 12, 2019, were indeed incomplete. Since Appellant requested copies of "all minutes" from the meetings in question, and OCJE omitted pages with no legal or factual explanation, OCJE failed to meet its burden and violated the Act. KRS 61.880(2)(c) ("The burden of proof in sustaining the action shall rest with the agency"). 

2. "Copies of all agendas and any attachments from all meetings at which the use or lease of the Meade County River Port was discussed from December 17, 2019 forward." 

With regard to this portion of the request, Appellant argues that "only March 12, October 1, October 15, November 12, December 10, and December 19 agendas were provided for Meade County Fiscal Court." As in the case of the meeting minutes, OCJE asserts that the remaining agendas did not pertain to meetings where the topic was discussed. Accordingly, those records were unresponsive and OCJE did not violate the Act by not providing them. 

3. "Copies of all correspondence, including but not limited to email correspondence and text messages related to 1-8 above." 

The phrase "1-8 above" refers to the first eight portions of Appellant's request, which consisted of the first two portions at issue on appeal as well as the following: 

Copies of all minutes from all meetings and any attachments at which the board, including but not limited to individual board members, of the Meade County Riverport Authority were discussed from December 17, 2018 forward; 

Copies of all agendas and any attachments at which the board, including but not limited to individual board members, of the Meade County Riverport Authority were discussed from December 17, 2018 forward; 

Copies of all minutes from all meetings and any attachments at which the notice and bidding procedures for the use or lease of the Meade County River Port was discussed from December 17, 2018 forward; 

Copies of all agendas and any attachments of all meetings at which the notice and bidding procedures for the use or lease of the Meade County River Port was discussed from December 17, 2018 forward; 

Copies of all Options and any documents related thereto (including but not limited to any resolutions or minutes), involving Nucor or any of its subsidiaries or affiliates, including but not limited to Greenland Acquisition Company, Inc., Nucor Steel Brandenburg, or Nucor Steel Gallatin LLC (collectively, "Nucor"); [and] 

Copies of all documents reflecting in any way any advertising or bidding processes that have been followed with respect to Nucor[.]

Appellant argues that OCJE provided no e-mails or text messages "despite their existence," and claims to have "seen" one e-mail that is responsive to the request. 

The meaning of the phrase "related to 1-8 above" is inherently ambiguous, given the manner in which the first eight portions of the request were expressed. OCJE interpreted the request as seeking correspondence related to the requested documents, and Appellant has not contradicted this interpretation. 

In its response to this appeal, OCJE stated that eight pages of responsive records "may have been inadvertently left out of [its] response," and provided those eight pages as an attachment. 1They consist of e-mails and a fax confirmation sheet reflecting the transmittal of meeting notices and agendas. As to these records, this portion of the appeal is moot. 40 KAR 1:030 § 6. 

Nevertheless, in terms of the request, the eight pages OCJE belatedly provided relate only to meeting agendas. As stated above, if OCJE possessed no records responsive to the other subparts of this request, it was required to state that fact so Appellant could make a prima facie case that responsive records did exist. Because it failed to affirmatively deny the existence of responsive records, OCJE violated the Act by failing to fully respond to the request. 

4. "All correspondence, including email correspondence, that relates to (a) any impact upon future use of the river port as a result of the planned location of a steel mill operated by Nucor, and (b) any agreement with, or between, Nucor and CGB." 

With regard to this portion of the request, Appellant contends that "only one piece of correspondence was produced and email correspondence was not produced at all." In response, OCJE asserts that the document produced was the only responsive correspondence of any kind in its possession. In the absence of evidence to the contrary, there is no indication that OCJE violated the Act as to this portion of the request. 

Conclusion 

Accordingly, this Office finds that OCJE violated the Act by failing to respond to portions of Appellant's request and omitting pages of meeting minutes without explanation. OCJE further violated the Act by failing to advise Appellant that it was not the custodian of some of the records requested. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Because Appellant did not describe the one e-mail she claimed to have seen, it is unknown whether it was included among those provided by OCJE.



 

20-ORD-041

LLM Generated Data

Appellant: attorney Charity Bird

Agency: OCJE

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The OCJE violated the Open Records Act by failing to respond to portions of the appellant's request and omitting pages of meeting minutes without explanation. Additionally, the OCJE failed to advise the appellant that it was not the custodian of some of the records requested. The decision does not indicate a violation of the law, but rather a violation of the procedural requirements of the Open Records Act.

Cited Opinions

  • 08-ORD-037: O

    The decision states that a public agency is not statutorily obligated to attempt to honor a request for records of another agency, but it is obligated to inform the requester if it does not have the records. The decision also discusses the requirements for providing meeting minutes, agendas, and correspondence in response to a records request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The question presented in this appeal is whether OCJE violated the Act in the disposition of a December 17, 2019, request by attorney Charity Bird ("Appellant") for copies of certain records relating to the Meade County River Port. For the reasons that follow, this Office finds that OCJE violated the Act in certain respects. 

In her request, Appellant stated that she was seeking records "whether in possession of the Fiscal Court, the Meade County Riverport Authority, the Meade County-Brandenburg Industrial Development Authority, or otherwise within your possession, custody, or control." Of those three entities, OCJE was the custodian of records for only the Meade County Fiscal Court. In its response, however, OCJE did not explain that fact, but merely provided Fiscal Court records and stated, "I have included the documentations that are available per your request." 

A public agency is not "statutorily obligated to attempt to honor a request for records of another agency." 08-ORD-037. See also 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005) (public agency has no duty to provide a record that does not exist in its possession or control). Nevertheless, it was OCJE's duty to inform the requester in clear terms that it did not have the records. In failing to advise Appellant that it was not the custodian of records for the Meade County Riverport Authority or the Meade County-Brandenburg Industrial Development Authority, OCJE violated the Act. 

Appellant's request consisted of ten numbered parts, four of which are at issue in this appeal. These four shall be analyzed individually. 

1. "Copies of all minutes and attachments from all meetings at which the use or lease of the Meade County Riverport was discussed from December 17, 2018 forward." 

With regard to these records, Appellant argues that OCJE did not provide fiscal court meeting minutes "for the time period of March 23, 2019, through September 30, 2019," or for meetings that occurred on December 10 and 19, 2019. In response, OCJE argues that the December 10 and 19 meeting minutes did not yet exist at the time of the request. A public agency cannot provide a requester access to a record that does not exist. See Bowling , 172 S.W.3d at 341. Once an agency affirmatively states that no responsive records exist, the burden then shifts to the requester to present a prima facie case that the requested records do exist. Id. Appellant has made a prima facie showing that meeting minutes should exist because these meetings did occur. 

OCJE's explanation that the meeting minutes were not finalized and approved until the first meeting of January 2020 is a reasonable explanation for their nonexistence. Nevertheless, OCJE violated the Act by failing to inform Appellant in its official response to the request that those minutes did not exist. 

As to the minutes from March 23 to September 30, 2019, OCJE explains that they were unresponsive to the request because "the use or lease of the Meade County Riverport" was not discussed at those meetings. Appellant has submitted no proof to the contrary. Accordingly, OCJE did not violate the Act as to those minutes. 

Appellant also argued that the fiscal court minutes she received "appear to be missing pages." From the copies attached to the appeal, it appears that the minutes provided for March 12, October 1, and November 12, 2019, were indeed incomplete. Since Appellant requested copies of "all minutes" from the meetings in question, and OCJE omitted pages with no legal or factual explanation, OCJE failed to meet its burden and violated the Act. KRS 61.880(2)(c) ("The burden of proof in sustaining the action shall rest with the agency"). 

2. "Copies of all agendas and any attachments from all meetings at which the use or lease of the Meade County River Port was discussed from December 17, 2019 forward." 

With regard to this portion of the request, Appellant argues that "only March 12, October 1, October 15, November 12, December 10, and December 19 agendas were provided for Meade County Fiscal Court." As in the case of the meeting minutes, OCJE asserts that the remaining agendas did not pertain to meetings where the topic was discussed. Accordingly, those records were unresponsive and OCJE did not violate the Act by not providing them. 

3. "Copies of all correspondence, including but not limited to email correspondence and text messages related to 1-8 above." 

The phrase "1-8 above" refers to the first eight portions of Appellant's request, which consisted of the first two portions at issue on appeal as well as the following: 

Copies of all minutes from all meetings and any attachments at which the board, including but not limited to individual board members, of the Meade County Riverport Authority were discussed from December 17, 2018 forward; 

Copies of all agendas and any attachments at which the board, including but not limited to individual board members, of the Meade County Riverport Authority were discussed from December 17, 2018 forward; 

Copies of all minutes from all meetings and any attachments at which the notice and bidding procedures for the use or lease of the Meade County River Port was discussed from December 17, 2018 forward; 

Copies of all agendas and any attachments of all meetings at which the notice and bidding procedures for the use or lease of the Meade County River Port was discussed from December 17, 2018 forward; 

Copies of all Options and any documents related thereto (including but not limited to any resolutions or minutes), involving Nucor or any of its subsidiaries or affiliates, including but not limited to Greenland Acquisition Company, Inc., Nucor Steel Brandenburg, or Nucor Steel Gallatin LLC (collectively, "Nucor"); [and] 

Copies of all documents reflecting in any way any advertising or bidding processes that have been followed with respect to Nucor[.]

 

Appellant argues that OCJE provided no e-mails or text messages "despite their existence," and claims to have "seen" one e-mail that is responsive to the request. 

The meaning of the phrase "related to 1-8 above" is inherently ambiguous, given the manner in which the first eight portions of the request were expressed. OCJE interpreted the request as seeking correspondence related to the requested documents, and Appellant has not contradicted this interpretation. 

In its response to this appeal, OCJE stated that eight pages of responsive records "may have been inadvertently left out of [its] response," and provided those eight pages as an attachment. 1They consist of e-mails and a fax confirmation sheet reflecting the transmittal of meeting notices and agendas. As to these records, this portion of the appeal is moot. 40 KAR 1:030 § 6. 

Nevertheless, in terms of the request, the eight pages OCJE belatedly provided relate only to meeting agendas. As stated above, if OCJE possessed no records responsive to the other subparts of this request, it was required to state that fact so Appellant could make a prima facie case that responsive records did exist. Because it failed to affirmatively deny the existence of responsive records, OCJE violated the Act by failing to fully respond to the request. 

4. "All correspondence, including email correspondence, that relates to (a) any impact upon future use of the river port as a result of the planned location of a steel mill operated by Nucor, and (b) any agreement with, or between, Nucor and CGB." 

With regard to this portion of the request, Appellant contends that "only one piece of correspondence was produced and email correspondence was not produced at all." In response, OCJE asserts that the document produced was the only responsive correspondence of any kind in its possession. In the absence of evidence to the contrary, there is no indication that OCJE violated the Act as to this portion of the request. 

Conclusion 

Accordingly, this Office finds that OCJE violated the Act by failing to respond to portions of Appellant's request and omitting pages of meeting minutes without explanation. OCJE further violated the Act by failing to advise Appellant that it was not the custodian of some of the records requested. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Because Appellant did not describe the one e-mail she claimed to have seen, it is unknown whether it was included among those provided by OCJE.



 

20-OMD-040

LLM Generated Data

Appellant: KYMEA Board of Directors

Agency: KYMEA

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KYMEA was found to have violated the Open Meetings Act by excluding the public from the ARPC meeting and regular KYMEA meeting based on improper justifications. However, KYMEA did not violate the Act by failing to publish notice of its meetings and committee meetings in various local newspapers, and it made the schedule of these regular meetings and committee meetings available to the public. The compliance of KYMEA's video teleconferencing procedures and the accuracy of the ARPC's report were deemed as questions of fact that the Office could not arbitrate. There was insufficient evidence to determine if KYMEA violated KRS 61.810(2) by participating in secret telephonic conferences.

Cited Opinions

  • 11-OMD-092: O

    This decision cites a previous case where the exact time of a meeting was in dispute due to conflicting narratives.

  • 00-OMD-171: O

    This decision is referenced for the interpretation of what constitutes a discussion of public business under the Open Meetings Act.

  • 13-OMD-118: O

    This decision is cited for the determination that a discussion about rescheduling a special meeting did not amount to a substantive discussion that would implicate the Open Meetings Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Meetings Decision 

The question presented in this appeal is whether the KYMEA 1Board of Directors violated provisions of the Act during its December 18, 2019, meeting for the reasons alleged in Appellant's written complaint, directed to KYMEA Chairman Ron Herd in accordance with KRS 61.846(1). Because the Appellant has acknowledged that KYMEA successfully resolved two items in her original written complaint, those items will not be discussed in this decision. In substance, Appellant's remaining allegations are that: 

1) Two committee meetings, one conducted shortly before the December 18, 2019, KYMEA regular meeting and one conducted after, were not publicly noticed; 

2) The All Requirements Projects Committee ("ARPC") meeting on December 18, 2019, was improperly closed to the public; 

3) KYMEA improperly conducts meetings via video teleconferencing because members of the public cannot always see and hear KYMEA members participating remotely; 

4) KYMEA improperly relied on provisions of the Open Records Act to close a portion of the regular meeting and KYMEA failed to cite the specific federal law that required the meeting to be closed pursuant to KRS 61.810(1)(k) when it invoked that exception; 

5) KYMEA conducts telephonic conference calls with a quorum present (or collectively constituting a quorum) and discusses public business without providing notice to the public; and 

6) The ARPC's report from its August 22, 2019 meeting, presented to the full KYMEA Board on December 18, 2019, did not accurately reflect the discussions of the committee.

 

Counsel for KYMEA responded timely to Appellant's complaint pursuant to KRS 61.846(1). In substance, KYMEA countered Appellant's assertions as follows: 

1) KYMEA establishes its regular meeting locations, dates, and times pursuant to resolutions. The date for the meeting in question had been established by resolution on October 24, 2018, and this resolution was published in the newspaper and on the KYMEA website. Notices of committee meetings (or "workshops") are also posted on the KYMEA website. 

2) The ARPC meeting was closed because the members were discussing "preliminary recommendations and preliminary memorand[a] expressing the opinions of the KYMEA staff . . ." For support, KYMEA relied on KRS 61.878(1)(j). 

3) KRS 61.826 authorizes KYMEA to conduct meetings via video teleconferencing. KYMEA provides notice that the meeting will be conducted via video teleconference at the beginning of the meeting. Remote KYMEA Directors are able to view and hear the Board proceedings and the entire Board is able to see and hear the remote Director when they speak. KRS 61.826 does not require a split screen be maintained "at all times" by the Board and remote Director. 

4) KYMEA specifically sets forth by resolution the reasons for entering into closed session. Because KYMEA routinely disseminates records which are excepted from disclosure to the general public due to their confidentiality, KYMEA cites the Open Records Act exceptions to identify that those records are confidential and therefore not subject to dissemination outside of the closed session. ... 

Regarding the request of invoking KRS 61.810(1)(k), currently KYMEA is involved in a "de-pancaking" proceeding before the Federal Energy Regulatory Commission ("FERC"). Certain information from that proceeding has been determined to be confidential. In an abundance of caution, KYMEA cites KRS 61.810(1)(k) as one of the reasons for entering closed session and has often stated in its meetings that the closed session discussion revolves around that proceeding. In the future, and per Appellant's request, KYMEA will specifically mention the FERC proceeding. 

5) Appellant failed to identify specific telephonic conferences she alleged constituted improper meetings. 

6) KYMEA disputes that the ARPC's report to the full KYMEA did not accurately reflect discussions conducted by the committee.

 

The Attorney General "shall review the complaint and denial and issue . . . a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." KRS 61.846(2). However, with regard to item 6, the parties have presented widely disparate narratives and this Office is unable to resolve the related factual question regarding the disputed accuracy of the ARPC's report to the KYMEA. See, e.g . 11-OMD-092 (Where this Office was unable to determine the exact time a meeting began with two conflicting narratives of when the meeting began). 

KYMEA provided appropriate notice that committees would meet

Pursuant to KRS 61.820(2), "[a]ll public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." The record on appeal confirms that KYMEA complied with KRS 61.820(2) by providing a schedule of regular meetings pursuant to resolutions, the most recent of which it adopted on October 24, 2018. A copy of the resolution and the minutes of the October 24, 2018, meeting at which KYMEA adopted the resolution are both of record. Appellant does not dispute this fact nor does Appellant dispute that a notice summarizing the resolution appeared in The Courier-Journal on November 7, 2018, or that KYMEA also posts the dates, times, and locations of its committee meetings on its website. 

This Office may not add or subtract from the legislative enactment or discover meanings not reasonably ascertainable from the language used. 

Beckham v. Bd. of Educ. , 873 S.W.2d 575, 577 (Ky. 1994). Likewise, KRS 446.080(4) requires that "[a]ll words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning." KRS 61.820(2) does not provide a technical or particular meaning to the phrase, "made available to the public." Accordingly, this Office must construe it according to common and approved usage. In other words, the Attorney General is not at liberty to construe "made available to the public," to require the specific usage that Appellant proposed as a remedy, i.e. , publication of meeting notices in the local newspapers of KYMEA member communities. KYMEA's method of publishing notice in The Courier-Journal and on its website, as well as posting notice of committee meetings on its website, is sufficient to comply with KRS 61.820. 

KYMEA violated the Act when it excluded the public from the ARPC meeting

KYMEA excluded members of the public from its ARPC meeting on December 18, 2019. The KYMEA argued that it would be reviewing a power point and spreadsheets, as well as discussing information related to "preliminary rate recommendations for FY 2021." It further argued that the ARPC meeting was merely informational and no final action was taken. In support of its position that discussion of preliminary information is permitted in a closed meeting, KYMEA cited KRS 61.878(1)(j), which exempts "preliminary recommendations and preliminary memoranda" from disclosure under the Open Records Act. However, KRS 61.810 provides the only exceptions to the Open Meetings Act. The only exception that references the Open Records Act is contained in KRS 61.810(1)(m), which generally exempts records that relate to potential terrorist attacks or plans to prevent them. There is no provision of KRS 61.810 that permits a public agency to discuss preliminary matters in secret. In fact, almost everything a public agency discusses is by its nature preliminary until a vote to take action on the matter is called. 

KYMEA's additional argument, that no final action was taken, also fails. KRS 61.810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" (Emphasis added.) The fundamental purpose of the Act is to recognize that "[t]he formation of public policy is public business and shall not be conducted in secret . . . ." KRS 61.800. The text of the Act is clear. If a quorum of members discuss any public business, the provisions of the Act apply. KRS 61.810(1). Likewise, KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." 

The term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." (emphasis added.) Thus, all gatherings of a quorum of the KYMEA committees where they discussed public business, such as "informal presentations," in preparation for a future public meeting, were meetings of a public agency. KRS 61.805(1); KRS 61.810(1). Because KYMEA discussed public business during the ARPC meeting, and excluded the public without invoking an appropriate exemption contained in KRS 61.810, it violated the Act. 

KYMEA complies with KRS 61.826 only if the public can see and hear remote Directors

Appellant's third objection was her inability to hear or see the KYMEA Directors participating by video teleconferencing. Appellant's proposed remedy was for KYMEA to update its equipment to ensure all remote Directors can be seen and heard. 

KRS 61.805(5) defines "Video teleconference" as "one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment." (emphasis added). Noticeably, KRS 61.805(5) uses the word "individuals" and not "members." More specifically, KRS 61.826 establishes the procedures for conducting meetings via video teleconferencing. KRS 61.826(2) requires the public agency to provide notice that a video teleconference will occur. That notice must "[p]recisely identify a primary location of the video teleconference where all members can be seen and heard and the public may attend in accordance with KRS 61.840." KRS 61.826(2)(b) (emphasis added). Although this provision does not explicitly state who shall be able to see and hear the member, the General Assembly answers this question by incorporating KRS 61.840 by reference. KRS 61.840 provides that "all agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings." (emphasis added). Again, the primary purpose of the Act is for public business to be conducted in the open and subject to observation by the public. Because KRS 61.840 requires sufficient accommodations to facilitate "public observation," and the General Assembly has permitted video teleconferencing but not ordinary teleconferencing, it is clear the General Assembly intended the public to be able to see the remote members. 

Although KRS 61.826 does not "require a split screen to be maintained 'at all times' by the Board and the [remote] Director," it does require that the remote Director be visible and audible to the public at all times. Because it is a question of fact as to whether the public can see and hear remote Directors, this Office cannot decide whether the December 18, 2019, video teleconference violated the Act. However, if KYMEA has not adopted procedures to ensure the public can see and hear remote Directors, its failure would be a violation of the Act. 

KYMEA cannot rely on the Open Records Act to close its regular meetings and must invoke an exception established in KRS 61.810 prior to entering closed session

Similar to Appellant's second objection, she further alleges the KYMEA improperly closed a portion of its regular meeting by relying upon KRS 61.878(1)(j). For the reasons stated above, finding this to be a violation in the context of the ARPC meeting, the holding is the same regarding the KYMEA regular meeting. The Open Records Act does not provide KYMEA with additional justification to close its regular meeting to the public. 

However, during the regular meeting KYMEA also invoked KRS 61.810(1)(k), which provides that "[m]eetings which federal or state law specifically require to be conducted in privacy" can be closed to the public. In its response to Appellant's written complaint, KYMEA stated that the discussions during the closed meeting pertained to confidential portions of a pending "de-pancaking" proceeding before the FERC. KYMEA offered to specifically refer to this federal regulatory proceeding in the future prior to discussing the matter in closed session and invoking KRS 61.810(1)(k). On appeal, KYMEA did not provide any further explanation of this federal proceeding or why it required confidentiality. To the extent a federal regulatory body has ordered KYMEA to keep information regarding the proceeding confidential, KYMEA can properly rely on the order to invoke KRS 61.810(1)(k). Because Appellant's notice of appeal specifically requested this Office to review KYMEA's invocation of the Open Records Act in connection to her fourth allegation, and KYMEA has offered to specifically cite the FERC proceeding when discussing these topics in future closed sessions, it is unnecessary to determine whether KYMEA properly invoked KRS 61.810(1)(k). 

There is insufficient evidence in the record to determine whether KYMEA violated KRS 61.810(2)

Appellant's fifth objection alleges that KYMEA conducts telephonic conferences without proper notice, and during these telephonic conferences public business is discussed. KYMEA argued that Appellant failed to identify when the alleged improper telephonic conferences took place. However, it did admit to conducting a telephonic conference on the Monday prior to the December 18, 2019, meeting. KYMEA stated the purpose of this call was to determine if an additional formal meeting of the Executive Committee was necessary prior to the December 18, 2019, regular meeting. KYMEA asserted no actual discussions took place regarding public business, but it occurred merely for the purposes of establishing scheduling. 

KRS 61.810(2) provides that "any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section." However, it further provides that "nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues." In construing KRS 61.810(1) and (2), the Kentucky Supreme Court has declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act." 

Yeoman v. Commonwealth of Ky., Health Policy Board , 983 S.W.2d 459, 474 (Ky. 1998). 

The Court in Yeoman further observed that for a meeting to take place within the meaning of the Act, "public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action." Id. Taking action "is defined by the Act as 'a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body.' KRS 61.805(3)." Id. See 00-OMD-171 (holding that City Manager contacting city commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business"); 13-OMD-118 (discussion of whether to reschedule a special meeting did not amount to a "substantive discussion" that would implicate the Act). Accordingly, the single conference call that KYMEA acknowledged it conducted did not violate KRS 61.810(1) or (2) if the only purpose or topic of discussion was "to determine if a formal meeting was required" and if so, what time it should be held. With no evidence to rebut KYMEA's assertions that the telephonic conference occurred merely for scheduling purposes, this Office finds no violation of the Act with respect to Appellant's fifth objection. 

Conclusion 

In summary, KYMEA violated the Act when it relied on KRS 61.878(1)(j) as the authority for excluding the public from the ARPC meeting and regular KYMEA meeting. KYMEA did not violate the Act by failing to publish notice of its meetings and committee meetings in various local newspapers, and it has made the schedule of these regular meetings and committee meetings available to the public. Whether KYMEA's video teleconferencing procedures comply with the Act, and whether the ARPC's report to the KYMEA was accurate involve questions of fact that this Office cannot arbitrate. Nevertheless, KYMEA is required under the Act to ensure that members of the public can both see and hear remote Directors participating via video teleconferencing. Finally, there is insufficient evidence in the record to determine if KYMEA violated KRS 61.810(2) by participating in secret telephonic conferences. 

Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 The record on appeal establishes that KYMEA was created in September 2015 pursuant to the Kentucky Interlocal Cooperation Act, KRS 65.210 through 65.300. It has eleven members, all of which are Kentucky municipal energy distributors located throughout the Commonwealth.



 

20-ORD-042

LLM Generated Data

Appellant: Michael Murphy

Agency: Fiscal Court

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The Fiscal Court was found to have violated the Open Records Act by failing to allow the appellant to inspect public records on the public premises and by providing a deficient initial response to the request. The court decision provides guidance on the requirements for public agencies to comply with the Act, including allowing inspection of records on the premises and providing a clear response when additional time is needed to produce records. The decision emphasizes the importance of following the specific procedures outlined in the Act. The appellant has the right to appeal this decision by initiating action in the appropriate circuit court, but the Attorney General should be notified of any such action without being named as a party in the proceeding.

Cited Opinions

  • 19-ORD-044: O

    This decision explains that the Fiscal Court violated the Open Records Act by failing to honor the appellant's request to inspect public records on the public premises and by providing a deficient initial response to the request.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On January 29, 2020, Michael Murphy ("Appellant") mailed six requests to inspect public records to the Fiscal Court. Two requests were broadly framed, seeking, "[a]ll zoning permits and or relevant documents" and "[c]ontract and all Bids Documents relating to" Fiscal Court issues. Appellant stated, "[i]f permission is granted to inspect the above records, I may also...request copies of part or all of the requested documents." 

On February 3, 2020, the Fiscal Court received the request and responded by requesting additional time, stating, "[p]lease allow us a reasonable amount of time to comply with your request. I will email you when we have it completed." However, on February 5, 2020, and within the required three-day period, the Fiscal Court emailed responsive records. Appellant initiated this appeal, stating, "[t]he [Fiscal Court] failed to invoke any statutes allowing more time beyond the requirements," and "I was never given the right of inspection." 

The Fiscal Court violated KRS 61.872(3)(a) by failing to honor Appellant's request to inspect public records on the public premises. KRS 61.872(3) provides that "[a] person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail . . . ." Moreover, KRS 61.872(1) provides that, "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Here, the Fiscal Court simply emailed records to Appellant and failed to acknowledge whether he could inspect the public records during the Fiscal Court's regular office hours. Appellant sought to inspect the records in person, as is his right under the Act. By failing to honor that request, the Fiscal Court violated the Act. 

The Fiscal Court's initial response was also deficient. Although the Fiscal Court timely provided records to the Appellant, a request for additional records must comply with KRS 61.872(5). If a public agency requires additional time to produce records because they are "in active use, in storage, or not otherwise available," then KRS 61.872(5) establishes the appropriate way to respond. 

[T]he official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

KRS 61.872(5). The statute clearly states that the agency must notify the applicant of the "earliest date on which the public record will be available." Here, the Fiscal Court requested additional time to respond, but failed to provide Appellant the date upon which the records would be available. See 19-ORD-044 (explaining that a statement that "I will get copies out as soon as I can" does not meet the earliest date certain requirement of KRS 61.872(5)). Although the Fiscal Court did not require additional time and supplied copies of the requested records within three business days after receiving the request, as required by KRS 61.880, its initial response did not comply with KRS 61.872(5). 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-042

LLM Generated Data

Appellant: Michael Murphy

Agency: Fiscal Court

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The Fiscal Court violated the Open Records Act by failing to allow the appellant to inspect public records on the public premises as requested. The court also did not comply with the requirements for responding to a request for additional time to produce records. The initial response from the Fiscal Court was deficient in not providing a specific date for when the records would be available for inspection. The appellant has the right to inspect public records during regular office hours, and the Fiscal Court's failure to honor that request constituted a violation of the Act.

Cited Opinions

  • 19-ORD-044: O

    This decision explains that a statement that 'I will get copies out as soon as I can' does not meet the earliest date certain requirement of KRS 61.872(5). It also clarifies the requirements for a public agency to respond to a request for additional time to produce records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On January 29, 2020, Michael Murphy ("Appellant") mailed six requests to inspect public records to the Fiscal Court. Two requests were broadly framed, seeking, "[a]ll zoning permits and or relevant documents" and "[c]ontract and all Bids Documents relating to" Fiscal Court issues. Appellant stated, "[i]f permission is granted to inspect the above records, I may also...request copies of part or all of the requested documents." 

On February 3, 2020, the Fiscal Court received the request and responded by requesting additional time, stating, "[p]lease allow us a reasonable amount of time to comply with your request. I will email you when we have it completed." However, on February 5, 2020, and within the required three-day period, the Fiscal Court emailed responsive records. Appellant initiated this appeal, stating, "[t]he [Fiscal Court] failed to invoke any statutes allowing more time beyond the requirements," and "I was never given the right of inspection." 

The Fiscal Court violated KRS 61.872(3)(a) by failing to honor Appellant's request to inspect public records on the public premises. KRS 61.872(3) provides that "[a] person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail . . . ." Moreover, KRS 61.872(1) provides that, "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right." Here, the Fiscal Court simply emailed records to Appellant and failed to acknowledge whether he could inspect the public records during the Fiscal Court's regular office hours. Appellant sought to inspect the records in person, as is his right under the Act. By failing to honor that request, the Fiscal Court violated the Act. 

The Fiscal Court's initial response was also deficient. Although the Fiscal Court timely provided records to the Appellant, a request for additional records must comply with KRS 61.872(5). If a public agency requires additional time to produce records because they are "in active use, in storage, or not otherwise available," then KRS 61.872(5) establishes the appropriate way to respond. 

[T]he official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

 

KRS 61.872(5). The statute clearly states that the agency must notify the applicant of the "earliest date on which the public record will be available." Here, the Fiscal Court requested additional time to respond, but failed to provide Appellant the date upon which the records would be available. See 19-ORD-044 (explaining that a statement that "I will get copies out as soon as I can" does not meet the earliest date certain requirement of KRS 61.872(5)). Although the Fiscal Court did not require additional time and supplied copies of the requested records within three business days after receiving the request, as required by KRS 61.880, its initial response did not comply with KRS 61.872(5). 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-044

LLM Generated Data

Appellant: Shamarria Morrison

Agency: Marshall County Judge Executive (MCJE)

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The Marshall County Judge Executive (MCJE) violated the Open Records Act by failing to provide timely responses, failing to justify withholding records as attorney-client privileged, and failing to explain the nonexistence of responsive records. The initial response from MCJE was insufficient as it did not comply with the requirements of KRS 61.880(1) and KRS 61.872(5). Additionally, MCJE did not properly identify the specific exception authorizing the withholding of records based on attorney-client privilege and failed to explain how the exception applied. Furthermore, MCJE did not clearly and directly state the nonexistence of records relating to Lance Cary, violating the Act. MCJE's actions were found to be in violation of KRS 61.880(1) and KRS 61.872(5).

Cited Opinions

  • 19-ORD-044: O

    This decision is cited to show that a response that merely acknowledges receipt of a request, without providing written notice that the agency will or will not comply, violates KRS 61.880(1). It also establishes that failing to notify the requester of the earliest date for inspection of public records violates KRS 61.872(5).

  • 19-ORD-097: O

    This decision is cited to demonstrate that a public agency must affirmatively state that a record does not exist when denying access to nonexistent records, and failing to clearly and directly state the nonexistence of a responsive record violates KRS 61.880(1).


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On December 18, 2019, WPSD Local 6 News reporter Shamarria Morrison ("Appellant") requested three groups of records relating to a recently enacted county ordinance. Appellant also requested records relating to the "employment and compensation of Lance Cary, who self-identified...as the Executive Director of [the] Judge Executive in a letter[.]" On December 19, 2019, MCJE issued its first written response, stating, "I am in receipt of your [requests] and will respond in a reasonable timeframe." On December 23, 2019, Appellant followed up on the request, and MCJE replied, "I responded on December 19 which met the 3 days requirement to respond. Again, we intend to complete this request in a reasonable time frame." 

Having received no further responses, Appellant initiated her first appeal on January 2, 2020, arguing that MCJE failed to respond timely. On January 3, 2020, fifteen days after her initial request, MCJE issued a supplemental response directly to Appellant with responsive records attached. On January 8, 2020, MCJE responded to the first notice of appeal, stating that it had responded within three days. MCJE further stated that its original belief that the response was sufficient "to meet the three-day time limitation appears to have been based on a misunderstanding" from a conversation with MCJE's prior legal counsel. MCJE stated that its delay was also due to a misunderstanding about which employee would process the request during the holidays. 

MCJE provided Appellant 39 pages of responsive records on January 3, 2020. In a letter dated January 7, 2020, however, MCJE denied access to other responsive records, "due to attorney-client privileges. No public funds were spent in procuring those services therefore there are no documents to produce." MCJE did not identify the records withheld, or identify and explain how a statutory exception authorizing their withholding applied. MCJE also implied the nonexistence of records relating to Lance Cary, stating that he "is not and has never been an employee or compensated by the Marshall County Fiscal Court." 

On January 8, 2020, Appellant initiated a second appeal to supplement her original appeal and disputed the partial denial of records. She argued that MCJE violated KRS 61.880(1) when it failed to cite an applicable exemption to inspect responsive records, or explain how the exemption applied. Appellant also argued that MCJE's denial of records regarding Lance Cary was not credible. As support, she provided copies of social media posts in which Mr. Cary referred to himself as the Executive Assistant to the Judge Executive. On January 17, 2020, this Office consolidated the two appeals and sent notice to MCJE, but the agency did not submit a response to the second appeal. On February 17, 2020, this Office requested supplemental information from MCJE regarding the specific records withheld as attorney-client privileged, and requested a clear and direct statement whether records regarding Lance Cary exist. MCJE did not respond to this Office's requests. 

MCJE Violated KRS 61.880(1) and KRS 61.872(5)

MCJE's initial response was insufficient because it failed to comply with KRS 61.880(1). Upon receiving any request for records the statute declares that a "public agency . . . shall determine within three (3) [business] days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The initial written response merely stated that MCJE received the request and intended to comply. However, KRS 61.880(1) requires the public agency to inform the requester within three business days whether it will comply with the request. A response that merely acknowledges receipt of a request, without providing written notice that the agency will or will not comply, violates KRS 61.880(1). 

In so far as MCJE intended its initial response to delay the time requirements of KRS 61.880(1), MCJE failed to comply with KRS 61.872(5). That provision provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

 

MCJE's initial response failed to notify Appellant whether the records were "in active use, in storage or not otherwise available." MCJE also failed to notify Appellant of "the earliest date on which the public record will be available for inspection." KRS 61.872(5); see, e.g. , 19-ORD-044 (finding that City of Martin's statement, "I will get copies out as soon as I can," did not comply with KRS 61.872(5)). Accordingly, MCJE failed to meet the requirements of KRS 61.872(5). 

MCJE Failed to Justify Withholding Records as Attorney-Client Privileged

"An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1) (emphasis added). MCJE's supplemental response to Appellant on January 7, 2020, did not identify KRS 61.878(1)(l) as the "specific exception" for withholding records based on the attorney-client privilege. 

MCJE also failed to explain how the attorney-client privilege applied to responsive records it withheld. To satisfy the burden of proof imposed by KRS 61.880(2)(c), the public agency is required to provide a written response that identifies any responsive records that are being withheld, and then briefly explain how the asserted exceptions apply to each record or category of records. KRS 61.880(1); see also 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). MCJE did not identify the records withheld or explain how the attorney-client privilege applied in any of its responses. MCJE also declined to respond to this Office's request for MCJE to explain how the exception applied. Accordingly, MCJE failed to meet its burden of proof that the attorney-client privilege authorized withholding documents and violated the Act. 

MCJE Failed to Explain the Nonexistence of Responsive Records

MCJE failed to explain sufficiently the nonexistence of records relating to Lance Cary. Of course, a public agency cannot provide a requester with access to nonexistent records. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Once an agency affirmatively states that no responsive record exists, the burden then shifts to the requester to present a prima facie case that the requested record does exist. Id. However, a public agency's response that merely implies the nonexistence of a responsive record fails to provide the requester the reason their request is denied pursuant to KRS 61.880(1). See e.g. , 19-ORD-097 (Finding a violation of the Act when an agency referred to its retention policy and claimed the retention period had expired, but the agency did not affirmatively state a record did not exist). 

In its initial response, MCJE claimed that Mr. Carey "is not and has never been an employee or compensated by the Marshall County Fiscal Court." This assertion implied that no responsive records existed, but it did not clearly and directly state that MCJE did not possess responsive records. MCJE chose not to respond to this Office's request for clarification whether responsive records existed. 

When a requester presents a prima facie case that responsive records should exist, the burden is on the agency to explain the adequacy of its search to maintain its position that no records exist. See City of Ft. Thomas , 406 S.W.3d at 848 n.3. Here, a responsive email in the record indicates that Mr. Carey communicated with interest groups on behalf of the Judge/Executive. As such, Appellant has made a prima facie case that records may exist. Thus, the burden shifted to MCJE to explain the adequacy of its search. Id. However, MCJE did not describe its search for records at all. Accordingly, MCJE failed to meet its burden of proof regarding the nonexistence of records. For this reason, MCJE violated the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-043

LLM Generated Data

Appellant: Melissa Stone

Agency: University of Louisville

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The University of Louisville violated the Open Records Act by failing to provide a timely disposition of the appellant's request and by improperly redacting certain information without meeting the burden of proof. The University properly redacted personal telephone numbers and private e-mail addresses under categorical redaction rules. However, the University failed to articulate a privacy interest for other redactions, failed to meet the burden of proof for redacting brokerage account information, and failed to provide sufficient information to establish the applicability of attorney-client privilege or the work product doctrine. The University properly withheld preliminary records relating to grant renewal proposals under KRS 61.878(1)(i) and (j) except to the extent that such records were adopted as the basis of final agency action. The appellant may appeal the decision in the appropriate circuit court. The University did not make an argument under KRS 61.878(1)(c), which was a missed opportunity.

Cited Opinions

  • 01-ORD-38: O

    The decision in 01-ORD-38 is cited as a precedent where a university failed to provide records within the required time frame and did not give a detailed explanation for the delay, resulting in a violation of the Open Records Act.

  • 16-ORD-205: F

    The decision in 16-ORD-205 is cited as an example where categorical redaction of personal telephone numbers and private e-mail addresses was deemed permissible under KRS 61.878(1)(a).


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The University violated the Act in its disposition of a February 6, 2019, request by Melissa Stone ("Appellant") for "[a]ny official University of Louisville memorandums, email, or other communications from Dr. Tayna Franklin, Dr. Ashlee Bergin, Dr. Franklin Marshal, [or] Dr. Gregory Postel" regarding three subjects: "the Kenneth J. Ryan Abortion Training Program also referred to as the Ryan Training Program," "Planned Parenthood," or "EMW Women's Surgical Center." 

The University first replied on February 13, 2019, five business days after the electronic request was submitted, requesting a "narrow date range" from Appellant. The following day, Appellant agreed to limit her request to records between January 1, 2016, and January 31, 2019. Despite follow-up communications from Appellant in March, May, 1June, and September 2019, the University did not provide a date by which records would be available. 

Finally, on October 23, 2019, the University notified Appellant that it was giving "persons who might claim a privacy interest" an opportunity to take legal action under 

Beckham v. Board of Education of Jefferson County , 873 S.W.2d 575 (Ky. 1994), to block the release of records. The University stated that it would release records to Appellant "no later than November 8, 2019," unless it was "notified of a motion to quash." 

On December 20, 2019, the University e-mailed records to Appellant, with several redactions and omissions on various grounds. The University did not, however, indicate that anyone had filed an action pursuant to Beckham that would have been the cause of the further delay. Due to the size of the attached files, Appellant did not receive the e-mail, and therefore she initiated this appeal on February 13, 2020. 2

KRS 61.880(1) requires a public agency to make a final disposition of an open records request within three business days. KRS 61.872(5) permits a longer period of time when records are "in active use, in storage or not otherwise available," if the agency gives "a detailed explanation of the cause ... for further delay and the place, time, and earliest date on which the public record will be available for inspection." The University, however, did not respond within three business days, nor did it allege any of the circumstances described in KRS 61.872(5) or give a detailed explanation 3or the earliest date on which the records would be available. Subsequently, it failed to honor its stated date of November 8, 2019, for providing responsive records. By failing to provide records on the date the University identified, the University failed to discharge its duties under the Act. See, e.g. , 01-ORD-38 (finding violation where university provided only a projected or speculative date when records would be available and thus did not provide the "earliest date," as required by KRS 61.872(5)). By providing no records for more than 10 months after the request, and failing to give any reason for delay until eight months after the request, the University violated KRS 61.880(1). 4

While the University wholly failed to dispose of the request according to KRS 61.880(1), the University met its burden regarding some redactions it made and failed to meet is burden regarding others. KRS 61.880(2)(c). The University alleged four separate bases for its redactions and omissions from the records provided to Appellant. 

First, the University invoked KRS 61.878(1)(a), which excludes from open records "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Specifically, the University stated that it had "redacted personal cell and email addresses, brokerage account information, information regarding access to EMW Women's Surgical Center, physician schedules and locations, and information regarding students." 

KRS 61.878(1)(a) permits the categorical redaction of "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," including date of birth, Social Security number, driver's license number, and home address. 

Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 89 (Ky. 2013). Personal telephone numbers and private e-mail addresses are subject to categorical redaction. See, e.g. , 16-ORD-205. Accordingly, the University properly redacted this information. 

When categorical redaction does not apply, KRS 61.878(1)(a) requires a "comparative weighing of the antagonistic interests" between an identified privacy interest and the public interest in disclosure. 

Ky. Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co. , 826 S.W.2d 324, 327 (Ky. 1992). The public purpose of the Act is to ensure "meaningful public oversight, to enable Kentuckians to know 'what their government is up to.'" Ky. New Era , 415 S.W.3d at 89. 

To rely on the exception provided by KRS 61.878(1)(a), the University must provide "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). If the University identified a personal privacy interest in the records redacted, that interest would be weighed against the public interest in disclosure. See Ky. Bd. of Examiners , 826 S.W.2d at 327-28. However, the University articulated no privacy interest as to "brokerage account information, information regarding access to EMW Women's Surgical Center, physician schedules and locations, [or] information regarding students." 

If an agency merely cites KRS 61.878(1)(a) without articulating a privacy interest, this Office cannot engage in a "comparative weighing of the antagonistic interests." Id. Therefore, the University failed to meet its burden of proof in applying that exception to these non-categorical redactions. 5

As to "brokerage account information," the University failed to identify whose personal privacy interest was at stake. For an account belonging to a private individual with no involvement of public funds, the balance of interests would likely favor personal privacy. See 

Hines v. Com., Dept. of Treasury , 41 S.W.3d 872, 875 (Ky. App. 2001) (holding private individual's privacy interest in the value of abandoned property held in trust by the Kentucky State Treasury outweighed the public interest because the information did not involve public expenditures). 

The University, however, has not clearly stated whether the "brokerage account information" was related to a private individual, to the University itself, or to a business entity. Records of an account belonging to a public agency necessarily involve the use of public funds and do not implicate personal privacy interests. See 

Lexington-Fayette Urban Cty. Gov't v. Lexington Herald-Leader Co. , 941 S.W.2d 469 (Ky. 1997) (holding that settlements to lawsuits involving public funds were not exempt under KRS 61.878(1)(a)). Similarly, a brokerage account owned by a business would not presumptively contain information subject to personal privacy, although the records might be exempt under KRS 61.878(1)(c). 6Because the University did not articulate whose "brokerage information" was at issue, it failed to meet its burden of proof for the redaction of "brokerage account information" under KRS 61.878(1)(a). In this way, the University violated the Act. 

The second basis for the University's redactions is the Family Education Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. The University stated that it had redacted "records identifying students." FERPA provides, at 20 U.S.C. § 1232g(b)(1): 

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than [certain limited exceptions.]

"Education records" are defined in 20 U.S.C. § 1232g(a)(4)(A) as "those records, files, documents, and other materials which ... contain information directly related to a student; and ... are maintained by an educational agency or institution or by a person acting for such agency or institution." 

The University stated that it redacted "records identifying students," and that its redactions consisted of "information regarding students." The term "education records" includes all information, in whatever form, that relates to a student and is maintained by an educational institution. See, e.g., 

United States v. Miami University , 194 F.3d 797, 812 (6th Cir. 2002) ("Notably, Congress made no content-based judgments with regard to its 'education records' definition."); 

Belanger v. Nashua, New Hampshire, Sch. Dist. , 856 F.Supp. 40, 49 (D.N.H. 1994) ("Congressional intent was to fashion a broad definition"). Therefore, the student information was properly redacted under FERPA. 

The third basis cited by the University for withholding records was KRS 61.878(1)(i) and (j). Specifically, the records custodian stated, "I identified records regarding grant renewal proposals that I withholding [ sic ] from release as they contain preliminary discussions of matters not finalized, drafts, and/or contain opinions and recommendations. The content of these records did not constitute final action in this matter." 

KRS 61.878(1)(i) and (j), respectively, create exceptions to the Open Records Act in the cases of: 

(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and] 

(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]

According to the Kentucky Supreme Court, if preliminary records are adopted as the basis of final agency action, they lose their former preliminary status under KRS 61.878(1)(i) or (j). 

University of Ky. v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992) ( citing 

City of Louisville v. Courier-Journal & Louisville Times Co. , 637 S.W.2d 658 (Ky. App. 1982); 

Ky. State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co. , 663 S.W.2d 953 (Ky. App. 1983)). 

With regard to the grant renewal proposals, the University did not clearly state whether the University had taken final agency action as to any of those proposals by the time of Appellant's request. If the University had not taken final action on any of these matters, preliminary drafts were exempt under KRS 61.878(1)(i) and any preliminary recommendations or expressions of opinion were exempt under KRS 61.878(1)(j). To the extent the University had taken final action by the time of the request, those records should have been disclosed to the extent they were "adopted by the agency as part of its action." 

Univ. of Ky. v. Courier-Journal & Louisville Times Co. , 830 S.W.2d at 378. 

Finally, the University invoked KRS 61.878(1)(l) and KRE 503 to withhold "documents conveying legal advice/attorney-client work product." KRS 61.878(1)(l) operates in tandem with KRE 503 to exclude from public inspection otherwise public records protected by the attorney-client privilege. 

Hahn v. University of Louisville , 80 S.W.3d 771 (Ky. App. 2001). Records protected by the work product doctrine may likewise be withheld from public inspection under KRS 61.878(1)(l) and CR 26.02(3). See 

Univ. of Ky. v. Lexington H-L Services , 579 S.W.3d 858, 864-65 (Ky. App. 2018). 

The attorney-client privilege attaches to "confidential communication[s] made for the purpose of facilitating the rendition of professional legal services to [a] client." KRE 503(b). "A communication is 'confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." KRE 503(a)(5). 

The work product doctrine "affords a qualified privilege from discovery for documents 'prepared in anticipation of litigation or for trial' by that party's representative, which includes an attorney." 

Univ. of Ky. v. Lexington H-L Services , 579 S.W.3d at 864. "However, the mere potential for litigation is not sufficient to place documents within the scope of the work-product doctrine." Id. at 865. "Furthermore, documents which are primarily factual, non-opinion work product are subject to lesser protection than 'core' work product, which includes the mental impressions, conclusions, opinions, or legal theories of an attorney." Id. 

KRS 61.880(1) requires that any agency response denying access to public records "provide particular and detailed information" to explain how an exception to the Act applies, not merely a "limited and perfunctory response." 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). The University gave no description of any documents it deemed to be "work product," nor any factual context from which to conclude that any document was "prepared in anticipation of litigation or for trial." Likewise, the University did not state sufficient facts to establish that the "documents conveying legal advice" were in fact confidential communications to the University from its counsel in the furtherance of legal services. From this record, it is unclear whether any anticipated litigation existed or to whom the attorney was "conveying legal advice." This Office therefore finds that the University failed to meet its burden of proof as to any records allegedly protected by attorney-client privilege or the work product doctrine. See KRS 61.880(2)(c). 

In conclusion, the University violated the Act by its egregiously untimely disposition of Appellant's request. It also violated the Act insofar as it failed to meet its burden of proof whether "information regarding access to EMW Women's Surgical Center, physician schedules and locations" or "brokerage account information" contained private information under KRS 61.878(1)(a), and whether any records were protected by attorney-client privilege or the work product doctrine. However, the University properly withheld preliminary records relating to grant renewal proposals under KRS 61.878(1)(i) and (j) except to the extent that such records were adopted as the basis of final agency action. The University properly invoked KRS 61.878(1)(a) regarding personal telephone numbers and personal e-mail addresses, and properly invoked FERPA regarding information identifying students. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 There is evidence in the record that on May 13, 2019, the University e-mailed Appellant "additional contracts" it discovered. However, Appellant did not specifically request "contracts" and it is unclear to which request these records related.

2 On February 20, 2020, the University made the same set of records available to Appellant via online storage, and she finally obtained the records.

3 The University's only explanation for the delay prior to October 23, 2019, was a statement on September 4, 2019, that "[o]ur outside counsel is reviewing documents at this time." This is not a valid basis for delay under the Act.

4 On appeal, Appellant complained that several e-mails provided to her were not legible. On March 2, 2020, the University provided corrected copies and explained that those e-mails "became corrupted when the files were converted to PDF." That issue, having been resolved, is now moot.

5 There may be a legitimate personal privacy interest in these documents. However, because the University did not articulate one, this Office will not speculate about that potential privacy interest in this decision.

6 The University, however, did not make an argument under KRS 61.878(1)(c).



 

20-ORD-044

LLM Generated Data

Appellant: Shamarria Morrison

Agency: Marshall County Judge Executive (MCJE)

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The Marshall County Judge Executive (MCJE) violated the Open Records Act by failing to provide timely responses, justify withholding records as attorney-client privileged, and explain the nonexistence of responsive records. The agency's initial response was insufficient and did not comply with the requirements of the Act. Additionally, MCJE failed to provide a clear and direct statement regarding the nonexistence of records and did not adequately explain the withholding of records based on attorney-client privilege. The burden of proof was not met by the agency, leading to violations of the Act. The decision allows for an appeal to be initiated in the appropriate circuit court.

Cited Opinions

  • 19-ORD-044: O

    This decision is cited to show that a response that merely acknowledges receipt of a request, without providing written notice that the agency will or will not comply, violates KRS 61.880(1). It also establishes that failing to notify the requester of the earliest date for inspection of public records violates KRS 61.872(5).

  • 19-ORD-097: O

    This decision is cited to demonstrate that a public agency must provide a clear and direct statement if a record does not exist, and failing to do so violates KRS 61.880(1). It also shows that when a requester presents a prima facie case that responsive records should exist, the burden is on the agency to explain the adequacy of its search to maintain its position that no records exist.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On December 18, 2019, WPSD Local 6 News reporter Shamarria Morrison ("Appellant") requested three groups of records relating to a recently enacted county ordinance. Appellant also requested records relating to the "employment and compensation of Lance Cary, who self-identified...as the Executive Director of [the] Judge Executive in a letter[.]" On December 19, 2019, MCJE issued its first written response, stating, "I am in receipt of your [requests] and will respond in a reasonable timeframe." On December 23, 2019, Appellant followed up on the request, and MCJE replied, "I responded on December 19 which met the 3 days requirement to respond. Again, we intend to complete this request in a reasonable time frame." 

Having received no further responses, Appellant initiated her first appeal on January 2, 2020, arguing that MCJE failed to respond timely. On January 3, 2020, fifteen days after her initial request, MCJE issued a supplemental response directly to Appellant with responsive records attached. On January 8, 2020, MCJE responded to the first notice of appeal, stating that it had responded within three days. MCJE further stated that its original belief that the response was sufficient "to meet the three-day time limitation appears to have been based on a misunderstanding" from a conversation with MCJE's prior legal counsel. MCJE stated that its delay was also due to a misunderstanding about which employee would process the request during the holidays. 

MCJE provided Appellant 39 pages of responsive records on January 3, 2020. In a letter dated January 7, 2020, however, MCJE denied access to other responsive records, "due to attorney-client privileges. No public funds were spent in procuring those services therefore there are no documents to produce." MCJE did not identify the records withheld, or identify and explain how a statutory exception authorizing their withholding applied. MCJE also implied the nonexistence of records relating to Lance Cary, stating that he "is not and has never been an employee or compensated by the Marshall County Fiscal Court." 

On January 8, 2020, Appellant initiated a second appeal to supplement her original appeal and disputed the partial denial of records. She argued that MCJE violated KRS 61.880(1) when it failed to cite an applicable exemption to inspect responsive records, or explain how the exemption applied. Appellant also argued that MCJE's denial of records regarding Lance Cary was not credible. As support, she provided copies of social media posts in which Mr. Cary referred to himself as the Executive Assistant to the Judge Executive. On January 17, 2020, this Office consolidated the two appeals and sent notice to MCJE, but the agency did not submit a response to the second appeal. On February 17, 2020, this Office requested supplemental information from MCJE regarding the specific records withheld as attorney-client privileged, and requested a clear and direct statement whether records regarding Lance Cary exist. MCJE did not respond to this Office's requests. 

MCJE Violated KRS 61.880(1) and KRS 61.872(5)

MCJE's initial response was insufficient because it failed to comply with KRS 61.880(1). Upon receiving any request for records the statute declares that a "public agency . . . shall determine within three (3) [business] days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The initial written response merely stated that MCJE received the request and intended to comply. However, KRS 61.880(1) requires the public agency to inform the requester within three business days whether it will comply with the request. A response that merely acknowledges receipt of a request, without providing written notice that the agency will or will not comply, violates KRS 61.880(1). 

In so far as MCJE intended its initial response to delay the time requirements of KRS 61.880(1), MCJE failed to comply with KRS 61.872(5). That provision provides: 

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.

MCJE's initial response failed to notify Appellant whether the records were "in active use, in storage or not otherwise available." MCJE also failed to notify Appellant of "the earliest date on which the public record will be available for inspection." KRS 61.872(5); see, e.g. , 19-ORD-044 (finding that City of Martin's statement, "I will get copies out as soon as I can," did not comply with KRS 61.872(5)). Accordingly, MCJE failed to meet the requirements of KRS 61.872(5). 

MCJE Failed to Justify Withholding Records as Attorney-Client Privileged

"An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1) (emphasis added). MCJE's supplemental response to Appellant on January 7, 2020, did not identify KRS 61.878(1)(l) as the "specific exception" for withholding records based on the attorney-client privilege. 

MCJE also failed to explain how the attorney-client privilege applied to responsive records it withheld. To satisfy the burden of proof imposed by KRS 61.880(2)(c), the public agency is required to provide a written response that identifies any responsive records that are being withheld, and then briefly explain how the asserted exceptions apply to each record or category of records. KRS 61.880(1); see also 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). MCJE did not identify the records withheld or explain how the attorney-client privilege applied in any of its responses. MCJE also declined to respond to this Office's request for MCJE to explain how the exception applied. Accordingly, MCJE failed to meet its burden of proof that the attorney-client privilege authorized withholding documents and violated the Act. 

MCJE Failed to Explain the Nonexistence of Responsive Records

MCJE failed to explain sufficiently the nonexistence of records relating to Lance Cary. Of course, a public agency cannot provide a requester with access to nonexistent records. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Once an agency affirmatively states that no responsive record exists, the burden then shifts to the requester to present a prima facie case that the requested record does exist. Id. However, a public agency's response that merely implies the nonexistence of a responsive record fails to provide the requester the reason their request is denied pursuant to KRS 61.880(1). See e.g. , 19-ORD-097 (Finding a violation of the Act when an agency referred to its retention policy and claimed the retention period had expired, but the agency did not affirmatively state a record did not exist). 

In its initial response, MCJE claimed that Mr. Carey "is not and has never been an employee or compensated by the Marshall County Fiscal Court." This assertion implied that no responsive records existed, but it did not clearly and directly state that MCJE did not possess responsive records. MCJE chose not to respond to this Office's request for clarification whether responsive records existed. 

When a requester presents a prima facie case that responsive records should exist, the burden is on the agency to explain the adequacy of its search to maintain its position that no records exist. See City of Ft. Thomas , 406 S.W.3d at 848 n.3. Here, a responsive email in the record indicates that Mr. Carey communicated with interest groups on behalf of the Judge/Executive. As such, Appellant has made a prima facie case that records may exist. Thus, the burden shifted to MCJE to explain the adequacy of its search. Id. However, MCJE did not describe its search for records at all. Accordingly, MCJE failed to meet its burden of proof regarding the nonexistence of records. For this reason, MCJE violated the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-048

LLM Generated Data

Appellant: Chris Patterson

Agency: BCFC

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The BCFC violated the Open Records Act by initially omitting responsive medical records but corrected the error on appeal. The agency also violated the Act by failing to address policies and procedures in the initial response, but this was corrected on appeal by explaining the nonexistence of the requested records. Additionally, the BCFC initially erred in denying requests for information due to confidentiality, but this was justified on appeal. The agency properly denied the requests as no records existed that would yield the information sought. The appellant did not provide evidence that such records exist. The decision allows for appeal in the appropriate circuit court.

Cited Opinions

  • 95-ORD-96: F

    Cited to establish the requirement for a public agency to make a good faith effort to conduct a search for records requested.

  • 12-ORD-153: F

    Cited to support the idea that a public agency must direct its search to all places that might yield responsive records.

  • 00-ORD-76: F

    Cited to explain that the purpose of the Open Records Act is to provide access to public records, not information.

  • 97-ORD-6: F

    Referenced to establish that public agencies are required to make available records that might yield the information sought.

  • 14-ORD-073: F

    Cited in relation to the requirement for public agencies to make available records that might contain the information being sought.

  • 10-ORD-156: F

    Cited to explain that a public agency can only make non-exempt records available for inspection if they currently exist in the agency's possession or control.

  • OAG 79-547: F

    Cited to establish that the purpose of the Open Records Act is to provide access to public records, not information.

  • OAG 76-375: F

    Referenced to explain that requests for information, as opposed to requests for existing public records, need not be honored.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On February 4, 2020, Chris Patterson ("Appellant") requested copies of his personnel and medical files, and "the Policy and Procedure on the issuance for Certification of Assessment and Medical Inquiry form in Response to an Accommodation Request." Appellant also requested information, including: "the number of employees at the [BCFC]...sent a Medical Inquiry form in response to an accommodation request...in the past 5 years[;]" and "the number of employees who have been placed on leave without pay while on paid sick leave[.]" 

On February 13, 2020, BCFC provided Appellant the records from his personnel file and electronic medical file, but inadvertently omitted the hard copy records from his medical file. BCFC denied the requests for information related to certifications of assessment and medical inquiries, stating that such information was confidential. BCFC did not respond to the request for policies and procedures. 

On February 23, 2020, Appellant initiated this appeal, stating that he did not receive his complete medical file and any policies and procedures. Appellant also appealed the denial of information related to certifications of assessment and medical inquiries. BCFC responded acknowledging the omission of medical records, stating "[i]t appears that there were 17 medical notes that had not yet been scanned into the electronic file." BCFC's response described its follow-up search for responsive records and included confirmation that the agency provided Appellant copies of the omitted records. BCFC stated that no policies and procedures relating to certifications of assessment and medical inquiries exist, but "[t]he institution acknowledges that it should have explained this in its response letter." BCFC changed its response to the requests for information, stating that the Open Records Act ("Act") does not require a response to such requests. However, BCFC also provided a statement from the Department of Corrections ("DOC") Director of Personnel Services that DOC and correctional facilities do not track information related to certifications of assessment and medical inquiries, and the agencies do not possess any policies and procedures on the subjects. BCFC acknowledged that it should have initially stated this as the basis for denying the requests for information. 

BCFC Omitted Responsive Records but Corrected the Error on Appeal

BCFC conducted an inadequate search for responsive medical records by failing to include in its search the contents of Appellant's hard copy medical file. The Act requires that a public agency "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. Thus, the agency must expend reasonable efforts to identify and locate the requested records." 95-ORD-96, p. 5, citing 

Cerveny v. Central Intelligence Agency , 445 F.Supp 772, 775 (D. Col. 1978). This Office has found that a public agency meets the "good faith" requirement by directing "its search not only to the first and most obvious place where responsive records could be located but to all places that might yield responsive records." 12-ORD-153, p. 4. As such, the initial search failed to meet the "good faith" standard. However, BCFC corrected the error on appeal by conducting a follow-up search and providing Appellant the records initially missed. The appeal response also included DOC, which confirmed that all responsive records were located and disclosed. Accordingly, BCFC corrected the initial error. 

BCFC Explained the Nonexistence of Responsive Records on Appeal

BCFC admittedly violated KRS 61.880(1) 1by failing to address the policies and procedures in its initial response. However, BCFC corrected the error on appeal by explaining the nonexistence of policies related to certifications of assessment and medical inquiries. To satisfy the burden of proof imposed under KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records. See 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence.") On appeal, BCFC met its duty by providing statements from knowledgeable staff explaining the nonexistence of the requested policies. Accordingly, the initial violation of KRS 61.880(1) was corrected. 

BCFC Properly Denied the Requests for Information

BCFC admittedly violated KRS 61.880(1) by incorrectly asserting that it was denying the requests for information due to confidentiality, presumably under KRS 61.878(1)(a). However, BCFC justified denying the requests on appeal. "The purpose of the [Act] is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, requests for information, as opposed to requests for existing public records, need not be honored. 00-ORD-76, p. 3 (citing OAG 76-375). 

Ordinarily, public agencies are required to make available for inspection records that might yield the information sought. 97-ORD-6, p. 5; 14-ORD-073. However, "[a] public agency is only able, in lieu of denying a request for information, to make any non-exempt records that may contain the information being sought available for inspection or copying if such records were created and currently exist in the possession or control of the agency." 10-ORD-156, p. 3. Here, DOC and BCFC affirmatively stated that no records exist in their possession that would yield the information Appellant seeks, and Appellant did not provide any evidence that such records do exist. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"). As such, BCFC properly denied the requests. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In pertinent part, KRS 61.880(1) states: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."



 

20-ORD-048

LLM Generated Data

Appellant: Chris Patterson

Agency: BCFC

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The BCFC violated the Open Records Act by initially omitting responsive medical records from the appellant's file but corrected the error on appeal. The agency also initially failed to address the policies and procedures requested but corrected this error on appeal by explaining their nonexistence. While the BCFC incorrectly asserted confidentiality as the basis for denying certain requests, they justified the denials on appeal by explaining that the Act does not require responses to requests for information. The BCFC properly denied the requests as no records existed that would yield the information sought. The appellant may appeal this decision in the appropriate circuit court.

Cited Opinions

  • 95-ORD-96: F

    Cited to establish the requirement for a public agency to make a good faith effort to conduct a search for records requested.

  • 12-ORD-153: F

    Cited to show that a public agency must direct its search to all places that might yield responsive records.

  • 00-ORD-76: F

    Cited to explain that the purpose of the Open Records Act is to provide access to public records, not information.

  • 97-ORD-6: F

    Referenced to establish that public agencies are required to make available records that might yield the information sought.

  • 14-ORD-073: F

    Cited in the context of public agencies being required to make available records that might contain the information sought.

  • 10-ORD-156: F

    Cited to show that a public agency can only make non-exempt records available for inspection if they were created and currently exist in the agency's possession or control.

  • OAG 79-547: F

    Referenced to explain the purpose of the Open Records Act in providing access to public records, not information.

  • OAG 76-375: F

    Cited to support the argument that requests for information, as opposed to requests for existing public records, need not be honored.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On February 4, 2020, Chris Patterson ("Appellant") requested copies of his personnel and medical files, and "the Policy and Procedure on the issuance for Certification of Assessment and Medical Inquiry form in Response to an Accommodation Request." Appellant also requested information, including: "the number of employees at the [BCFC]...sent a Medical Inquiry form in response to an accommodation request...in the past 5 years[;]" and "the number of employees who have been placed on leave without pay while on paid sick leave[.]" 

On February 13, 2020, BCFC provided Appellant the records from his personnel file and electronic medical file, but inadvertently omitted the hard copy records from his medical file. BCFC denied the requests for information related to certifications of assessment and medical inquiries, stating that such information was confidential. BCFC did not respond to the request for policies and procedures. 

On February 23, 2020, Appellant initiated this appeal, stating that he did not receive his complete medical file and any policies and procedures. Appellant also appealed the denial of information related to certifications of assessment and medical inquiries. BCFC responded acknowledging the omission of medical records, stating "[i]t appears that there were 17 medical notes that had not yet been scanned into the electronic file." BCFC's response described its follow-up search for responsive records and included confirmation that the agency provided Appellant copies of the omitted records. BCFC stated that no policies and procedures relating to certifications of assessment and medical inquiries exist, but "[t]he institution acknowledges that it should have explained this in its response letter." BCFC changed its response to the requests for information, stating that the Open Records Act ("Act") does not require a response to such requests. However, BCFC also provided a statement from the Department of Corrections ("DOC") Director of Personnel Services that DOC and correctional facilities do not track information related to certifications of assessment and medical inquiries, and the agencies do not possess any policies and procedures on the subjects. BCFC acknowledged that it should have initially stated this as the basis for denying the requests for information. 

BCFC Omitted Responsive Records but Corrected the Error on Appeal

BCFC conducted an inadequate search for responsive medical records by failing to include in its search the contents of Appellant's hard copy medical file. The Act requires that a public agency "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested. Thus, the agency must expend reasonable efforts to identify and locate the requested records." 95-ORD-96, p. 5, citing 

Cerveny v. Central Intelligence Agency , 445 F.Supp 772, 775 (D. Col. 1978). This Office has found that a public agency meets the "good faith" requirement by directing "its search not only to the first and most obvious place where responsive records could be located but to all places that might yield responsive records." 12-ORD-153, p. 4. As such, the initial search failed to meet the "good faith" standard. However, BCFC corrected the error on appeal by conducting a follow-up search and providing Appellant the records initially missed. The appeal response also included DOC, which confirmed that all responsive records were located and disclosed. Accordingly, BCFC corrected the initial error. 

BCFC Explained the Nonexistence of Responsive Records on Appeal

BCFC admittedly violated KRS 61.880(1) 1by failing to address the policies and procedures in its initial response. However, BCFC corrected the error on appeal by explaining the nonexistence of policies related to certifications of assessment and medical inquiries. To satisfy the burden of proof imposed under KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the records. See 

Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence.") On appeal, BCFC met its duty by providing statements from knowledgeable staff explaining the nonexistence of the requested policies. Accordingly, the initial violation of KRS 61.880(1) was corrected. 

BCFC Properly Denied the Requests for Information

BCFC admittedly violated KRS 61.880(1) by incorrectly asserting that it was denying the requests for information due to confidentiality, presumably under KRS 61.878(1)(a). However, BCFC justified denying the requests on appeal. "The purpose of the [Act] is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, requests for information, as opposed to requests for existing public records, need not be honored. 00-ORD-76, p. 3 (citing OAG 76-375). 

Ordinarily, public agencies are required to make available for inspection records that might yield the information sought. 97-ORD-6, p. 5; 14-ORD-073. However, "[a] public agency is only able, in lieu of denying a request for information, to make any non-exempt records that may contain the information being sought available for inspection or copying if such records were created and currently exist in the possession or control of the agency." 10-ORD-156, p. 3. Here, DOC and BCFC affirmatively stated that no records exist in their possession that would yield the information Appellant seeks, and Appellant did not provide any evidence that such records do exist. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"). As such, BCFC properly denied the requests. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 In pertinent part, KRS 61.880(1) states: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."



 

20-ORD-056

LLM Generated Data

Appellant: Jason Eye

Agency: Metro

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

Metro did not violate the Open Records Act in denying Jason Eye's request for records from the Department of Codes and Regulations. The decision explains that Metro conducted a search in their electronic database based on the information provided by the appellant, but no responsive records were found. Since Jason Eye failed to make a prima facie case that responsive records exist, Metro was not required to explain the adequacy of its search. Despite this, Metro wisely explained its search methods on appeal. Therefore, Metro's denial of the request was found to be in compliance with the Act.

Cited Opinions

  • 12-ORD-030: F

    The decision affirms the denial of a request for nonexistent records where the appellant did not offer any irrefutable proof that such records were created or still exist.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On February 18, 2019, Jason Eye ("Appellant") emailed a request for records to Metro seeking records from the Department of Codes and Regulations ("Codes and Regulations"). Appellant requested a copy of "original code enforcement violation(s)" allegedly committed by a specific person on October 20, 2004, and requested the specific address of where the code enforcement violations occurred. Appellant also provided a possible address for the violations to assist in the search for records. Metro responded, "[t]here are no responsive records for this request." 

On March 18, 2020, Appellant appealed, stating he is personally aware of multiple violations filed against the property and individual named in his request. 1On appeal, Metro argues that Codes and Regulations complied with the requirements of the Act and described the search for responsive records by stating, "the staff at Codes and Regulations searched in their electronic database for the name on the ORR . . . as well as the address given on the ORR by [Appellant]. No information turned up for either." Metro stated that Codes and Regulations is prepared to conduct additional searches if Appellant can provide information in addition to the name and address initially provided, but that they were unable to identify responsive records exist based upon the limited information in his request. Metro also identified the Codes and Regulations website where Appellant could personally search the office's electronic records. 

The right to inspect and receive copies of public records only attaches if the records sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute an unsubstantiated claim that certain records exist. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To prove this negative, an agency must "present[] evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id . But the Bowling court held that this process is unduly burdensome to public agencies unless the requester first establishes a prima facie case that the requested records do exist. Id . " If the requester makes a prima facie showing that responsive records have not been accounted for, then the agency may also be called upon to prove that its search was adequate." 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013) (emphasis added). 

Here, Appellant has produced no affirmative evidence that responsive records exist beyond his mere belief that Metro possesses records relating to the property at issue that were allegedly created sixteen years ago. Although Appellant stated that he is personally aware of the existence of responsive records, no evidence supporting that belief exists in the record. Having failed to make a prima facie case, Metro was not required to explain the adequacy of its search. Id. See e.g , 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"). However, despite not being required to explain its search in the absence of a prima facie showing that records exist, Metro wisely explained its search methods on appeal. Metro explained that it searched its electronic archive using the information provided by Appellant and the electronic archives were empty. Based on the foregoing, Metro did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 On appeal, Appellant claimed that he first requested records in person at the Codes and Regulations office, but that he was questioned regarding the purpose of his request. There is no evidence in the record that this inquiry affected Metro's disposition of the request.



 

20-ORD-055

LLM Generated Data

Appellant: Tyler Murphy

Agency: FCPS

AG: Daniel Cameron

AAG: Marc Manley

Summary

The FCPS violated the Act by initially misdirecting the appellant on the proper procedure for submitting open records requests. The agency also violated the Act by withholding individual score sheets from the evaluation committee, which were adopted as part of the agency's final action. The attempt to withhold these score sheets was not justified by the exemptions cited by FCPS. The decision provides the opportunity for either party to appeal the ruling in the appropriate circuit court.

Cited Opinions

  • 20-ORD-052: O

    Explains how a public agency may comply with KRS 61.872 and KRS 61.876, which is relevant to the case at hand.

  • 10-ORD-164: O

    The decision is cited to show that the documents FCPS attempted to withhold are not sufficiently analogous to the 'work papers' found exempt under the preliminary exception, as FCPS attempted to argue.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On January 13, 2020, Tyler Murphy ("Appellant") emailed his request for certain open records to FCPS seeking a copy of the following: 

1. [T]he contract with Strothman & Company for auditing services commencing the 2019-2020 fiscal year, which was approved by the Fayette County Board of Education on December 19, 2019[;] 

2. [T]he proposals submitted by Strothman & Company and Barnes Dennig in response to [FCPS'] RFP for external audit services commencing the 19-20 fiscal year[;] 

3. [T]he specific criteria used in evaluating the proposals received in response to the above-referenced RFP, including criteria description and the weight assigned to each criterion[; and] 

4. [A]ny and all RFP evaluation, ranking, and/or score sheets completed for each of the proposals listed in item 2 above[.]

In its initial response to the request, FCPS violated the Act. Although Appellant initially submitted his request via e-mail, FCPS promptly responded to state that requests made under the Act must be submitted to FCPS via fax, mail, or hand-delivery. Appellant subsequently hand-delivered his request for records to FCPS. But on appeal, FCPS acknowledged that at the time of Appellant's request its open records policy expressly included e-mail as an acceptable means of submitting an open records request. 1It is that policy that explains the "procedures to be followed in requesting public records." KRS 61.876(1)(d); see 20-ORD-052 (explaining how a public agency may comply with KRS 61.872 and KRS 61.876). Although FCPS directed Appellant to follow its preferred procedure in requesting public records, that preference was not reflected in its own policy promulgated under KRS 61.876. Thus, FCPS "misdirected" Appellant and thereby subverted the intent of the Act "short of denial of inspection." KRS 61.880(4). 

After Appellant's e-mail request was rejected, he hand-delivered it to FCPS. In a timely written response, FCPS addressed each of Appellant's requests. First, FCPS notified Appellant that the requested contract did not exist because it had not been fully executed, but would be "finalized in April 2020" and available for inspection at that time. 

With regard to items 2 and 3 of the request, FCPS indicated that the proposals and criteria used to evaluate them were placed in two binders available for Appellant's inspection. On appeal, Appellant complains that he requested a "copy" of the subject proposals rather than asking to conduct onsite inspection of the records. According to FCPS, "the District prepared two, large binders containing the requested [records] for [Appellant] to pick up at a time of his choosing." FCPS further stated that a copy of the records has "been and will continue to be made available to him in whatever format he chooses." This appears to be a miscommunication and not a dispute ripe for this Office's review. Although Appellant stated he preferred electronic transmission, the Act does not require electronic transmission of responsive records if the records are not stored electronically. See KRS 61.874(2)(a). Additionally, Appellant did not specifically request the records by mail and there is no indication Appellant paid "all fees and the cost of mailing," which is required before the official custodian mails the records. KRS 61.872(3)(b). 

Finally, in item 4 of his request, Appellant also sought "any and all RFP evaluation, ranking, and/or score sheets completed for each of the proposals listed in item 2 above[.]" FCPS provided the final scores that were awarded to each firm, but denied item 4 of the request to the extent it sought "individual score sheets" from members of the evaluation committee convened to evaluate the proposals. Relying on KRS 61.878(1)(j), however, FCPS claimed that individual score sheets "are not final and are exempt from review." 

KRS 61.878(1)(i) exempts "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]" KRS 61.878(1)(j) exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"According to the Kentucky Supreme Court, "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." 

University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992) (citing 

City of Louisville v. Courier Journal and Louisville Times , 637 S.W.2d 658 (Ky. App. 1982)). And under that test, this Office must determine whether FCPS "adopted" the individual score sheets "as part of its action." Id . This Office finds that it did. 

"Final agency action" is understood as "when the ultimate issue to be decided [is] resolved." 

Univ. of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. App. 2013). Here, final action was taken when FCPS decided which audit firm would be awarded the contract under the request for proposal it had issued. FCPS made this decision first by causing members of an evaluation committee to assign their individual scores to each bidder. Then, the evaluation committee used each individual score to create three composite scores by averaging those individual scores together. Based on those composite scores, the committee recommended one proposal over the others and presented all of the composite scores to FCPS. In choosing the audit firm based on the composite scores presented, FCPS necessarily "adopted" the work of the evaluation committee, including the individual scores of each member of that committee. Thus, the individual score sheets lost their preliminary status under the rule announced in University of Kentucky , 830 S.W.2d at 378 and FCPS violated the Act in withholding them. 

In an attempt to withhold the individual score sheets, FCPS relies on this Office's analysis in 10-ORD-164 and attempts to analogize the score sheets to the "work papers" found exempt under the preliminary exception. However, this is not an accurate comparison and the documents are not sufficiently analogous. The "work papers" at issue in 10-ORD-164 were the "work papers" of an auditor, which are made confidential under KRS 325.420 and KRS 325.440. Because those "work papers" were deemed confidential by enactment of the General Assembly, they were exempt under KRS 61.878(1)(l) and not the preliminary records exemptions upon which FCPS relies here. And FCPS has not pointed to any statute making the score sheets confidential. Thus, neither KRS 61.878(1)(l) or the analysis in 10-ORD-164 are relevant here. 

Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 FCPS's argument that the inclusion of e-mail was a mistake is not persuasive. At the time of Appellant's request, e-mail was an accepted means of transmission.



 

20-ORD-055

LLM Generated Data

Appellant: Tyler Murphy

Agency: FCPS

AG: Daniel Cameron

AAG: Marc Manley

Summary

The FCPS violated the Act by initially misdirecting the appellant on the proper procedure for submitting open records requests. The FCPS also violated the Act by withholding individual score sheets related to the evaluation of audit proposals, as these sheets lost their preliminary status and were adopted as part of the agency's final action. The FCPS's attempt to withhold the score sheets by analogizing them to 'work papers' was deemed inaccurate. The appellant's request for the score sheets should have been granted. The FCPS's reliance on a previous analysis to withhold the score sheets was found to be irrelevant. The FCPS was found to have violated the Act in this regard.

Cited Opinions

  • 20-ORD-052: O

    Explains how a public agency may comply with KRS 61.872 and KRS 61.876, which is relevant to the case at hand.

  • 10-ORD-164: O

    FCPS relies on the analysis in 10-ORD-164 to withhold individual score sheets, but the documents in question are not sufficiently analogous to the 'work papers' found exempt under the preliminary exception in that case.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On January 13, 2020, Tyler Murphy ("Appellant") emailed his request for certain open records to FCPS seeking a copy of the following: 

1. [T]he contract with Strothman & Company for auditing services commencing the 2019-2020 fiscal year, which was approved by the Fayette County Board of Education on December 19, 2019[;] 

2. [T]he proposals submitted by Strothman & Company and Barnes Dennig in response to [FCPS'] RFP for external audit services commencing the 19-20 fiscal year[;] 

3. [T]he specific criteria used in evaluating the proposals received in response to the above-referenced RFP, including criteria description and the weight assigned to each criterion[; and] 

4. [A]ny and all RFP evaluation, ranking, and/or score sheets completed for each of the proposals listed in item 2 above[.]

 

In its initial response to the request, FCPS violated the Act. Although Appellant initially submitted his request via e-mail, FCPS promptly responded to state that requests made under the Act must be submitted to FCPS via fax, mail, or hand-delivery. Appellant subsequently hand-delivered his request for records to FCPS. But on appeal, FCPS acknowledged that at the time of Appellant's request its open records policy expressly included e-mail as an acceptable means of submitting an open records request. 1It is that policy that explains the "procedures to be followed in requesting public records." KRS 61.876(1)(d); see 20-ORD-052 (explaining how a public agency may comply with KRS 61.872 and KRS 61.876). Although FCPS directed Appellant to follow its preferred procedure in requesting public records, that preference was not reflected in its own policy promulgated under KRS 61.876. Thus, FCPS "misdirected" Appellant and thereby subverted the intent of the Act "short of denial of inspection." KRS 61.880(4). 

After Appellant's e-mail request was rejected, he hand-delivered it to FCPS. In a timely written response, FCPS addressed each of Appellant's requests. First, FCPS notified Appellant that the requested contract did not exist because it had not been fully executed, but would be "finalized in April 2020" and available for inspection at that time. 

With regard to items 2 and 3 of the request, FCPS indicated that the proposals and criteria used to evaluate them were placed in two binders available for Appellant's inspection. On appeal, Appellant complains that he requested a "copy" of the subject proposals rather than asking to conduct onsite inspection of the records. According to FCPS, "the District prepared two, large binders containing the requested [records] for [Appellant] to pick up at a time of his choosing." FCPS further stated that a copy of the records has "been and will continue to be made available to him in whatever format he chooses." This appears to be a miscommunication and not a dispute ripe for this Office's review. Although Appellant stated he preferred electronic transmission, the Act does not require electronic transmission of responsive records if the records are not stored electronically. See KRS 61.874(2)(a). Additionally, Appellant did not specifically request the records by mail and there is no indication Appellant paid "all fees and the cost of mailing," which is required before the official custodian mails the records. KRS 61.872(3)(b). 

Finally, in item 4 of his request, Appellant also sought "any and all RFP evaluation, ranking, and/or score sheets completed for each of the proposals listed in item 2 above[.]" FCPS provided the final scores that were awarded to each firm, but denied item 4 of the request to the extent it sought "individual score sheets" from members of the evaluation committee convened to evaluate the proposals. Relying on KRS 61.878(1)(j), however, FCPS claimed that individual score sheets "are not final and are exempt from review." 

KRS 61.878(1)(i) exempts "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]" KRS 61.878(1)(j) exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"According to the Kentucky Supreme Court, "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." 

University of Kentucky v. Courier-Journal & Louisville Times Co. , 830 S.W.2d 373, 378 (Ky. 1992) (citing 

City of Louisville v. Courier Journal and Louisville Times , 637 S.W.2d 658 (Ky. App. 1982)). And under that test, this Office must determine whether FCPS "adopted" the individual score sheets "as part of its action." Id . This Office finds that it did. 

"Final agency action" is understood as "when the ultimate issue to be decided [is] resolved." 

Univ. of Louisville v. Sharp , 416 S.W.3d 313, 315 (Ky. App. 2013). Here, final action was taken when FCPS decided which audit firm would be awarded the contract under the request for proposal it had issued. FCPS made this decision first by causing members of an evaluation committee to assign their individual scores to each bidder. Then, the evaluation committee used each individual score to create three composite scores by averaging those individual scores together. Based on those composite scores, the committee recommended one proposal over the others and presented all of the composite scores to FCPS. In choosing the audit firm based on the composite scores presented, FCPS necessarily "adopted" the work of the evaluation committee, including the individual scores of each member of that committee. Thus, the individual score sheets lost their preliminary status under the rule announced in University of Kentucky , 830 S.W.2d at 378 and FCPS violated the Act in withholding them. 

In an attempt to withhold the individual score sheets, FCPS relies on this Office's analysis in 10-ORD-164 and attempts to analogize the score sheets to the "work papers" found exempt under the preliminary exception. However, this is not an accurate comparison and the documents are not sufficiently analogous. The "work papers" at issue in 10-ORD-164 were the "work papers" of an auditor, which are made confidential under KRS 325.420 and KRS 325.440. Because those "work papers" were deemed confidential by enactment of the General Assembly, they were exempt under KRS 61.878(1)(l) and not the preliminary records exemptions upon which FCPS relies here. And FCPS has not pointed to any statute making the score sheets confidential. Thus, neither KRS 61.878(1)(l) or the analysis in 10-ORD-164 are relevant here. 

Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 FCPS's argument that the inclusion of e-mail was a mistake is not persuasive. At the time of Appellant's request, e-mail was an accepted means of transmission.



 

20-ORD-056

LLM Generated Data

Appellant: Jason Eye

Agency: Metro

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

Metro did not violate the Open Records Act in denying Jason Eye's request for records from the Department of Codes and Regulations. The decision explains that Metro did not have to prove a negative to refute an unsubstantiated claim that certain records exist. Since Jason Eye failed to make a prima facie case that responsive records exist, Metro was not required to explain the adequacy of its search. Despite this, Metro explained its search methods on appeal, stating that the electronic archives were empty. Therefore, Metro did not violate the Act.

Cited Opinions

  • 12-ORD-030: F

    The decision affirms the denial of the request for nonexistent records where the appellant did not offer any irrefutable proof that such records were created or still exist.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On February 18, 2019, Jason Eye ("Appellant") emailed a request for records to Metro seeking records from the Department of Codes and Regulations ("Codes and Regulations"). Appellant requested a copy of "original code enforcement violation(s)" allegedly committed by a specific person on October 20, 2004, and requested the specific address of where the code enforcement violations occurred. Appellant also provided a possible address for the violations to assist in the search for records. Metro responded, "[t]here are no responsive records for this request." 

On March 18, 2020, Appellant appealed, stating he is personally aware of multiple violations filed against the property and individual named in his request. 1On appeal, Metro argues that Codes and Regulations complied with the requirements of the Act and described the search for responsive records by stating, "the staff at Codes and Regulations searched in their electronic database for the name on the ORR . . . as well as the address given on the ORR by [Appellant]. No information turned up for either." Metro stated that Codes and Regulations is prepared to conduct additional searches if Appellant can provide information in addition to the name and address initially provided, but that they were unable to identify responsive records exist based upon the limited information in his request. Metro also identified the Codes and Regulations website where Appellant could personally search the office's electronic records. 

The right to inspect and receive copies of public records only attaches if the records sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute an unsubstantiated claim that certain records exist. 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). To prove this negative, an agency must "present[] evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id . But the Bowling court held that this process is unduly burdensome to public agencies unless the requester first establishes a prima facie case that the requested records do exist. Id . " If the requester makes a prima facie showing that responsive records have not been accounted for, then the agency may also be called upon to prove that its search was adequate." 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013) (emphasis added). 

Here, Appellant has produced no affirmative evidence that responsive records exist beyond his mere belief that Metro possesses records relating to the property at issue that were allegedly created sixteen years ago. Although Appellant stated that he is personally aware of the existence of responsive records, no evidence supporting that belief exists in the record. Having failed to make a prima facie case, Metro was not required to explain the adequacy of its search. Id. See e.g , 12-ORD-030 (affirming denial of request for nonexistent records where appellant did not offer any "irrefutable proof that such [records] were created or still exist"). However, despite not being required to explain its search in the absence of a prima facie showing that records exist, Metro wisely explained its search methods on appeal. Metro explained that it searched its electronic archive using the information provided by Appellant and the electronic archives were empty. Based on the foregoing, Metro did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 On appeal, Appellant claimed that he first requested records in person at the Codes and Regulations office, but that he was questioned regarding the purpose of his request. There is no evidence in the record that this inquiry affected Metro's disposition of the request.



 

20-ORD-059

LLM Generated Data

Appellant: Glenn S. Hayden

Agency: City

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The City was found to have violated the Open Records Act by improperly characterizing the appellant's request and failing to adequately explain the search for responsive records. The City did not comply with the requirements of the Act in responding to the appellant's request.

Cited Opinions

  • 20-ORD-052: O

    The decision resolves an appeal initiated by the appellant regarding the City's handling of his request for records verifying the payment of Occupational taxes. The decision finds that the City violated the Open Records Act by failing to comply with the request for specific records and not adequately explaining the search for responsive documents.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On January 28, 2020, Glenn S. Hayden ("Appellant") requested a copy of "records verifying the payment of Occupational taxes to the [City] due to Annexation from Graves County Board of Education ["Board"] for the period beginning January 1, 2016 through December 31, 2017." 1Appellant specified that "records of verification" should include "amounts paid, date each payment was made . . . invoices/billing statements, copy of [Board] payment instrument(s), etc." The City Clerk/Treasurer responded, stating that the City received from the Board the "3rd and 4th quarter 2017, occupational taxes on May 18, 2018. The amount paid at the time was $ 30,028.03." She further stated that she was not "aware" if invoices were sent "as this was being handled by our attorney." The City agreed to provide Appellant with a copy of the check that it received from the Board upon receiving his payment of the copying fee. 

On February 9, 2020, Appellant initiated this appeal, emphasizing that he asked for "specific records" and "further clarified" the information those records would contain. He also complained the City only provided information that was readily available via local media outlets and failed to provide any indication that it attempted to identify, locate, or provide access to any responsive documents except for the aforementioned check. In response, the City maintained that it had fully complied with Appellant's request. The City asserted that a public agency is not required to "gather and supply information independent of that which is set forth in public records." The City further stated it "has either disclosed or made available to [Appellant] all records in the possession of the [City responsive to] the request." For the following reasons, the City violated the Act. 

The City improperly characterized Appellant's request as one seeking information rather than records. Under KRS 61.872(1), "all public records shall be open for inspection by any person[.]" KRS 61.870(2) broadly defines "public records," but the definition does not include "information." See 

Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013). Here, Appellant requested invoices and billing documentation that would encompass a specific transaction, namely, the payment of occupational taxes. Appellant sufficiently described "books, papers . . . or other documentation regardless of physical form" that may be in the City's possession. KRS 61.870(2). 

Because Appellant sufficiently described "public records" he sought to inspect, the City was required to "determine within three (3) [business] days . . . after the receipt of [the] request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." KRS 61.880(1). Of course, Kentucky courts recognize that a public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the agency's possession unless the requester first makes a prima facie showing. See 

Bowling v. Lexington Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-341 (Ky. 2005). Here, the City admitted that occupational taxes were paid. The City acknowledged that a check existed, but simply stated it was not "aware" of any other responsive records because its attorney "handled" the matter. Once Appellant made a prima facie showing that the City paid occupational taxes, the City was required to explain the adequacy of its search to carry its burden of establishing that no additional records existed. See KRS 61.880(2)(c); 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013). 

Here, the City failed to state explicitly that no additional records existed or explain that it conducted any search, despite there being prima facie evidence that additional responsive records could exist. The City's "limited and perfunctory response [does not] even remotely comply with the requirements of the Act[.]" 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). There is no suggestion that the City attempted to contact the City Attorney to determine if responsive records did, in fact, exist. 2Had it done so, it may have discovered additional responsive records. At the very least, this would have demonstrated the City had attempted to conduct a reasonable search. Because the City failed to carry its burden of proving that it conducted an adequate search for responsive records after Appellant made a prima facie case that additional responsive records should exist, the City violated the Act. 

Either party may appeal this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant initiated two appeals in response to the City's disposition of his request. In the first appeal, Appellant objected to the City denying his request because he sent it via e-mail. This Office resolved that appeal in 20-ORD-052.

2 Records "which are prepared, owned, used, in the possession of or retained by a public agency" are "public records" and thus are subject to the Act, unless they are exempt. KRS 61.870(2). The City Attorney is an agent for the City. See Edmondson , 926 S.W.2d at 859 (finding a county attorney "acts as an agent of [CHFS] with respect to administering [the IV-D] program."). The City's non-exempt records relating to the City's finances are "prepared, owned, [and] used" by the City, and they are in the City's "possession" even when its agent, the City Attorney, may actually hold them. Under the express terms of the Act, such records are subject to inspection.



 

20-ORD-059

LLM Generated Data

Appellant: Glenn S. Hayden

Agency: City

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The City violated the Open Records Act by improperly characterizing the appellant's request and failing to adequately respond to the request for public records. The decision clarifies that public agencies must comply with the Act's requirements when handling requests for public records.

Cited Opinions

  • 20-ORD-052: O

    The decision addresses an appeal where the City improperly characterized the appellant's request as seeking information rather than records, which violated the Open Records Act. The decision clarifies the requirements for public agencies to respond to requests for public records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On January 28, 2020, Glenn S. Hayden ("Appellant") requested a copy of "records verifying the payment of Occupational taxes to the [City] due to Annexation from Graves County Board of Education ["Board"] for the period beginning January 1, 2016 through December 31, 2017." 1Appellant specified that "records of verification" should include "amounts paid, date each payment was made . . . invoices/billing statements, copy of [Board] payment instrument(s), etc." The City Clerk/Treasurer responded, stating that the City received from the Board the "3rd and 4th quarter 2017, occupational taxes on May 18, 2018. The amount paid at the time was $ 30,028.03." She further stated that she was not "aware" if invoices were sent "as this was being handled by our attorney." The City agreed to provide Appellant with a copy of the check that it received from the Board upon receiving his payment of the copying fee. 

On February 9, 2020, Appellant initiated this appeal, emphasizing that he asked for "specific records" and "further clarified" the information those records would contain. He also complained the City only provided information that was readily available via local media outlets and failed to provide any indication that it attempted to identify, locate, or provide access to any responsive documents except for the aforementioned check. In response, the City maintained that it had fully complied with Appellant's request. The City asserted that a public agency is not required to "gather and supply information independent of that which is set forth in public records." The City further stated it "has either disclosed or made available to [Appellant] all records in the possession of the [City responsive to] the request." For the following reasons, the City violated the Act. 

The City improperly characterized Appellant's request as one seeking information rather than records. Under KRS 61.872(1), "all public records shall be open for inspection by any person[.]" KRS 61.870(2) broadly defines "public records," but the definition does not include "information." See 

Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013). Here, Appellant requested invoices and billing documentation that would encompass a specific transaction, namely, the payment of occupational taxes. Appellant sufficiently described "books, papers . . . or other documentation regardless of physical form" that may be in the City's possession. KRS 61.870(2). 

Because Appellant sufficiently described "public records" he sought to inspect, the City was required to "determine within three (3) [business] days . . . after the receipt of [the] request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." KRS 61.880(1). Of course, Kentucky courts recognize that a public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the agency's possession unless the requester first makes a prima facie showing. See 

Bowling v. Lexington Fayette Urban Cty. Gov't , 172 S.W.3d 333, 340-341 (Ky. 2005). Here, the City admitted that occupational taxes were paid. The City acknowledged that a check existed, but simply stated it was not "aware" of any other responsive records because its attorney "handled" the matter. Once Appellant made a prima facie showing that the City paid occupational taxes, the City was required to explain the adequacy of its search to carry its burden of establishing that no additional records existed. See KRS 61.880(2)(c); 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013). 

Here, the City failed to state explicitly that no additional records existed or explain that it conducted any search, despite there being prima facie evidence that additional responsive records could exist. The City's "limited and perfunctory response [does not] even remotely comply with the requirements of the Act[.]" 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). There is no suggestion that the City attempted to contact the City Attorney to determine if responsive records did, in fact, exist. 2Had it done so, it may have discovered additional responsive records. At the very least, this would have demonstrated the City had attempted to conduct a reasonable search. Because the City failed to carry its burden of proving that it conducted an adequate search for responsive records after Appellant made a prima facie case that additional responsive records should exist, the City violated the Act. 

Either party may appeal this decision may appeal it by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant initiated two appeals in response to the City's disposition of his request. In the first appeal, Appellant objected to the City denying his request because he sent it via e-mail. This Office resolved that appeal in 20-ORD-052.

2 Records "which are prepared, owned, used, in the possession of or retained by a public agency" are "public records" and thus are subject to the Act, unless they are exempt. KRS 61.870(2). The City Attorney is an agent for the City. See Edmondson , 926 S.W.2d at 859 (finding a county attorney "acts as an agent of [CHFS] with respect to administering [the IV-D] program."). The City's non-exempt records relating to the City's finances are "prepared, owned, [and] used" by the City, and they are in the City's "possession" even when its agent, the City Attorney, may actually hold them. Under the express terms of the Act, such records are subject to inspection.



 

20-ORD-060

LLM Generated Data

Appellant: Dwayne Winfield

Agency: The Complex

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Complex violated the Open Records Act by failing to properly cite the specific exception authorizing the denial of the PREA report requested by Dwayne Winfield. While the report was properly denied due to confidentiality under federal law, the agency's failure to cite the specific exception was a substantive violation of the Act. The decision emphasizes the importance of citing the correct legal basis for denying access to requested records. The appellant may appeal the decision in the appropriate circuit court. The Attorney General should be notified of any action in circuit court, but should not be named as a party in the action or subsequent proceedings.

Cited Opinions

  • 18-ORD-206: W

    The decision addresses the denial of a request for a PREA report based on confidentiality under federal law. It highlights the agency's failure to properly cite the specific exception authorizing the denial.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The Complex properly denied inmate Dwayne Winfield's ("Appellant") February 6, 2020, request for copies of the PREA report he filed on April 15, 2019, in which he alleged sexual abuse by a staff member. Under 28 CFR § 115.61(b), the record requested was confidential. 1Nevertheless, the Complex's response failed to cite the "specific exception" authorizing its denial and failed to give "a brief explanation of how the exception applies to the record withheld," as required by KRS 61.880(1). 

Specifically, the Complex's initial response stated: 

The requested PREA investigation documents will not be provided due to the confidential nature of the investigation and security and privacy concerns associated with releasing documentation given the subject matter of the investigation. KRS 61.878(1)(a), KRS 61.878(1)(l), KRS 197.025(1). The confidentiality standards contained in the Prison Rape Elimination Act, 34 U.S.C. 30301 et seq. and CPP 14.7, in tandem with KRS 197.025(1) and (2), limit access to PREA investigation records.

Appellant initiated this appeal, arguing that he should be able to obtain the report because it related to him. 

KRS 61.878(1)(k) creates an exception to the Act for "all public records or information the disclosure of which is prohibited by federal law or regulation." Although the Complex cited "34 U.S.C. 30301 et seq.," there is no provision in the PREA that expressly makes confidential the records that Appellant requested. Rather, in 34 U.S.C. 30306(e)(2)(J), Congress delegated the means for establishing the confidentiality of prison rape complaints to a Commission that was required to create national standards for such confidentiality and report those standards to the United States Attorney General. Under 34 U.S.C. 30306(e)(2)(J), the Department of Justice promulgated 28 CFR 115.61(b), which provides: 

Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.

When an agency denies access to a requested record, it must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1) (emphasis added). When an agency relies upon KRS 61.878(1)(k) or (l), the agency must cite the specific federal or state law requiring confidentiality to satisfy this obligation. See 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). Here, the actual authority for the exemption claimed by the Complex is 28 CFR 115.61(b). But the Complex's response cited only its own policy, 2not 28 CFR 115.61(b). KRS 61.878(1)(k) and (l) incorporate federal law and enactments of the General Assembly requiring confidentiality, not administrative regulations promulgated by state agencies. Therefore, although the Complex properly denied Appellant access to the requested PREA report because it is confidential under federal law, the Complex violated the Act in failing to cite the specific exception authorizing this action. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Under 28 CFR 115.73, a person who submitted a complaint is entitled to information regarding whether the complaint was substantiated or unsubstantiated. If substantiated, the victim is also entitled to know additional information about corrective action taken against the perpetrator. The Complex provided the information to which Appellant was entitled.

2 CPP 14.7 is incorporated by reference in 501 KAR 6:020 § 1. In 18-ORD-206, this Office found that this Department of Corrections ("DOC") policy imposed no further restrictions on access to public records than required by 28 CFR 115.61(b). Also in that decision, this Office found that DOC violated the Act when it failed to cite 28 CFR 115.61(b).



 

20-ORD-060

LLM Generated Data

Appellant: Dwayne Winfield

Agency: The Complex

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The agency properly denied the inmate's request for the PREA report based on confidentiality standards under 28 CFR 115.61(b). However, the agency violated the Open Records Act by failing to cite the specific exception authorizing the denial. The inmate was entitled to information regarding whether the complaint was substantiated or unsubstantiated, and the agency failed to properly cite the relevant federal law for confidentiality. The decision allows for appeal through the appropriate circuit court.

Cited Opinions

  • 18-ORD-206: O

    The decision addresses the denial of inmate Dwayne Winfield's request for a PREA report, citing the confidentiality standards under 28 CFR 115.61(b) and discussing the failure of the agency to properly cite the specific exception for denial.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

The Complex properly denied inmate Dwayne Winfield's ("Appellant") February 6, 2020, request for copies of the PREA report he filed on April 15, 2019, in which he alleged sexual abuse by a staff member. Under 28 CFR § 115.61(b), the record requested was confidential. 1Nevertheless, the Complex's response failed to cite the "specific exception" authorizing its denial and failed to give "a brief explanation of how the exception applies to the record withheld," as required by KRS 61.880(1). 

Specifically, the Complex's initial response stated: 

The requested PREA investigation documents will not be provided due to the confidential nature of the investigation and security and privacy concerns associated with releasing documentation given the subject matter of the investigation. KRS 61.878(1)(a), KRS 61.878(1)(l), KRS 197.025(1). The confidentiality standards contained in the Prison Rape Elimination Act, 34 U.S.C. 30301 et seq. and CPP 14.7, in tandem with KRS 197.025(1) and (2), limit access to PREA investigation records.

 

Appellant initiated this appeal, arguing that he should be able to obtain the report because it related to him. 

KRS 61.878(1)(k) creates an exception to the Act for "all public records or information the disclosure of which is prohibited by federal law or regulation." Although the Complex cited "34 U.S.C. 30301 et seq.," there is no provision in the PREA that expressly makes confidential the records that Appellant requested. Rather, in 34 U.S.C. 30306(e)(2)(J), Congress delegated the means for establishing the confidentiality of prison rape complaints to a Commission that was required to create national standards for such confidentiality and report those standards to the United States Attorney General. Under 34 U.S.C. 30306(e)(2)(J), the Department of Justice promulgated 28 CFR 115.61(b), which provides: 

Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.

 

When an agency denies access to a requested record, it must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1) (emphasis added). When an agency relies upon KRS 61.878(1)(k) or (l), the agency must cite the specific federal or state law requiring confidentiality to satisfy this obligation. See 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996). Here, the actual authority for the exemption claimed by the Complex is 28 CFR 115.61(b). But the Complex's response cited only its own policy, 2not 28 CFR 115.61(b). KRS 61.878(1)(k) and (l) incorporate federal law and enactments of the General Assembly requiring confidentiality, not administrative regulations promulgated by state agencies. Therefore, although the Complex properly denied Appellant access to the requested PREA report because it is confidential under federal law, the Complex violated the Act in failing to cite the specific exception authorizing this action. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Under 28 CFR 115.73, a person who submitted a complaint is entitled to information regarding whether the complaint was substantiated or unsubstantiated. If substantiated, the victim is also entitled to know additional information about corrective action taken against the perpetrator. The Complex provided the information to which Appellant was entitled.

2 CPP 14.7 is incorporated by reference in 501 KAR 6:020 § 1. In 18-ORD-206, this Office found that this Department of Corrections ("DOC") policy imposed no further restrictions on access to public records than required by 28 CFR 115.61(b). Also in that decision, this Office found that DOC violated the Act when it failed to cite 28 CFR 115.61(b).



 

20-ORD-061

LLM Generated Data

Appellant: Zachery Combest

Agency: University

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The University violated the Act by delaying the final disposition of the request without providing a detailed explanation for the cause of the delay. However, the University did not violate the Act in its reliance on the personal privacy exemption to redact personal email addresses. The University adequately explained the other exemptions it relied upon and met its burden that no additional responsive records exist.

Cited Opinions

  • 12-ORD-097: O

    The decision is cited as an example of the Act being violated when the agency delays the final disposition of a request without providing a detailed explanation for the cause of the delay.

  • 16-ORD-205: F

    Cited as an example of the University properly relying on the personal privacy exemption in KRS 61.878(1)(a) to redact personal email addresses.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 28, 2019, Zachery Combest ("Appellant") submitted an open records request to the University seeking, "all emails to and/or from" a list of 12 University staff members, "from October 1, 2019 until October 28, 2019 concerning the position of Director of Athletics at Eastern Kentucky University." 

On October 31, 2010, the University responded that "[g]iven the extent and breadth of the request, the number of individual items which [Appellant is] requesting and the time . . . to review and conduct necessary redactions, [the University] will need more time to obtain, review, and determine which records are responsive[.]" The University stated that the records would be made available on November 26, 2019. On November 18, 2019, the University further explained how Appellant's request was broad and the cause for delay. 

On November 26, 2019, the University also provided Appellant 33 pages of responsive records, consisting of 14 emails and attachments. The University stated that the records were redacted or withheld under KRS 61.878(1)(a) to remove "information of a personal nature, such as personal email addresses," revisions "to a working draft" under KRS 61.878(1)(i), "correspondence and documents which are attorney work product and/or attorney/client privileged" under KRE 503 and KRS 61.878(1)(l). 

On appeal, Appellant argues that the University's delay was not justified because "records should have been easy to locate and review[.]" Appellant also disputed the University's broad assertion of exceptions, arguing "it has not explained exactly what it is withholding or why[.]" Appellant also argued that the preliminary exemption is inapplicable because the employee to which the emails relate had resigned, and therefore the records were no longer preliminary. Finally, Appellant argued that the University's subsequent correspondence raised doubts that it had produced all existing responsive records because the University originally stated that the request implicated hundreds of records, yet it produced 33 pages of records. In response, the University explained in detail how the parameters of the email search contributed to the delay. Specifically, the University's search had resulted in 8,000 pages and 2,371 emails. 

On appeal, the University also explained in detail which redactions were associated with certain preliminary records and attorney-client communications, and how the asserted exceptions applied. Finally, the University affirmatively stated that all potentially responsive pages were reviewed and no additional responsive records exist in its possession. 

First , the University's initial response violated the Act when it delayed the final disposition of Appellant's request. KRS 61.880(1) requires a public agency to determine within three business days whether to comply with a request for records. KRS 61.872(5) authorizes a public agency to temporarily delay access to public records "[i]f the public record is in active use, in storage or not otherwise available[.]" But the agency must give "a detailed explanation of the cause" for the delay and provide "the place, time, and earliest date on which the public record will be available for inspection." KRS 61.872(5). 

Although not defined under the Act, "available" means "present or ready for immediate use" according to Merriam-Webster's Dictionary. The process of retrieving, reviewing, and redacting records is not an "unreasonable burden" under the Act sufficient to completely deny the request. KRS 61.872(6); see also 

Commonwealth v. Chestnut , 250 S.W.3d 655, 665 (Ky. 2005) (finding that consumption of time and manpower is not an unreasonable burden.). But, in some circumstances, the process may require such additional time that the records are not "ready for immediate use." Thus while denial of the request may be improper, a delay may be proper so long as the agency complies with KRS 61.872(5) and gives a detailed explanation for the cause of delay. See, e.g. , 12-ORD-097. 

In its original response on October 31, 2019, the University claimed, without explanation, that Appellant's request was broad and asserted that it needed additional time to comply. This initial response was deficient because it failed to explain in detail how the request was so broad that it encompassed records "not otherwise available." KRS 61.872(5). However, the University's subsequent response on November 18, 2019 explained that Appellant's request produced 600 pages of potentially responsive records from just two of the twelve email accounts because a search for "Director of Athletics" produced hundreds of emails that included that term. 1On appeal, the University explained that once all twelve email accounts were searched, 8,000 pages of potentially responsive records were discovered. The University was then required to review each email to determine whether its contents were responsive to the request. 

In addition to reviewing each email for responsiveness, the University also had to ensure no confidential material was inadvertently released. As such, the University's subsequent response adequately explained why the requested records were "not otherwise available" under KRS 61.872(5). The University's subsequent response complied with KRS 61.878(5) by explaining why the records were not otherwise available, and stating records would be available on November 26, 2019, less than thirty days after Appellant's request. But its subsequent explanation occurred more than three business days after Appellant's request. Therefore, its initial response violated the Act. KRS 61.880(1); KRS 61.872(5). 

Second , the University's final disposition of Appellant's request did not adequately explain the University's reliance on the attorney-client privilege. Under the Act, an "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). The University's final disposition of the request stated that it was withholding "emails between University Counsel and various individuals" under the attorney-client privilege. The University correctly cited the specific exception, KRE 503 and KRS 61.878(1)(l). However, the University failed to explain how the attorney-client privilege applied to the records withheld. Under KRE 503(b), the privilege encompasses any confidential communication between a lawyer and a client or a representative of the client that is "made for the purpose of facilitating the rendition of professional legal services to the client." The University's description of the withheld emails failed to state that the emails contained communications "facilitating the rendition of professional legal services" and it failed to state that such communications were directed to or from "clients." On its face, "various individuals" provides no indication that those individuals were clients seeking legal advice. 

On appeal, the University described the contents of the emails withheld and confirmed that the communication was solely between University counsel and employees for the rendition of legal advice. While the University eventually justified its reliance on the attorney-client privilege, and this Office agrees that it does apply to the records withheld, the University's failure to provide this explanation in its response to the Appellant constitutes a violation of KRS 61.880(1). 

Third , the University's response did adequately explain the other exemptions it relied upon. Specifically, the University's response explained that "edits to a working draft" were withheld or redacted. KRS 61.878(1)(i) exempts, "preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency." The records the University produced contained an email chain with the subject line "drafts" and statements by employees indicating changes had been made and sought review of those changes. Another email contained the final press release that was issued. The University adequately explained that the subject draft was a "working draft," and the unredacted contents of the emails support this assertion. The revisions that were adopted by the University are contained in the final press release, a copy of which was provided to Appellant. Accordingly, the University did not violate the Act in its reliance on this exception. 

Likewise, the University properly relied on the personal privacy exemption in KRS 61.878(1)(a) to redact personal email addresses. In 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013), the Supreme Court upheld the categorical redaction of certain information, such as home addresses and telephone numbers and Social Security numbers, because it is not routinely pertinent to the public interest served by the Open Records Act. Personal email addresses are no different than personal telephone numbers, which this Office has previously found appropriate for redaction under this exemption. See, e.g. , 16-ORD-205. Accordingly, the University properly relied on KRS 61.878(1)(a) and did not violate the Act because it explained the redaction applied only to personal email addresses. 

Finally, the University met its burden that no additional responsive records exist. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). Only after the requester establishes a prima facie case that additional records exist is the public agency required to explain the adequacy of its search. 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013). Here, Appellant only speculates additional responsive records should exist because the University previously explained that his broad request implicated 600 emails. But just because the initial search presents potentially responsive records does not mean that the records are actually responsive following review. Even though Appellant failed to establish a prima facie case, the University explained the adequacy of its search both in its subsequent correspondence to Appellant on November 18, 2019, and in its response on appeal. Accordingly, the University met its obligation under the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Some of the employees encompassed by the request had a variation of the term "Director of Athletics" as their job title, such as "Senior Associate Director of Athletics", and each of the employee emails concluded with their title as part of the electronic signature, resulting in numerous potentially responsive records.



 

20-ORD-061

LLM Generated Data

Appellant: Zachery Combest

Agency: University

AG: Daniel Cameron

AAG: J. Marcus Jones

Summary

The University violated the Act by delaying the final disposition of the request without providing a detailed explanation for the cause of the delay. The University also did not adequately explain its reliance on the attorney-client privilege, which constitutes a violation of the Act. However, the University properly explained and applied the exemptions for redacting personal email addresses and other exemptions. The University met its obligation by explaining the adequacy of its search for responsive records. The decision does not find any subversion of the law.

Cited Opinions

  • 12-ORD-097: O

    The decision is cited as an example of the Act being violated when the agency delays the final disposition of a request and fails to provide a detailed explanation for the cause of the delay.

  • 16-ORD-205: F

    Cited as an example of the agency properly relying on the personal privacy exemption to redact personal email addresses.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;J. Marcus Jones,Assistant Attorney General 

Open Records Decision 

On October 28, 2019, Zachery Combest ("Appellant") submitted an open records request to the University seeking, "all emails to and/or from" a list of 12 University staff members, "from October 1, 2019 until October 28, 2019 concerning the position of Director of Athletics at Eastern Kentucky University." 

On October 31, 2010, the University responded that "[g]iven the extent and breadth of the request, the number of individual items which [Appellant is] requesting and the time . . . to review and conduct necessary redactions, [the University] will need more time to obtain, review, and determine which records are responsive[.]" The University stated that the records would be made available on November 26, 2019. On November 18, 2019, the University further explained how Appellant's request was broad and the cause for delay. 

On November 26, 2019, the University also provided Appellant 33 pages of responsive records, consisting of 14 emails and attachments. The University stated that the records were redacted or withheld under KRS 61.878(1)(a) to remove "information of a personal nature, such as personal email addresses," revisions "to a working draft" under KRS 61.878(1)(i), "correspondence and documents which are attorney work product and/or attorney/client privileged" under KRE 503 and KRS 61.878(1)(l). 

On appeal, Appellant argues that the University's delay was not justified because "records should have been easy to locate and review[.]" Appellant also disputed the University's broad assertion of exceptions, arguing "it has not explained exactly what it is withholding or why[.]" Appellant also argued that the preliminary exemption is inapplicable because the employee to which the emails relate had resigned, and therefore the records were no longer preliminary. Finally, Appellant argued that the University's subsequent correspondence raised doubts that it had produced all existing responsive records because the University originally stated that the request implicated hundreds of records, yet it produced 33 pages of records. In response, the University explained in detail how the parameters of the email search contributed to the delay. Specifically, the University's search had resulted in 8,000 pages and 2,371 emails. 

On appeal, the University also explained in detail which redactions were associated with certain preliminary records and attorney-client communications, and how the asserted exceptions applied. Finally, the University affirmatively stated that all potentially responsive pages were reviewed and no additional responsive records exist in its possession. 

First , the University's initial response violated the Act when it delayed the final disposition of Appellant's request. KRS 61.880(1) requires a public agency to determine within three business days whether to comply with a request for records. KRS 61.872(5) authorizes a public agency to temporarily delay access to public records "[i]f the public record is in active use, in storage or not otherwise available[.]" But the agency must give "a detailed explanation of the cause" for the delay and provide "the place, time, and earliest date on which the public record will be available for inspection." KRS 61.872(5). 

Although not defined under the Act, "available" means "present or ready for immediate use" according to Merriam-Webster's Dictionary. The process of retrieving, reviewing, and redacting records is not an "unreasonable burden" under the Act sufficient to completely deny the request. KRS 61.872(6); see also 

Commonwealth v. Chestnut , 250 S.W.3d 655, 665 (Ky. 2005) (finding that consumption of time and manpower is not an unreasonable burden.). But, in some circumstances, the process may require such additional time that the records are not "ready for immediate use." Thus while denial of the request may be improper, a delay may be proper so long as the agency complies with KRS 61.872(5) and gives a detailed explanation for the cause of delay. See, e.g. , 12-ORD-097. 

In its original response on October 31, 2019, the University claimed, without explanation, that Appellant's request was broad and asserted that it needed additional time to comply. This initial response was deficient because it failed to explain in detail how the request was so broad that it encompassed records "not otherwise available." KRS 61.872(5). However, the University's subsequent response on November 18, 2019 explained that Appellant's request produced 600 pages of potentially responsive records from just two of the twelve email accounts because a search for "Director of Athletics" produced hundreds of emails that included that term. 1On appeal, the University explained that once all twelve email accounts were searched, 8,000 pages of potentially responsive records were discovered. The University was then required to review each email to determine whether its contents were responsive to the request. 

In addition to reviewing each email for responsiveness, the University also had to ensure no confidential material was inadvertently released. As such, the University's subsequent response adequately explained why the requested records were "not otherwise available" under KRS 61.872(5). The University's subsequent response complied with KRS 61.878(5) by explaining why the records were not otherwise available, and stating records would be available on November 26, 2019, less than thirty days after Appellant's request. But its subsequent explanation occurred more than three business days after Appellant's request. Therefore, its initial response violated the Act. KRS 61.880(1); KRS 61.872(5). 

Second , the University's final disposition of Appellant's request did not adequately explain the University's reliance on the attorney-client privilege. Under the Act, an "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880(1). The University's final disposition of the request stated that it was withholding "emails between University Counsel and various individuals" under the attorney-client privilege. The University correctly cited the specific exception, KRE 503 and KRS 61.878(1)(l). However, the University failed to explain how the attorney-client privilege applied to the records withheld. Under KRE 503(b), the privilege encompasses any confidential communication between a lawyer and a client or a representative of the client that is "made for the purpose of facilitating the rendition of professional legal services to the client." The University's description of the withheld emails failed to state that the emails contained communications "facilitating the rendition of professional legal services" and it failed to state that such communications were directed to or from "clients." On its face, "various individuals" provides no indication that those individuals were clients seeking legal advice. 

On appeal, the University described the contents of the emails withheld and confirmed that the communication was solely between University counsel and employees for the rendition of legal advice. While the University eventually justified its reliance on the attorney-client privilege, and this Office agrees that it does apply to the records withheld, the University's failure to provide this explanation in its response to the Appellant constitutes a violation of KRS 61.880(1). 

Third , the University's response did adequately explain the other exemptions it relied upon. Specifically, the University's response explained that "edits to a working draft" were withheld or redacted. KRS 61.878(1)(i) exempts, "preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency." The records the University produced contained an email chain with the subject line "drafts" and statements by employees indicating changes had been made and sought review of those changes. Another email contained the final press release that was issued. The University adequately explained that the subject draft was a "working draft," and the unredacted contents of the emails support this assertion. The revisions that were adopted by the University are contained in the final press release, a copy of which was provided to Appellant. Accordingly, the University did not violate the Act in its reliance on this exception. 

Likewise, the University properly relied on the personal privacy exemption in KRS 61.878(1)(a) to redact personal email addresses. In 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 83 (Ky. 2013), the Supreme Court upheld the categorical redaction of certain information, such as home addresses and telephone numbers and Social Security numbers, because it is not routinely pertinent to the public interest served by the Open Records Act. Personal email addresses are no different than personal telephone numbers, which this Office has previously found appropriate for redaction under this exemption. See, e.g. , 16-ORD-205. Accordingly, the University properly relied on KRS 61.878(1)(a) and did not violate the Act because it explained the redaction applied only to personal email addresses. 

Finally, the University met its burden that no additional responsive records exist. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See 

Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005). Only after the requester establishes a prima facie case that additional records exist is the public agency required to explain the adequacy of its search. 

City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 848 n.3 (Ky. 2013). Here, Appellant only speculates additional responsive records should exist because the University previously explained that his broad request implicated 600 emails. But just because the initial search presents potentially responsive records does not mean that the records are actually responsive following review. Even though Appellant failed to establish a prima facie case, the University explained the adequacy of its search both in its subsequent correspondence to Appellant on November 18, 2019, and in its response on appeal. Accordingly, the University met its obligation under the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Some of the employees encompassed by the request had a variation of the term "Director of Athletics" as their job title, such as "Senior Associate Director of Athletics", and each of the employee emails concluded with their title as part of the electronic signature, resulting in numerous potentially responsive records.



 

20-ORD-062

LLM Generated Data

Appellant: Gerry L. Calvert

Agency: Commonwealth Office of Technology

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Commonwealth Office of Technology (COT) violated the Open Records Act by not providing the requested COT-F084 forms or any explanation justifying their withholding. The decision clarifies that while COT is not the custodian of all electronic records in the Commonwealth, it is the custodian of forms submitted by other public agencies to request its services. The agency's failure to provide the requested forms or state their existence constitutes a violation of the Act.

Cited Opinions

  • 19-ORD-091: O

    The decision exhaustively analyzed the responsibilities and role of the Commonwealth Office of Technology (COT) regarding electronic records, establishing that COT is not the custodian of all electronic records in the Commonwealth, but is the custodian of forms other public agencies may submit to request its services.

  • 20-ORD-009: O

    The decision is cited to illustrate that although a public agency may have access to a particular record, it does not necessarily make that agency the custodian of the record.

  • 15-ORD-190: O

    The decision is referenced to show that while a public agency may have access to certain records, the custody and control of those records may still lie with another entity, such as local school districts maintaining custody of their emails despite the Kentucky Department of Education having access to them.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On February 27, 2020, Gerry L. Calvert ("Appellant") requested a copy of the following public records: 

1) Any e-mail sent or received, from September 20, 2019, through February 26, 2020 by 14 named state employees; 

2) Any COT-F084 forms submitted to COT by any employee or agent of the Kentucky Department of Criminal Justice Training ("DOCJT"); and 

3) Any word processing document created, edited, or deleted on any computer or other electronic device issued to DOCJT employee Joey Barnes (Joey.Barnes@ky.gov), from September 20, 2019, through January 28, 2020.

 

On March 26, 2020, Appellant initiated this appeal alleging that COT had not provided any response as of that date. 1 

Under the Act, each public agency must designate an official custodian of records and identify the "title and address of the official custodian of the public agency's records." KRS 61.876(1)(b). On appeal, COT argues that it "is not the Official Custodian of all agency client records" within the meaning of KRS 61.870(5). COT asserted that "[n]ot only would COT abuse its authority by disclosing client data without permission, but it [is] not well-equipped in a practical sense to make determinations about agency-specific laws prohibiting disclosure of certain data[.]" This Office agrees. 

COT is not an officer or employee of DOCJT, the state agency to which Appellant should have directed his first and third requests. That is because COT is not "responsible for the maintenance" of DOCJT's records, and it does not maintain "personal custody and control" of DOCJT's records. See KRS 61.870(5); KRS 61.870(6). KRS 42.726 identifies the roles, duties, and permissible activities for COT. In short, COT provides "technical support and services to all executive agencies of state government in the application of information technology." KRS 42.726(2)(a). Therefore, COT can provide technical support for agencies in fulfilling open records requests, but COT is not the custodian to which a requester should make a request for public records merely because the requester seeks electronic records. In 19-ORD-091, this Office exhaustively analyzed COT's responsibilities and role regarding electronic records. The analysis contained therein applies equally in this appeal for Appellant's first and third requests. 

Quite simply, the fact that a public agency may have access to a particular record does not make that agency the custodian of the record. For example, the Kentucky Department for Libraries and Archives possesses court records for the purpose of providing archival services to Kentucky courts, but the Kentucky Supreme Court retains control of those records. See, e.g. , 20-ORD-009. And the Kentucky Department of Education has access to the e-mails of local school districts, but the local districts maintain the custody and control of those e-mails. See, e.g. , 15-ORD-190. However, COT is a public agency subject to the Act. KRS 61.870(1). And it is axiomatic that there are records for which COT is the custodian. Here, Appellant requested to inspect "COT-F084 forms" submitted to COT. These are the forms that other public agencies submit to COT to invoke its services. In 19-ORD-091, COT compared itself to a "handyman" who may have access to a separate public agency's digital home, but no right to open that digital home for others. That is an apt comparison. And here, if COT is a handyman, the COT-F084 forms are in the nature of "to-do lists" for the handyman. Without the forms, there is no reason for COT to have access to the agency's electronic files in the first place. According to COT's own policy, it "will log the [COT-F084] request and send it to the COT Chief Information Security Officer, or his designee for final approval." 2Thus, COT is not the custodian of all electronic records in the Commonwealth, but it is the custodian of the forms other public agencies may submit to it to request its services. From the record on appeal, COT did not provide the requested COT-F084 forms, state whether they did or did not exist, or, if they did exist, provide any explanation to justify its withholding of the forms. 3KRS 61.880(1). In this regard, it violated the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 On appeal, Appellant contends that no public agency responded to his request. Although Appellant failed to direct his request to COT's records custodian, the Finance and Administration Cabinet ("Cabinet") processes open records requests for COT, received the request on February 28, 2020, and attempted to provide Appellant the contact information for the records custodian of the agency believed to possess the records. In doing so, the Cabinet discharged its duty under KRS 61.872(4). See also Baker v. Jones , 199 S.W.3d 749, 752 (Ky. App. 2006). Appellant's additional objection, that he did not request a response via e-mail, is unpersuasive in light of his actions. Appellant transmitted his request via e-mail and requested responsive records be transmitted to him via the same e-mail address. He did not request the agency to deliver a written response by U.S. mail as he now claims it should have done, but the record on appeal confirms that the Cabinet responded via e-mail within three business days of its receipt of the request on March 3, 2020. KRS 61.880(1).

2 CIO-084 E-mail Review Request, Commonwealth Office of Technology, available at https://technology.ky.gov/policy/Pages/CIO-084.aspx (last visited April 27, 2020).

3 This Office makes no finding as to whether COT-F084 forms are exempt from inspection under KRS 61.878(1) because COT did not invoke a statutory basis for denying access to such forms and the question is therefore not ripe for review.



 

20-ORD-065

LLM Generated Data

Appellant: James Harrison

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The agency, KSP, was found to have violated the Open Records Act by failing to respond to the request within the required three business days. However, KSP was found to have properly denied the request for the remaining investigative records in dispute under the exemptions provided by KRS 17.150(2) and KRS 61.878(1)(l) due to the ongoing nature of the investigation and the potential harm that premature release could cause. The decision allows for the release of a redacted copy of the KYIBRS report regardless of the status of the investigation.

Cited Opinions

  • 09-ORD-205: O

    The decision is cited to support the release of a redacted copy of the Kentucky Incident Based Reporting System (KYIBRS) Report regardless of the status of the investigation. It also explains the exemptions under KRS 17.150(2) and KRS 61.878(1)(h) for law enforcement records from disclosure until prosecution is declined or completed.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On March 10, 2020, James Harrison ("Appellant") requested to inspect "any documentation associated with the seizure and custodian [sic] records relating to approximately one thousand three hundred and thirty-seven ($ 1,337) confiscated from [a certain individual] on or about January 25, 2019 by [KSP] Officer J. Neace[.]" Having received no response, Appellant initiated this appeal on March 25, 2020. On appeal, KSP advised that its records custodian mailed a response to Appellant on March 25, 2020, along with a redacted copy of the responsive Kentucky Incident Based Reporting System ("KYIBRS") Report. In that response, KSP advised: 

[These records are] part of an investigation that is still open, and prosecution has not been declined; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which exempt law enforcement records from disclosure until such time as prosecution is declined or completed. Premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events. However, a copy of the KYIBRS report, before the narrative portion begins . . . is subject to disclosure regardless of the status of the investigation pursuant to [09-ORD-205]. Therefore, a copy of that report is enclosed.

 

On appeal, KSP also stated that release of the remaining investigative records in dispute would "harm the investigation by tipping off potential witnesses or defendants that may be unaware they are a subject of the investigation by revealing information that may influence their statements or testimony. Further, public disclosure could also result in bias to a potential jury pool." However, KSP did not offer any explanation for the apparent delay in processing Appellant's March 10 request; nor did KSP deny receiving the request prior to this appeal. 

Under KRS 61.880(1), a public agency "shall determine within three (3) [business] days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." KRS 61.880(2)(c) places the burden of proof on the public agency to sustain its action. Here, KSP has not claimed that it received the request late nor has it provided any explanation or proof as to why it did not issue a response until eleven business days later on March 25. Accordingly, KSP failed to carry its burden of establishing that it timely responded under KRS 61.880(1) and therefore violated the Act. 

Nevertheless, KSP properly denied the request. Public records of a law enforcement agency's investigation of criminal acts are exempt from disclosure if their release would harm the agency's enforcement action. KRS 61.878(1)(h). However, those same records "shall be open after enforcement action is completed or a decision is made to take no action." Id . Similarly, "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." KRS 17.150(2)(emphasis added). KRS 61.878(1)(l) exempts from public inspection records made confidential by an enactment of the General Assembly. Through KRS 17.150(2), the General Assembly has rendered certain records confidential and exempt prior to prosecution under specified circumstances. Here, KSP specifically explained the potential for prosecution still exists and that premature release of these records may be detrimental because it could permit the subjects of KSP's investigation to coordinate testimony. As such, KSP properly withheld the records under KRS 17.150(2) and KRS 61.878(1)(l). 

Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-062

LLM Generated Data

Appellant: Gerry L. Calvert

Agency: Commonwealth Office of Technology

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Commonwealth Office of Technology violated the Open Records Act by not providing the requested COT-F084 forms, failing to state whether they existed, or provide any explanation for withholding the forms. The agency's response was deficient and in violation of the Act. The decision does not make a finding on whether the COT-F084 forms are exempt from inspection under KRS 61.878(1) due to the lack of statutory basis for denying access to such forms.

Cited Opinions

  • 19-ORD-091: O

    This decision exhaustively analyzed the Commonwealth Office of Technology's responsibilities and role regarding electronic records, establishing that COT is not the custodian of all electronic records in the Commonwealth, but is the custodian of forms other public agencies may submit to it to request its services.

  • 20-ORD-009: O

    This decision is cited to illustrate that although a public agency may have access to a particular record, it does not necessarily make that agency the custodian of the record.

  • 15-ORD-190: O

    This decision is referenced to show that even though a public agency may have access to certain records, the custodianship and control of those records may lie with another entity.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On February 27, 2020, Gerry L. Calvert ("Appellant") requested a copy of the following public records: 

1) Any e-mail sent or received, from September 20, 2019, through February 26, 2020 by 14 named state employees; 

2) Any COT-F084 forms submitted to COT by any employee or agent of the Kentucky Department of Criminal Justice Training ("DOCJT"); and 

3) Any word processing document created, edited, or deleted on any computer or other electronic device issued to DOCJT employee Joey Barnes (Joey.Barnes@ky.gov), from September 20, 2019, through January 28, 2020.

On March 26, 2020, Appellant initiated this appeal alleging that COT had not provided any response as of that date. 1

Under the Act, each public agency must designate an official custodian of records and identify the "title and address of the official custodian of the public agency's records." KRS 61.876(1)(b). On appeal, COT argues that it "is not the Official Custodian of all agency client records" within the meaning of KRS 61.870(5). COT asserted that "[n]ot only would COT abuse its authority by disclosing client data without permission, but it [is] not well-equipped in a practical sense to make determinations about agency-specific laws prohibiting disclosure of certain data[.]" This Office agrees. 

COT is not an officer or employee of DOCJT, the state agency to which Appellant should have directed his first and third requests. That is because COT is not "responsible for the maintenance" of DOCJT's records, and it does not maintain "personal custody and control" of DOCJT's records. See KRS 61.870(5); KRS 61.870(6). KRS 42.726 identifies the roles, duties, and permissible activities for COT. In short, COT provides "technical support and services to all executive agencies of state government in the application of information technology." KRS 42.726(2)(a). Therefore, COT can provide technical support for agencies in fulfilling open records requests, but COT is not the custodian to which a requester should make a request for public records merely because the requester seeks electronic records. In 19-ORD-091, this Office exhaustively analyzed COT's responsibilities and role regarding electronic records. The analysis contained therein applies equally in this appeal for Appellant's first and third requests. 

Quite simply, the fact that a public agency may have access to a particular record does not make that agency the custodian of the record. For example, the Kentucky Department for Libraries and Archives possesses court records for the purpose of providing archival services to Kentucky courts, but the Kentucky Supreme Court retains control of those records. See, e.g. , 20-ORD-009. And the Kentucky Department of Education has access to the e-mails of local school districts, but the local districts maintain the custody and control of those e-mails. See, e.g. , 15-ORD-190. However, COT is a public agency subject to the Act. KRS 61.870(1). And it is axiomatic that there are records for which COT is the custodian. Here, Appellant requested to inspect "COT-F084 forms" submitted to COT. These are the forms that other public agencies submit to COT to invoke its services. In 19-ORD-091, COT compared itself to a "handyman" who may have access to a separate public agency's digital home, but no right to open that digital home for others. That is an apt comparison. And here, if COT is a handyman, the COT-F084 forms are in the nature of "to-do lists" for the handyman. Without the forms, there is no reason for COT to have access to the agency's electronic files in the first place. According to COT's own policy, it "will log the [COT-F084] request and send it to the COT Chief Information Security Officer, or his designee for final approval." 2Thus, COT is not the custodian of all electronic records in the Commonwealth, but it is the custodian of the forms other public agencies may submit to it to request its services. From the record on appeal, COT did not provide the requested COT-F084 forms, state whether they did or did not exist, or, if they did exist, provide any explanation to justify its withholding of the forms. 3KRS 61.880(1). In this regard, it violated the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 On appeal, Appellant contends that no public agency responded to his request. Although Appellant failed to direct his request to COT's records custodian, the Finance and Administration Cabinet ("Cabinet") processes open records requests for COT, received the request on February 28, 2020, and attempted to provide Appellant the contact information for the records custodian of the agency believed to possess the records. In doing so, the Cabinet discharged its duty under KRS 61.872(4). See also Baker v. Jones , 199 S.W.3d 749, 752 (Ky. App. 2006). Appellant's additional objection, that he did not request a response via e-mail, is unpersuasive in light of his actions. Appellant transmitted his request via e-mail and requested responsive records be transmitted to him via the same e-mail address. He did not request the agency to deliver a written response by U.S. mail as he now claims it should have done, but the record on appeal confirms that the Cabinet responded via e-mail within three business days of its receipt of the request on March 3, 2020. KRS 61.880(1).

2 CIO-084 E-mail Review Request, Commonwealth Office of Technology, available at https://technology.ky.gov/policy/Pages/CIO-084.aspx (last visited April 27, 2020).

3 This Office makes no finding as to whether COT-F084 forms are exempt from inspection under KRS 61.878(1) because COT did not invoke a statutory basis for denying access to such forms and the question is therefore not ripe for review.



 

20-ORD-065

LLM Generated Data

Appellant: James Harrison

Agency: KSP

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The agency, KSP, was found to have violated the Open Records Act by failing to respond to the request within the required three business days. However, KSP was found to have properly denied the request for the remaining investigative records that were still part of an ongoing investigation. The denial was based on exemptions in KRS 17.150(2) and KRS 61.878(1)(h) that allow law enforcement records to be withheld until prosecution is completed or a decision is made to take no action. The agency's delay in responding to the request was a violation of the Act, but the denial of the remaining records was deemed appropriate.

Cited Opinions

  • 09-ORD-205: O

    The decision is cited to support the release of a redacted copy of the Kentucky Incident Based Reporting System (KYIBRS) Report, even when an investigation is still open. It also clarifies that certain records are subject to disclosure regardless of the status of the investigation.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On March 10, 2020, James Harrison ("Appellant") requested to inspect "any documentation associated with the seizure and custodian [sic] records relating to approximately one thousand three hundred and thirty-seven ($ 1,337) confiscated from [a certain individual] on or about January 25, 2019 by [KSP] Officer J. Neace[.]" Having received no response, Appellant initiated this appeal on March 25, 2020. On appeal, KSP advised that its records custodian mailed a response to Appellant on March 25, 2020, along with a redacted copy of the responsive Kentucky Incident Based Reporting System ("KYIBRS") Report. In that response, KSP advised: 

[These records are] part of an investigation that is still open, and prosecution has not been declined; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which exempt law enforcement records from disclosure until such time as prosecution is declined or completed. Premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events. However, a copy of the KYIBRS report, before the narrative portion begins . . . is subject to disclosure regardless of the status of the investigation pursuant to [09-ORD-205]. Therefore, a copy of that report is enclosed.

On appeal, KSP also stated that release of the remaining investigative records in dispute would "harm the investigation by tipping off potential witnesses or defendants that may be unaware they are a subject of the investigation by revealing information that may influence their statements or testimony. Further, public disclosure could also result in bias to a potential jury pool." However, KSP did not offer any explanation for the apparent delay in processing Appellant's March 10 request; nor did KSP deny receiving the request prior to this appeal. 

Under KRS 61.880(1), a public agency "shall determine within three (3) [business] days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." KRS 61.880(2)(c) places the burden of proof on the public agency to sustain its action. Here, KSP has not claimed that it received the request late nor has it provided any explanation or proof as to why it did not issue a response until eleven business days later on March 25. Accordingly, KSP failed to carry its burden of establishing that it timely responded under KRS 61.880(1) and therefore violated the Act. 

Nevertheless, KSP properly denied the request. Public records of a law enforcement agency's investigation of criminal acts are exempt from disclosure if their release would harm the agency's enforcement action. KRS 61.878(1)(h). However, those same records "shall be open after enforcement action is completed or a decision is made to take no action." Id . Similarly, "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." KRS 17.150(2)(emphasis added). KRS 61.878(1)(l) exempts from public inspection records made confidential by an enactment of the General Assembly. Through KRS 17.150(2), the General Assembly has rendered certain records confidential and exempt prior to prosecution under specified circumstances. Here, KSP specifically explained the potential for prosecution still exists and that premature release of these records may be detrimental because it could permit the subjects of KSP's investigation to coordinate testimony. As such, KSP properly withheld the records under KRS 17.150(2) and KRS 61.878(1)(l). 

Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-070

LLM Generated Data

Appellant: Ann Maria Pavlik Rosen

Agency: KYMEA

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KYMEA did not violate the Open Records Act in failing to produce nonexistent records as requested by Ann Maria Pavlik Rosen. The agency was found to have complied by providing a written explanation for the nonexistence of the records. The decision also highlighted that KYMEA failed to meet its statutory obligation to record minimal actions in meeting minutes, but explained why not all requested minutes existed. The appellant established a prima facie showing that KYMEA should have possessed additional responsive records, but the agency's misunderstanding of its obligations under the Open Meetings Act explained the limited records available, leading to the conclusion that KYMEA did not violate the Open Records Act.

Cited Opinions

  • 95-OMD-64: O

    The decision is cited to explain the requirements of the Open Meetings Act in relation to the creation of records for committee meetings.

  • 20-OMD-040: O

    This decision resolved an Open Meetings Complaint and is referenced to provide context for the finding that KYMEA did not violate the Open Records Act by denying the request for nonexistent records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On January 6, 2020, Ann Maria Pavlik Rosen ("Appellant") requested from KYMEA the following records for the period of January 1, 2018, through December 31, 2019: 1

1. Invitations or emails, coordinating conference calls or in person meetings with committee or board members[;] 

2. Public notices, agendas, minutes and notes from conference calls and meetings noted in # 1[;] 

3. Invitations or emails coordinating committee meetings whether conference calls or in person meetings[; and] 

4. Public notices, agendas, minutes and notes from any committee meetings noted in # 3.

More specifically, Appellant stated that she was requesting a "notice, agenda, notes, and minutes from the Executive Committee Meeting that took place on [January 8, 2018] at the Louisville office of Rubin and Hayes." 

First, in its response to the open records request, KYMEA relied on KRS 61.872(6) to partially deny Appellant's request and claimed that complying with her request would be unreasonably burdensome. However, to support its assertion, KYMEA was required to produce clear and convincing evidence that Appellant's request was unreasonably burdensome. KRS 61.872(6). The Kentucky Supreme Court has recognized that a public agency "faces a high proof threshold" when attempting to invoke this exception successfully, and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." 

Commonwealth v. Chestnut , 250 S.W.3d 655, 664-665 (Ky. 2008). Further, 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." Id . Here, KYMEA simply asserted that Appellant's requests were too broad, but did not explain how the requests were too broad or what burdensome measures would be required to produce the requested records. Because KYMEA concluded its response without demonstrating that responding to Items 1 and 2 would be "burdensome," it failed to meet its burden under KRS 61.872(6). 

Second, Appellant alleges that KYMEA failed to produce some records that should exist because of statutory obligations under the Open Meetings Act. On the other hand, a public agency cannot provide a requester access to a record that does not exist. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Here, Appellant has made a prima facie showing that some of the requested records should exist because the Open Meetings Act required KYMEA to create them. However, that is not the end of the analysis. Because the agency misunderstood its obligations under the Open Meetings Act, it does not have records responsive to Appellant's related requests. 

With regard to Appellant's request for notices and agendas, whether these records should have been created depends on whether the specified committee meetings 2were regular meetings or special meetings. For regular meetings, "[a]ll public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency." KRS 61.820. No provision of the Open Meetings Act requires a public agency to publish an agenda for its regular meetings. However, any meeting that is not on the "schedule of regular meetings" is a special meeting and subject to the notice and agenda requirements of KRS 61.823. That provision requires the public agency to deliver, at least twenty-four (24) hours in advance, written notice that consists of the date, time, and place of the meeting, and the agenda, to members of the public agency and media organizations that have requested notification. The notice and agenda may be "delivered personally, transmitted by facsimile machine, or mailed," or sent via electronic mail under KRS 61.823(4)(b). KRS 61.823(4)(c) requires a public agency to post the written notice and agenda in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. 

Regarding the January 8, 2018, Executive Committee meeting in particular, the record on appeal establishes that counsel for KYMEA notified members of the committee meeting via e-mail, but does not indicate that public notice was provided. It is also unclear from the record whether any of the committees had a "schedule of regular meetings." KYMEA argued on appeal that it would announce the time and location of the next committee meeting during its regular meeting. This indicates there was no actual schedule provided, but each committee meeting was scheduled individually at each regular KYMEA meeting. Although it is required to provide an agenda for special meetings under the Open Meetings Act, the agency has demonstrated that it did not meet its statutory obligation. Thus, no responsive records are available. 

Regarding Appellant's request for committee meeting minutes, KRS 61.835 requires the public agency to record "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings[.]" KRS 61.835 applies to every meeting, including both regular and special meetings. KYMEA provided Appellant some "committee reports" for committee meetings when action was taken. Because KRS 61.835 does not require any certain format in which a public agency must record its actions and votes, the "committee reports" qualify as "minutes" under KRS 61.835. For those minutes KYMEA did not provide, KYMEA argued that many of its committee meetings were "informational" and no action was taken. However, it is official action to call a meeting to order and adjourn the meeting. If nothing else, a public agency must record those minimal actions in minutes. See, e.g. , 95-OMD-64. KYMEA did not meet its statutory obligation to record these minimal actions in meeting minutes. Nevertheless, it has explained why not all the requested minutes exist. 

On appeal, Appellant established a prima facie showing that KYMEA should have possessed additional responsive records, but KYMEA argued on appeal that provisions of the Open Meeting Act did not apply to its committee meetings. Although KYMEA's assertion is not correct, its error explains why KYMEA did not create the records and therefore had limited records responsive to Appellant's request under the Open Records Act. For this reason, KYMEA complied because it provided a written explanation that it did not create the records Appellant sought. See 

Eplion v. Burchett , 354 S.W.3d 598, 603 (Ky. App. 2011) (finding that when it is clear records do not exist the requester is entitled to a written explanation for their nonexistence.). Thus, KYMEA did not violate the Open Records Act in failing to produce nonexistent records. 

Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant also filed an Open Meetings Complaint alleging other violations. This Office resolved that appeal in 20-OMD-040. Although this appeal implicates provisions of the Open Meetings Act, this Office's discussion of the Open Meetings Act is to provide context for its finding that KYMEA did not violate the Open Records Act by denying the request for nonexistent records.

2 KYMEA's committees are subject to all provisions of the Act to the same extent as KYMEA. KRS 61.805(1)(g) (defining "public agency" to include any "committee, subcommittee, ad hoc committee, advisory committee . . . established, created, and controlled by a 'public agency'").



 

20-ORD-070

LLM Generated Data

Appellant: Ann Maria Pavlik Rosen

Agency: KYMEA

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

KYMEA partially violated the Open Records Act by failing to meet its burden under KRS 61.872(6) in demonstrating that the request was unreasonably burdensome. Additionally, KYMEA did not have records responsive to some of the requests due to misunderstanding its obligations under the Open Meetings Act. However, KYMEA did not violate the Open Records Act in failing to produce nonexistent records. The decision provides a detailed analysis of the requirements for creating and providing records for committee meetings. The appellant established a prima facie showing that KYMEA should have possessed additional responsive records, but KYMEA's error in understanding the application of the Open Meetings Act explained the limited records provided.

Cited Opinions

  • 95-OMD-64: O

    The decision is cited to explain the requirements of the Open Meetings Act in relation to the creation of records for committee meetings.

  • 20-OMD-040: O

    This decision resolved an Open Meetings Complaint and is referenced to provide context for the finding that KYMEA did not violate the Open Records Act by denying the request for nonexistent records.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

On January 6, 2020, Ann Maria Pavlik Rosen ("Appellant") requested from KYMEA the following records for the period of January 1, 2018, through December 31, 2019: 1 

1. Invitations or emails, coordinating conference calls or in person meetings with committee or board members[;] 

2. Public notices, agendas, minutes and notes from conference calls and meetings noted in # 1[;] 

3. Invitations or emails coordinating committee meetings whether conference calls or in person meetings[; and] 

4. Public notices, agendas, minutes and notes from any committee meetings noted in # 3.

 

More specifically, Appellant stated that she was requesting a "notice, agenda, notes, and minutes from the Executive Committee Meeting that took place on [January 8, 2018] at the Louisville office of Rubin and Hayes." 

First, in its response to the open records request, KYMEA relied on KRS 61.872(6) to partially deny Appellant's request and claimed that complying with her request would be unreasonably burdensome. However, to support its assertion, KYMEA was required to produce clear and convincing evidence that Appellant's request was unreasonably burdensome. KRS 61.872(6). The Kentucky Supreme Court has recognized that a public agency "faces a high proof threshold" when attempting to invoke this exception successfully, and that it cannot rely on "inefficiency in its own internal recordkeeping system to thwart an otherwise proper open records request." 

Commonwealth v. Chestnut , 250 S.W.3d 655, 664-665 (Ky. 2008). Further, 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." Id . Here, KYMEA simply asserted that Appellant's requests were too broad, but did not explain how the requests were too broad or what burdensome measures would be required to produce the requested records. Because KYMEA concluded its response without demonstrating that responding to Items 1 and 2 would be "burdensome," it failed to meet its burden under KRS 61.872(6). 

Second, Appellant alleges that KYMEA failed to produce some records that should exist because of statutory obligations under the Open Meetings Act. On the other hand, a public agency cannot provide a requester access to a record that does not exist. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). Here, Appellant has made a prima facie showing that some of the requested records should exist because the Open Meetings Act required KYMEA to create them. However, that is not the end of the analysis. Because the agency misunderstood its obligations under the Open Meetings Act, it does not have records responsive to Appellant's related requests. 

With regard to Appellant's request for notices and agendas, whether these records should have been created depends on whether the specified committee meetings 2were regular meetings or special meetings. For regular meetings, "[a]ll public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency." KRS 61.820. No provision of the Open Meetings Act requires a public agency to publish an agenda for its regular meetings. However, any meeting that is not on the "schedule of regular meetings" is a special meeting and subject to the notice and agenda requirements of KRS 61.823. That provision requires the public agency to deliver, at least twenty-four (24) hours in advance, written notice that consists of the date, time, and place of the meeting, and the agenda, to members of the public agency and media organizations that have requested notification. The notice and agenda may be "delivered personally, transmitted by facsimile machine, or mailed," or sent via electronic mail under KRS 61.823(4)(b). KRS 61.823(4)(c) requires a public agency to post the written notice and agenda in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. 

Regarding the January 8, 2018, Executive Committee meeting in particular, the record on appeal establishes that counsel for KYMEA notified members of the committee meeting via e-mail, but does not indicate that public notice was provided. It is also unclear from the record whether any of the committees had a "schedule of regular meetings." KYMEA argued on appeal that it would announce the time and location of the next committee meeting during its regular meeting. This indicates there was no actual schedule provided, but each committee meeting was scheduled individually at each regular KYMEA meeting. Although it is required to provide an agenda for special meetings under the Open Meetings Act, the agency has demonstrated that it did not meet its statutory obligation. Thus, no responsive records are available. 

Regarding Appellant's request for committee meeting minutes, KRS 61.835 requires the public agency to record "[t]he minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings[.]" KRS 61.835 applies to every meeting, including both regular and special meetings. KYMEA provided Appellant some "committee reports" for committee meetings when action was taken. Because KRS 61.835 does not require any certain format in which a public agency must record its actions and votes, the "committee reports" qualify as "minutes" under KRS 61.835. For those minutes KYMEA did not provide, KYMEA argued that many of its committee meetings were "informational" and no action was taken. However, it is official action to call a meeting to order and adjourn the meeting. If nothing else, a public agency must record those minimal actions in minutes. See, e.g. , 95-OMD-64. KYMEA did not meet its statutory obligation to record these minimal actions in meeting minutes. Nevertheless, it has explained why not all the requested minutes exist. 

On appeal, Appellant established a prima facie showing that KYMEA should have possessed additional responsive records, but KYMEA argued on appeal that provisions of the Open Meeting Act did not apply to its committee meetings. Although KYMEA's assertion is not correct, its error explains why KYMEA did not create the records and therefore had limited records responsive to Appellant's request under the Open Records Act. For this reason, KYMEA complied because it provided a written explanation that it did not create the records Appellant sought. See 

Eplion v. Burchett , 354 S.W.3d 598, 603 (Ky. App. 2011) (finding that when it is clear records do not exist the requester is entitled to a written explanation for their nonexistence.). Thus, KYMEA did not violate the Open Records Act in failing to produce nonexistent records. 

Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 Appellant also filed an Open Meetings Complaint alleging other violations. This Office resolved that appeal in 20-OMD-040. Although this appeal implicates provisions of the Open Meetings Act, this Office's discussion of the Open Meetings Act is to provide context for its finding that KYMEA did not violate the Open Records Act by denying the request for nonexistent records.

2 KYMEA's committees are subject to all provisions of the Act to the same extent as KYMEA. KRS 61.805(1)(g) (defining "public agency" to include any "committee, subcommittee, ad hoc committee, advisory committee . . . established, created, and controlled by a 'public agency'").



 

20-OMD-072

LLM Generated Data

Appellant: Sherri Springate

Agency: Board Chair Debby Edelen

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Board violated the Open Meetings Act in certain instances, such as discussing public business during closed sessions and adding agenda items late. However, the decision also found that some of the allegations did not constitute violations of the Act. The decision provides detailed legal analysis for each allegation. The decision did not directly follow, modify, withdraw, reverse, or cite the case 00-OMD-169.

Cited Opinions

  • 00-OMD-169: N

    The decision addresses multiple allegations of violations of the Open Meetings Act by the Board, including discussions during closed sessions, allowing a teacher to address the Board before a meeting, and adding agenda items to meetings. The decision provides legal analysis and conclusions for each specific allegation.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Meetings Decision 

By letter dated March 10, 2020, Sherri Springate ("Appellant") submitted a written complaint to Board Chair Debby Edelen 1pursuant to KRS 61.846(1), making 14 separate allegations that the Board had violated the Act and proposing remedies for each alleged violation. For the reasons that follow, the Board violated the Act. 

This appeal is unusual because Appellant herself is a member of the Board. First, this Office must dispose of several of Appellant's allegations over which it has no jurisdiction. Under KRS 61.846, this Office can only review the Appellant's complaint and the Board's response and issue a decision as to whether the Board violated the provisions of KRS 61.805 to KRS 61.850. Appellant's allegations numbered as 4, 6, 11, and 12, however, object to the Board chair's taking various types of unilateral action. But the Act does not govern the authority of a school board chair. Allegations 7 and 8 object to actions taken by the full Board during an open meeting, but the Act does not govern the legal authority or policy decisions of school boards or this Board's specific authority to take the actions Appellant would challenge. The Act only requires policy discussions and agency action to occur in open meetings that are accessible to the public. Therefore, allegations 4, 6, 7, 8, 11 and 12 do not assert cognizable violations of the Act over which this Office has jurisdiction. 2

We turn now to the remaining allegations that arise under the Open Meetings Act and resolve each of them in turn. 

Allegation 1

Appellant alleges that during an open meeting on April 22, 2019, the Board "named members to a steering committee" for the design of a new high school, including the Superintendent. Following the open session, the Board entered a closed session to discuss the Superintendent's performance evaluation. Appellant alleges that during the closed session, "several board members expressed their displeasure with [the Superintendent] being named to the steering committee." 3

Under KRS 61.810(1), "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" Once a quorum of an agency discusses "public business," the obligations of the Act attach unless an exception applies. See 

Yeoman v. Com., Health Policy Bd. , 983 S.W.2d 459, 474 (Ky. 1998). 

Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by [KRS 61.805(3)] as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body."

Id

A quorum of the Board could not discuss public business unless an exception to the Act applied. KRS 61.810(1)(k) exempts "[m]eetings which federal or state law specifically require to be conducted in privacy." And KRS 156.557(6)(c) provides "[a]ny preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session." Therefore, the Board could discuss the Superintendent's evaluation in closed session. 

However, KRS 61.815(1)(d) prohibits discussion of any matter other than the matters publicly announced prior to entering closed session. See 

Floyd County Bd. of Education v. Ratliff , 955 S.W.2d 921, 924 (Ky. 1997). Discussions regarding the Superintendent's placement on a steering committee are "public business," because his inclusion or exclusion on that committee are "various alternatives to a given issue." But determining whether to place the Superintendent on a steering committee to build a high school is not connected to his employment evaluation. 

On appeal, the Board asserted that the only comment on the subject was made by one member "directly" to the Vice-Chair in the hallway before a quorum was assembled in the room where the closed session was to take place. Appellant, meanwhile, claimed to have heard two members make statements to the Vice-Chair. This factual discrepancy makes no difference. As a member of the Board, in whose presence the remark was made, Appellant supplied the necessary third member to constitute a quorum. In the presence of a quorum, a member of the Board discussed public business that did not relate to the purpose provided for excluding the public. As such, the Board violated the Act. 

Allegation 2

Appellant alleges that a high school teacher was permitted to address the Board "[t]en or fifteen minutes" before the start of a planning meeting on May 15, 2019, and that the meeting started late because of the teacher's comments. She further alleges that public comment was not on the agenda for that meeting, arguing that the Board had "conducted an unannounced meeting" by allowing the teacher to address the members. However, unlike the conversation in Appellant's first allegation, here there is no allegation that the Board members discussed public business amongst themselves. 

The Board admitted the teacher addressed the Board, but argued that it did not violate the Act because the members of the Board neither discussed public business nor took any action, but merely listened silently to the teacher's presentation prior to the scheduled meeting. This type of passive attentiveness, where board members listen to a speaker, but do not discuss public business themselves, is what the Kentucky Supreme Court approved of in Yeoman . 983 S.W.2d at 474. Since the record on appeal does not establish that members of the Board discussed or took action on the matters addressed by the teacher on May 15, 2019, the Board did not violate the Act by passively listening to her presentation prior to the scheduled meeting. 

Allegation 3

Appellant alleges that at a special meeting on July 24, 2019, the Board voted to authorize the Chair "to solicit potential attorneys to advise him in matters related to the superintendent," a subject which was not on the special meeting agenda. In its response, the Board stated that the members had conducted no such vote, but merely discussed "whether this subject of interviewing potential attorneys should be placed on the agenda" for a special meeting on August 6, 2019. The Board noted that the minutes of the July 24 meeting reflected no vote as described by Appellant. 4

KRS 61.823(3) limits the topics for discussion at a special meeting to those appearing on the agenda for the special meeting. However, the provisions of the Act only apply to meetings where public business is discussed. KRS 61.810(1); s ee also Yeoman , 983 S.W.2d at 474. A discussion about whether to place an item on the agenda is a scheduling discussion, not a discussion of "various alternatives to a given issue." See Yeoman , 983 S.W.2d at 474. The Board could discuss which topics appear on the next agenda, without substantively discussing the topics themselves, at any time. The fact that this scheduling discussion occurred during a special meeting does not mean the Board violated KRS 61.823(3). 

Allegation 5

Appellant alleges that between August 12 and November 30, 2019, various Board members conducted 44 conversations with an independent Board counsel 5to which she was not privy. She claims that the Board "held individual or two person meetings with the attorney to exclude [Appellant] from conversations with [him]." 6

To constitute a violation, a series of less-than-quorum meetings must be held "for the purpose" of avoiding the obligations of the Act. KRS 61.810(2). In essence, KRS 61.810(2) contains a mens rea requirement. See 

Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman , 2007 WL 3228090 *5 (Ky. App. 2007) (unpublished). Appellant does not allege that any of the discussions between counsel and one or two Board members were on the same topic or occurred "for the purpose" of avoiding the requirements of the Act. She merely alleged that the discussions were held to exclude her personally. On the other hand, the Board argues that these discussions occurred between the Chair, Vice-Chair, and the Board's attorney to advise these officers of potential legal issues that pertained to items on upcoming Board agendas. There being no evidence that these meetings included members other than the Chair and Vice-Chair, and no evidence these members intended to avoid the requirements of the Act, this Office finds the Board did not violate KRS 61.810(2) as alleged. 

Allegation 10

Appellant alleges that on January 21, 2020, the Board went into closed session purportedly to discuss pending litigation, but rather than discussing any pending litigation, the first thirty minutes of that discussion related to the Superintendent. Appellant considers the discussion about the Superintendent to be more in the nature of a discussion exempt under KRS 61.810(1)(f), which permits discussions regarding the appointment, dismissal, or discipline of an employee to be conducted in closed session. 

Under KRS 61.815, a public agency is required to give notice during open session of the reason for entering closed session and cite the specific provision of KRS 61.810 authorizing the closed session. A public agency is not permitted to discuss any matter other than those that were announced in the open session. KRS 61.815(1)(d). Like all exemptions, the pending litigation exemption under KRS 61.810(1)(c) is to be construed narrowly. See KRS 61.871. The pending litigation exemption "covers discussions of strategy, tactics, possible settlement and other matters pertaining to the case." 

Carter v. Smith , 366 S.W.3d 414, 419 (Ky. 2012). The litigation exemption "does not apply 'any time the public agency has its attorney present' or where the possibility of litigation is remote or unsubstantiated." Id . (citation omitted). The Carter Court held that a school board could not use the pending litigation exemption to discuss a superintendent's resignation and consulting contract because the superintendent's ability to sue the board was too remote a possibility. 

Here, the parties dispute what exactly was discussed during the closed session. Appellant, a member of the Board who was present, states that the Board's closed session discussion focused on the Superintendent and statements he made during the course of an ongoing lawsuit, rather than on the pending litigation. Appellant states that the provisions of KRS 61.810(1)(f), the "appointment, dismissal, or discipline" exemption, more accurately describe the nature of the conversation. The Board's attorney (who was not in the room during the closed session), however, argues that the members were discussing the Superintendent's deposition testimony, which is inherently a discussion about pending litigation. 

This Office is unable to resolve such conflicting factual accounts regarding the subject matter of discussion. See, e.g. , 00-OMD-169. But any closed-session discussion on whether to terminate the Superintendent for cause would have required that the Board invoke KRS 61.810(1)(f) prior to entering closed session. In light of the factual dispute, however, this Office is unable to find that the Board violated the Act in this regard. 

Allegation 14

Appellant alleges that on October 25, 2019, a Board member added an item to the agenda, relating to the restriction of funds, for the regular Board meeting on October 28, 2019. She also alleges that a different Board member proposed a similar agenda item at an earlier public meeting, but agreed to table that item until the Board could hold a public forum on the matter. Appellant argues that "[t]he late addition of this agenda item coupled with the lack of discussion in the open meeting clearly indicates outside conversations related to this agenda item had occurred prior to the meeting" because the members who originally requested the agenda item voted in favor of it. 

KRS 61.823 requires public notice of an agenda for a special meeting, but no provision of the Act requires a public agency to adopt an agenda for a regular meeting. If the Act does not require a formal agenda for a regular meeting, adding an item to the agenda late does not violate the Act. Additionally, there is no evidence in the record that supports Appellant's speculation that three Board members substantively discussed the proposed restriction of funds outside of an open meeting. Without additional evidence, this Office cannot find that the Board violated KRS 61.810. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Edelen was the Vice-Chair during the time of Appellant's allegations.

2 Appellant accepted the Board's response relating to Allegations 9 and 13 and has not appealed those issues.

3 Appellant also asserted that the Board chair later removed the Superintendent from the steering committee and that such action was illegal. Again, the Act does not govern the authority of a school board chair.

4 On appeal, Appellant attempted to argue that the meeting minutes violated KRS 61.823(3) because they did not reflect the alleged vote. That argument is not within the scope of this appeal because it was not included in Appellant's original complaint.

5 The record indicates that the Board has two attorneys -- a general counsel and a separately retained law firm providing services for discrete issues.

6 Appellant further alleged that the attorney had "sat in the audience" at Board meetings, and been compensated for it, "without authorization from the full board." But the Act does not regulate agency policy decisions or an agency's ability to contract with or compensate third parties.



 

20-OMD-072

LLM Generated Data

Appellant: Sherri Springate

Agency: Board Chair Debby Edelen

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Board violated the Open Meetings Act by discussing public business during a closed session that was not related to the purpose provided for excluding the public. However, the Board did not violate the Act by passively listening to a teacher's presentation before a meeting, discussing scheduling topics during a special meeting, or holding discussions with an attorney that did not violate the Act. The decision also found that the Board did not violate the Act by adding an agenda item late to a regular meeting without evidence of substantive discussions outside of an open meeting. The decision provides guidance on the interpretation and application of the Open Meetings Act in various scenarios.

Cited Opinions

  • 00-OMD-169: N

    The decision addresses multiple allegations of violations of the Open Meetings Act by the Board, including discussions during closed sessions, allowing a teacher to address the Board before a meeting, and adding agenda items to meetings.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Meetings Decision 

By letter dated March 10, 2020, Sherri Springate ("Appellant") submitted a written complaint to Board Chair Debby Edelen 1pursuant to KRS 61.846(1), making 14 separate allegations that the Board had violated the Act and proposing remedies for each alleged violation. For the reasons that follow, the Board violated the Act. 

This appeal is unusual because Appellant herself is a member of the Board. First, this Office must dispose of several of Appellant's allegations over which it has no jurisdiction. Under KRS 61.846, this Office can only review the Appellant's complaint and the Board's response and issue a decision as to whether the Board violated the provisions of KRS 61.805 to KRS 61.850. Appellant's allegations numbered as 4, 6, 11, and 12, however, object to the Board chair's taking various types of unilateral action. But the Act does not govern the authority of a school board chair. Allegations 7 and 8 object to actions taken by the full Board during an open meeting, but the Act does not govern the legal authority or policy decisions of school boards or this Board's specific authority to take the actions Appellant would challenge. The Act only requires policy discussions and agency action to occur in open meetings that are accessible to the public. Therefore, allegations 4, 6, 7, 8, 11 and 12 do not assert cognizable violations of the Act over which this Office has jurisdiction. 2 

We turn now to the remaining allegations that arise under the Open Meetings Act and resolve each of them in turn. 

Allegation 1

Appellant alleges that during an open meeting on April 22, 2019, the Board "named members to a steering committee" for the design of a new high school, including the Superintendent. Following the open session, the Board entered a closed session to discuss the Superintendent's performance evaluation. Appellant alleges that during the closed session, "several board members expressed their displeasure with [the Superintendent] being named to the steering committee." 3 

Under KRS 61.810(1), "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" Once a quorum of an agency discusses "public business," the obligations of the Act attach unless an exception applies. See 

Yeoman v. Com., Health Policy Bd. , 983 S.W.2d 459, 474 (Ky. 1998). 

Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action. Taking action is defined by [KRS 61.805(3)] as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body."

 

Id

A quorum of the Board could not discuss public business unless an exception to the Act applied. KRS 61.810(1)(k) exempts "[m]eetings which federal or state law specifically require to be conducted in privacy." And KRS 156.557(6)(c) provides "[a]ny preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session." Therefore, the Board could discuss the Superintendent's evaluation in closed session. 

However, KRS 61.815(1)(d) prohibits discussion of any matter other than the matters publicly announced prior to entering closed session. See 

Floyd County Bd. of Education v. Ratliff , 955 S.W.2d 921, 924 (Ky. 1997). Discussions regarding the Superintendent's placement on a steering committee are "public business," because his inclusion or exclusion on that committee are "various alternatives to a given issue." But determining whether to place the Superintendent on a steering committee to build a high school is not connected to his employment evaluation. 

On appeal, the Board asserted that the only comment on the subject was made by one member "directly" to the Vice-Chair in the hallway before a quorum was assembled in the room where the closed session was to take place. Appellant, meanwhile, claimed to have heard two members make statements to the Vice-Chair. This factual discrepancy makes no difference. As a member of the Board, in whose presence the remark was made, Appellant supplied the necessary third member to constitute a quorum. In the presence of a quorum, a member of the Board discussed public business that did not relate to the purpose provided for excluding the public. As such, the Board violated the Act. 

Allegation 2

Appellant alleges that a high school teacher was permitted to address the Board "[t]en or fifteen minutes" before the start of a planning meeting on May 15, 2019, and that the meeting started late because of the teacher's comments. She further alleges that public comment was not on the agenda for that meeting, arguing that the Board had "conducted an unannounced meeting" by allowing the teacher to address the members. However, unlike the conversation in Appellant's first allegation, here there is no allegation that the Board members discussed public business amongst themselves. 

The Board admitted the teacher addressed the Board, but argued that it did not violate the Act because the members of the Board neither discussed public business nor took any action, but merely listened silently to the teacher's presentation prior to the scheduled meeting. This type of passive attentiveness, where board members listen to a speaker, but do not discuss public business themselves, is what the Kentucky Supreme Court approved of in Yeoman . 983 S.W.2d at 474. Since the record on appeal does not establish that members of the Board discussed or took action on the matters addressed by the teacher on May 15, 2019, the Board did not violate the Act by passively listening to her presentation prior to the scheduled meeting. 

Allegation 3

Appellant alleges that at a special meeting on July 24, 2019, the Board voted to authorize the Chair "to solicit potential attorneys to advise him in matters related to the superintendent," a subject which was not on the special meeting agenda. In its response, the Board stated that the members had conducted no such vote, but merely discussed "whether this subject of interviewing potential attorneys should be placed on the agenda" for a special meeting on August 6, 2019. The Board noted that the minutes of the July 24 meeting reflected no vote as described by Appellant. 4 

KRS 61.823(3) limits the topics for discussion at a special meeting to those appearing on the agenda for the special meeting. However, the provisions of the Act only apply to meetings where public business is discussed. KRS 61.810(1); s ee also Yeoman , 983 S.W.2d at 474. A discussion about whether to place an item on the agenda is a scheduling discussion, not a discussion of "various alternatives to a given issue." See Yeoman , 983 S.W.2d at 474. The Board could discuss which topics appear on the next agenda, without substantively discussing the topics themselves, at any time. The fact that this scheduling discussion occurred during a special meeting does not mean the Board violated KRS 61.823(3). 

Allegation 5

Appellant alleges that between August 12 and November 30, 2019, various Board members conducted 44 conversations with an independent Board counsel 5to which she was not privy. She claims that the Board "held individual or two person meetings with the attorney to exclude [Appellant] from conversations with [him]." 6 

To constitute a violation, a series of less-than-quorum meetings must be held "for the purpose" of avoiding the obligations of the Act. KRS 61.810(2). In essence, KRS 61.810(2) contains a mens rea requirement. See 

Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman , 2007 WL 3228090 *5 (Ky. App. 2007) (unpublished). Appellant does not allege that any of the discussions between counsel and one or two Board members were on the same topic or occurred "for the purpose" of avoiding the requirements of the Act. She merely alleged that the discussions were held to exclude her personally. On the other hand, the Board argues that these discussions occurred between the Chair, Vice-Chair, and the Board's attorney to advise these officers of potential legal issues that pertained to items on upcoming Board agendas. There being no evidence that these meetings included members other than the Chair and Vice-Chair, and no evidence these members intended to avoid the requirements of the Act, this Office finds the Board did not violate KRS 61.810(2) as alleged. 

Allegation 10

Appellant alleges that on January 21, 2020, the Board went into closed session purportedly to discuss pending litigation, but rather than discussing any pending litigation, the first thirty minutes of that discussion related to the Superintendent. Appellant considers the discussion about the Superintendent to be more in the nature of a discussion exempt under KRS 61.810(1)(f), which permits discussions regarding the appointment, dismissal, or discipline of an employee to be conducted in closed session. 

Under KRS 61.815, a public agency is required to give notice during open session of the reason for entering closed session and cite the specific provision of KRS 61.810 authorizing the closed session. A public agency is not permitted to discuss any matter other than those that were announced in the open session. KRS 61.815(1)(d). Like all exemptions, the pending litigation exemption under KRS 61.810(1)(c) is to be construed narrowly. See KRS 61.871. The pending litigation exemption "covers discussions of strategy, tactics, possible settlement and other matters pertaining to the case." 

Carter v. Smith , 366 S.W.3d 414, 419 (Ky. 2012). The litigation exemption "does not apply 'any time the public agency has its attorney present' or where the possibility of litigation is remote or unsubstantiated." Id . (citation omitted). The Carter Court held that a school board could not use the pending litigation exemption to discuss a superintendent's resignation and consulting contract because the superintendent's ability to sue the board was too remote a possibility. 

Here, the parties dispute what exactly was discussed during the closed session. Appellant, a member of the Board who was present, states that the Board's closed session discussion focused on the Superintendent and statements he made during the course of an ongoing lawsuit, rather than on the pending litigation. Appellant states that the provisions of KRS 61.810(1)(f), the "appointment, dismissal, or discipline" exemption, more accurately describe the nature of the conversation. The Board's attorney (who was not in the room during the closed session), however, argues that the members were discussing the Superintendent's deposition testimony, which is inherently a discussion about pending litigation. 

This Office is unable to resolve such conflicting factual accounts regarding the subject matter of discussion. See, e.g. , 00-OMD-169. But any closed-session discussion on whether to terminate the Superintendent for cause would have required that the Board invoke KRS 61.810(1)(f) prior to entering closed session. In light of the factual dispute, however, this Office is unable to find that the Board violated the Act in this regard. 

Allegation 14

Appellant alleges that on October 25, 2019, a Board member added an item to the agenda, relating to the restriction of funds, for the regular Board meeting on October 28, 2019. She also alleges that a different Board member proposed a similar agenda item at an earlier public meeting, but agreed to table that item until the Board could hold a public forum on the matter. Appellant argues that "[t]he late addition of this agenda item coupled with the lack of discussion in the open meeting clearly indicates outside conversations related to this agenda item had occurred prior to the meeting" because the members who originally requested the agenda item voted in favor of it. 

KRS 61.823 requires public notice of an agenda for a special meeting, but no provision of the Act requires a public agency to adopt an agenda for a regular meeting. If the Act does not require a formal agenda for a regular meeting, adding an item to the agenda late does not violate the Act. Additionally, there is no evidence in the record that supports Appellant's speculation that three Board members substantively discussed the proposed restriction of funds outside of an open meeting. Without additional evidence, this Office cannot find that the Board violated KRS 61.810. 

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Edelen was the Vice-Chair during the time of Appellant's allegations.

2 Appellant accepted the Board's response relating to Allegations 9 and 13 and has not appealed those issues.

3 Appellant also asserted that the Board chair later removed the Superintendent from the steering committee and that such action was illegal. Again, the Act does not govern the authority of a school board chair.

4 On appeal, Appellant attempted to argue that the meeting minutes violated KRS 61.823(3) because they did not reflect the alleged vote. That argument is not within the scope of this appeal because it was not included in Appellant's original complaint.

5 The record indicates that the Board has two attorneys -- a general counsel and a separately retained law firm providing services for discrete issues.

6 Appellant further alleged that the attorney had "sat in the audience" at Board meetings, and been compensated for it, "without authorization from the full board." But the Act does not regulate agency policy decisions or an agency's ability to contract with or compensate third parties.



 

20-ORD-078

LLM Generated Data

Appellant: Sarah Durand

Agency: Governor's Office

AG: Daniel Cameron

AAG: Marc Manley

Summary

The Governor's Office violated the Open Records Act by failing to respond to the request timely and verify that all requested records were provided. However, the Governor's Office did not violate the Act in redacting employee personnel numbers under KRS 61.878(1)(a) as their disclosure would constitute a clearly unwarranted invasion of personal privacy. The appeal was found not to be moot as the requested documents were not provided in full to the appellant.

Cited Opinions

  • 19-ORD-037: O

    The decision is cited as an example of a case where the agency failed to respond to a request timely and violated the Open Records Act, but did not violate the Act in redacting employee personnel numbers under KRS 61.878(1)(a) because the disclosure would constitute a clearly unwarranted invasion of personal privacy.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On April 13, 2020, Sarah Durand ("Appellant") emailed a request to the Governor's Office seeking, "timesheets and hours worked by the entire Kentucky Governor's Mansion staff between the dates of March 1, 2020 to April 10, 2020 including all full-time, part --time, and special event staff excluding state troopers." Having received no response by April 29, 2020, Appellant initiated this appeal. 

On appeal, the Governor's Office admits that it did not respond to the request timely because a telecommuting employee failed to log the request properly. The Governor's Office states that it contacted Appellant on April 29, 2020, "and informed her it would provide her with responsive records as soon as possible with any necessary redactions for personal information pursuant to KRS 61.878(1)(a)." The Governor's Office states that it forwarded Appellant's request to the Finance and Administration Cabinet ("Finance") to obtain the responsive records, and provided Appellant the records it obtained on April 30, 2020. 

Upon receipt, Appellant informed the Governor's Office it had not provided records covering March 1 through March 9, as requested. The Governor's Office then contacted Finance to obtain the missing records and forwarded them to Appellant. The Governor's Office redacted employee personnel numbers from all of the records it provided. 

The Governor's Office argues that the appeal is moot because it provided all responsive records to Appellant, but Appellant argues that the appeal is not moot because the records included redactions. "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 40 KAR 1:030 § 6. Here, the appeal is not moot because the Governor's Office did not provide all of the "requested" documents to Appellant -- she did not request redacted documents. See, e.g. , 19-ORD-037. 

The Governor's Office admits that it failed to respond to the request timely. Typically, an agency has three days to respond to an open records request under KRS 61.872 and 61.880. But in response to the Covid-19 epidemic, the General Assembly passed Senate Bill 150 ("SB 150"), which became effective upon the Governor's signature on March 30, 2020, pursuant to an emergency clause. Section 1(8)(a) of SB 150 provides that "[n]otwithstanding KRS 61.872 and 61.880, a public agency shall respond to the request to inspect or receive copies of public records within 10 days of its receipt." Here, the Governor's Office failed to respond within the required ten days. Moreover, the Governor's Office failed to verify that Finance had provided records that met the full scope of Appellant's request, which resulted in additional delay. Therefore, the Governor's Office violated the Act. 

However, the Governor's Office did not violate the Act in redacting employee personnel numbers under KRS 61.878(1)(a). "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" are exempt from the Act. KRS 61.878(1)(a). The underlying purpose of the Act is for the public "to be informed as to what their government is doing." 

Zink v. Com., Dept. of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828-29 (Ky. App. 1994). If the agency provides the "names of all adults involved in the requested records[,]" additional personal identification such as "addresses, telephone numbers, social security numbers and driver's license numbers" do little to foster the purpose of the Act and "would constitute a clearly unwarranted invasion of personal privacy[.]" 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 88 (Ky. 2013). Here, the employee personnel numbers are similar to driver's license numbers that the Kentucky New Era Court held were exempt under KRS 61.878(1)(a). The employee personnel numbers will not provide any additional insight into how the Governor is conducting public business, but their disclosure could provide access to the employee's human resources web-portal. That web-portal contains personal employee information that the disclosure of which would clearly invade the employee's personal privacy. Therefore, the Governor's Office did not violate the Act in redacting the employee personnel numbers. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-078

LLM Generated Data

Appellant: Sarah Durand

Agency: Governor's Office

AG: Daniel Cameron

AAG: Marc Manley

Summary

The Governor's Office violated the Open Records Act by failing to respond to the request timely and verify that all requested records were provided. However, the Governor's Office did not violate the Act in redacting employee personnel numbers under the exemption for personal information that would constitute a clearly unwarranted invasion of personal privacy. The appeal was found not to be moot because the requested documents were not provided in full. The decision in 19-ORD-037 is cited as an example of an agency failing to respond to a request timely, similar to the current case.

Cited Opinions

  • 19-ORD-037: O

    The decision is cited as an example of a case where the agency failed to respond to a request timely and violated the Open Records Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On April 13, 2020, Sarah Durand ("Appellant") emailed a request to the Governor's Office seeking, "timesheets and hours worked by the entire Kentucky Governor's Mansion staff between the dates of March 1, 2020 to April 10, 2020 including all full-time, part --time, and special event staff excluding state troopers." Having received no response by April 29, 2020, Appellant initiated this appeal. 

On appeal, the Governor's Office admits that it did not respond to the request timely because a telecommuting employee failed to log the request properly. The Governor's Office states that it contacted Appellant on April 29, 2020, "and informed her it would provide her with responsive records as soon as possible with any necessary redactions for personal information pursuant to KRS 61.878(1)(a)." The Governor's Office states that it forwarded Appellant's request to the Finance and Administration Cabinet ("Finance") to obtain the responsive records, and provided Appellant the records it obtained on April 30, 2020. 

Upon receipt, Appellant informed the Governor's Office it had not provided records covering March 1 through March 9, as requested. The Governor's Office then contacted Finance to obtain the missing records and forwarded them to Appellant. The Governor's Office redacted employee personnel numbers from all of the records it provided. 

The Governor's Office argues that the appeal is moot because it provided all responsive records to Appellant, but Appellant argues that the appeal is not moot because the records included redactions. "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 40 KAR 1:030 § 6. Here, the appeal is not moot because the Governor's Office did not provide all of the "requested" documents to Appellant -- she did not request redacted documents. See, e.g. , 19-ORD-037. 

The Governor's Office admits that it failed to respond to the request timely. Typically, an agency has three days to respond to an open records request under KRS 61.872 and 61.880. But in response to the Covid-19 epidemic, the General Assembly passed Senate Bill 150 ("SB 150"), which became effective upon the Governor's signature on March 30, 2020, pursuant to an emergency clause. Section 1(8)(a) of SB 150 provides that "[n]otwithstanding KRS 61.872 and 61.880, a public agency shall respond to the request to inspect or receive copies of public records within 10 days of its receipt." Here, the Governor's Office failed to respond within the required ten days. Moreover, the Governor's Office failed to verify that Finance had provided records that met the full scope of Appellant's request, which resulted in additional delay. Therefore, the Governor's Office violated the Act. 

However, the Governor's Office did not violate the Act in redacting employee personnel numbers under KRS 61.878(1)(a). "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" are exempt from the Act. KRS 61.878(1)(a). The underlying purpose of the Act is for the public "to be informed as to what their government is doing." 

Zink v. Com., Dept. of Workers' Claims, Labor Cabinet , 902 S.W.2d 825, 828-29 (Ky. App. 1994). If the agency provides the "names of all adults involved in the requested records[,]" additional personal identification such as "addresses, telephone numbers, social security numbers and driver's license numbers" do little to foster the purpose of the Act and "would constitute a clearly unwarranted invasion of personal privacy[.]" 

Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76, 88 (Ky. 2013). Here, the employee personnel numbers are similar to driver's license numbers that the Kentucky New Era Court held were exempt under KRS 61.878(1)(a). The employee personnel numbers will not provide any additional insight into how the Governor is conducting public business, but their disclosure could provide access to the employee's human resources web-portal. That web-portal contains personal employee information that the disclosure of which would clearly invade the employee's personal privacy. Therefore, the Governor's Office did not violate the Act in redacting the employee personnel numbers. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.



 

20-ORD-080

LLM Generated Data

Appellant: James Harrison

Agency: Center

AG: Daniel Cameron

AAG: Marc Manley

Summary

The Center did not violate the Open Records Act by denying James Harrison's request for records relating to an attorney's previous visit to the Center. The denial was based on KRS 197.025(2), which allows correctional facilities to deny requests from inmates if the records do not contain a specific reference to that individual. The decision followed the precedent set in 03-ORD-074, which established that local jails can rely on this statute to deny such requests.

Cited Opinions

  • 03-ORD-074: F

    The decision in this case held that local jails, including the Center, may rely on KRS 197.025(2) to deny an inmate's request for records that do not contain a specific reference to the requesting inmate.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

James Harrison ("Appellant") mailed a request for records to the Center seeking copies of records relating to an attorney's previous visit to the Center. Appellant suggested that the Center's visitation log would contain the requested information. The Center responded and denied the request pursuant to KRS 197.025(2), stating that it located and reviewed responsive records, but the records did not contain a specific reference to Appellant. 1After the Center denied Appellant's request to reconsider, Appellant initiated this appeal. 

Under KRS 197.025(2), a correctional facility "shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." According to the plain text of the statute, an inmate is not entitled to any record that does not contain a specific reference to him. The fact that Appellant requested the records from a local jail, rather than a state penitentiary, is immaterial. See e.g. , 03-ORD-074 (holding that local jails may also rely on KRS 197.025(2) to deny an inmate's request for records that do not contain a specific reference to the requesting inmate.) Appellant is an inmate at Green River Correctional Complex, which is a "facility . . . under the jurisdiction of the department." KRS 197.025(2). On appeal, the Center states that the responsive records are a visitor's log that does not refer to Appellant, and a copy of the driver's license of the visiting attorney. Because neither record specifically refers to Appellant, the Center properly denied the request and did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The Center also asserted another exception in its denial. Because the Center's reliance on KRS 197.025(2) is dispositive, this Office declines to address the Center's alternative reason for denying the records.



 

20-ORD-079

LLM Generated Data

Appellant: James Harrison

Agency: The Complex

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The Complex did not violate the Open Records Act as they provided all identifiable responsive records to the appellant. The appellant's assertion that more records should exist was not adjudicated as the agency claimed to have searched for and provided all responsive records.

Cited Opinions

  • 19-ORD-234: O

    The decision is cited as a precedent where the agency provided all identifiable responsive records, and the appellant's assertion that additional records should exist was not adjudicated.

  • 19-ORD-083: O

    The decision is cited as a precedent where the agency provided all identifiable responsive records, and the appellant's assertion that additional records should exist was not adjudicated.

  • 03-ORD-61: O

    The decision is cited as a precedent where the agency provided all identifiable responsive records, and the appellant's assertion that additional records should exist was not adjudicated.

  • OAG 89-81: O

    The decision is cited as a precedent where the agency provided all identifiable responsive records, and the appellant's assertion that additional records should exist was not adjudicated.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

On April 15, 2020, inmate James Harrison ("Appellant") requested copies of "[a]ll documentation pertaining to having [him] placed in segregation on March 28, 2020, who authorized and/or who[se] name is on this document, the reason given, if any, and all other documents on this date 3/28/2020 or the week prece[d]ing that date, as to how long, protocol, etc. this is to continue pertaining to [him]." 1In response, the Complex provided the detention order and inmate response dated March 28, 2020, and the warden's procedural review dated April 8, 2020. This appeal followed. 

On appeal, Appellant argues that the Complex's response was incomplete because his request was "much broader" than the records he received. 2However, the Complex asserts that it has provided all identifiable responsive records. Appellant is merely asserting, without evidence, that more records should exist. This Office has routinely declined to adjudicate an appellant's assertion that additional records should exist where, as here, the agency has searched for and provided all responsive records and claims there are no additional records. See, e.g. , 19-ORD-234; 19-ORD-083; 03-ORD-61; OAG 89-81. Therefore, this Office cannot conclude that the Complex violated the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Appellant's request for "who authorized and/or who[se] name is on this document" and the reason why he was placed in segregation, are requests for information. KRS 61.872(1) provides that a person has a right to inspect "public records." KRS 61.870(2) broadly defines "public records," but the definition does not include "information." See Dept. of Revenue v. Eifler , 436 S.W.3d 530, 534 (Ky. App. 2013). Regardless, the records the Complex provided contained the information Appellant sought.

2 Appellant also argued that the detention order is evidence of "the perpetration of a fraud and/or a violation of KRS 519.060," which pertains to the crime of tampering with public records. These issues, however, are outside the scope of an open records appeal.



 

20-ORD-080

LLM Generated Data

Appellant: James Harrison

Agency: Center

AG: Daniel Cameron

AAG: Marc Manley

Summary

The Center did not violate the Open Records Act by denying James Harrison's request for records relating to an attorney's previous visit to the Center. The denial was based on KRS 197.025(2), which allows correctional facilities to deny requests from inmates if the records do not contain a specific reference to the inmate. Since the records requested did not specifically refer to James Harrison, the denial was proper and did not violate the Act.

Cited Opinions

  • 03-ORD-074: F

    The decision in this case held that local jails may rely on KRS 197.025(2) to deny an inmate's request for records that do not contain a specific reference to the requesting inmate.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

James Harrison ("Appellant") mailed a request for records to the Center seeking copies of records relating to an attorney's previous visit to the Center. Appellant suggested that the Center's visitation log would contain the requested information. The Center responded and denied the request pursuant to KRS 197.025(2), stating that it located and reviewed responsive records, but the records did not contain a specific reference to Appellant. 1After the Center denied Appellant's request to reconsider, Appellant initiated this appeal. 

Under KRS 197.025(2), a correctional facility "shall not be required to comply with a request for any record from any inmate confined in a jail or any facility or any individual on active supervision under the jurisdiction of the department, unless the request is for a record which contains a specific reference to that individual." According to the plain text of the statute, an inmate is not entitled to any record that does not contain a specific reference to him. The fact that Appellant requested the records from a local jail, rather than a state penitentiary, is immaterial. See e.g. , 03-ORD-074 (holding that local jails may also rely on KRS 197.025(2) to deny an inmate's request for records that do not contain a specific reference to the requesting inmate.) Appellant is an inmate at Green River Correctional Complex, which is a "facility . . . under the jurisdiction of the department." KRS 197.025(2). On appeal, the Center states that the responsive records are a visitor's log that does not refer to Appellant, and a copy of the driver's license of the visiting attorney. Because neither record specifically refers to Appellant, the Center properly denied the request and did not violate the Act. 

A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.

Footnotes 

Footnotes

1 The Center also asserted another exception in its denial. Because the Center's reliance on KRS 197.025(2) is dispositive, this Office declines to address the Center's alternative reason for denying the records.



 

20-ORD-082

LLM Generated Data

Appellant: Inmate Wayne Bodytko

Agency: Community Transitional Services, LLC

AG: Daniel Cameron

AAG: James M. Herrick

Summary

Community Transitional Services, LLC (CTS) was found not to be a public agency subject to the Open Records Act due to its contract being obtained through a public competitive procurement process. Therefore, CTS was not required to comply with the provisions of the Act. The decision in 17-ORD-106 was followed, confirming CTS's status as a private entity not covered by the Act.

Cited Opinions

  • 17-ORD-106: F

    In this decision, it was found that Community Transitional Services, LLC (CTS) was not considered a public agency subject to the Open Records Act because its contract was obtained through a public competitive procurement process. The current decision adopts the analysis in 17-ORD-106, confirming that CTS is not required to comply with the provisions of the Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

Inmate Wayne Bodytko ("Appellant") sent an open records request to Community Transitional Services, LLC ("CTS"), for copies of certain records relating to his time as a resident at the CTS facility. CTS denied Appellant's request on the grounds that it was a private entity not subject to the Act. 

CTS is a private limited liability company operating a halfway house in Louisville, Kentucky, under a contract with the Kentucky Department of Corrections ("DOC"). On appeal, Appellant offers no evidence that CTS is a "public agency" as defined by KRS 61.870(1). 

Under KRS 61.870(1)(h), a private entity may be considered a "public agency," and therefore subject to the Act, if twenty-five percent (25%) of the funds it expends in a fiscal year are derived from state or local funds. "However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a [private entity] is a public agency under this subsection[.]" KRS 61.870(1)(h). 

In 17-ORD-106 (copy attached), this Office found that CTS was not a public agency because its contract was obtained through a public competitive procurement process. Here, CTS affirms that this is still the case, and Appellant offers no proof to the contrary. Since the analysis in 17-ORD-106 is directly on point, this Office adopts that decision as if fully set forth herein. As a private entity not covered by KRS 61.870, CTS was not required to comply with the provisions of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-082

LLM Generated Data

Appellant: Inmate Wayne Bodytko

Agency: Community Transitional Services, LLC

AG: Daniel Cameron

AAG: James M. Herrick

Summary

Community Transitional Services, LLC (CTS) was found not to be a public agency subject to the Open Records Act due to its contract being obtained through a public competitive procurement process. Therefore, CTS was not required to comply with the provisions of the Act. The decision in this case follows the analysis and conclusion of a previous decision, 17-ORD-106.

Cited Opinions

  • 17-ORD-106: F

    The decision in this case found that Community Transitional Services, LLC (CTS) was not considered a public agency subject to the Open Records Act because its contract was obtained through a public competitive procurement process. The current decision adopts the analysis and conclusion of 17-ORD-106, stating that CTS is not required to comply with the provisions of the Act as a private entity.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

Inmate Wayne Bodytko ("Appellant") sent an open records request to Community Transitional Services, LLC ("CTS"), for copies of certain records relating to his time as a resident at the CTS facility. CTS denied Appellant's request on the grounds that it was a private entity not subject to the Act. 

CTS is a private limited liability company operating a halfway house in Louisville, Kentucky, under a contract with the Kentucky Department of Corrections ("DOC"). On appeal, Appellant offers no evidence that CTS is a "public agency" as defined by KRS 61.870(1). 

Under KRS 61.870(1)(h), a private entity may be considered a "public agency," and therefore subject to the Act, if twenty-five percent (25%) of the funds it expends in a fiscal year are derived from state or local funds. "However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a [private entity] is a public agency under this subsection[.]" KRS 61.870(1)(h). 

In 17-ORD-106 (copy attached), this Office found that CTS was not a public agency because its contract was obtained through a public competitive procurement process. Here, CTS affirms that this is still the case, and Appellant offers no proof to the contrary. Since the analysis in 17-ORD-106 is directly on point, this Office adopts that decision as if fully set forth herein. As a private entity not covered by KRS 61.870, CTS was not required to comply with the provisions of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-082

LLM Generated Data

Appellant: Inmate Wayne Bodytko

Agency: Community Transitional Services, LLC

AG: Daniel Cameron

AAG: James M. Herrick

Summary

Community Transitional Services, LLC (CTS) was found not to be a public agency subject to the Open Records Act. Therefore, CTS was not required to comply with the provisions of the Act. The decision in 17-ORD-106, which determined the status of CTS as a private entity, was followed in this case, confirming that CTS is not covered by the Act.

Cited Opinions

  • 17-ORD-106: F

    This decision is cited because it found that Community Transitional Services, LLC (CTS) was not considered a public agency subject to the Open Records Act due to its contract being obtained through a public competitive procurement process.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

Inmate Wayne Bodytko ("Appellant") sent an open records request to Community Transitional Services, LLC ("CTS"), for copies of certain records relating to his time as a resident at the CTS facility. CTS denied Appellant's request on the grounds that it was a private entity not subject to the Act. 

CTS is a private limited liability company operating a halfway house in Louisville, Kentucky, under a contract with the Kentucky Department of Corrections ("DOC"). On appeal, Appellant offers no evidence that CTS is a "public agency" as defined by KRS 61.870(1). 

Under KRS 61.870(1)(h), a private entity may be considered a "public agency," and therefore subject to the Act, if twenty-five percent (25%) of the funds it expends in a fiscal year are derived from state or local funds. "However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a [private entity] is a public agency under this subsection[.]" KRS 61.870(1)(h). 

In 17-ORD-106 (copy attached), this Office found that CTS was not a public agency because its contract was obtained through a public competitive procurement process. Here, CTS affirms that this is still the case, and Appellant offers no proof to the contrary. Since the analysis in 17-ORD-106 is directly on point, this Office adopts that decision as if fully set forth herein. As a private entity not covered by KRS 61.870, CTS was not required to comply with the provisions of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-082

LLM Generated Data

Appellant: Inmate Wayne Bodytko

Agency: Community Transitional Services, LLC

AG: Daniel Cameron

AAG: James M. Herrick

Summary

The agency, Community Transitional Services, LLC, was found not to be a public agency subject to the Open Records Act. Therefore, CTS was not required to comply with the provisions of the Act. The decision followed the analysis and conclusion of a previous decision, 17-ORD-106.

Cited Opinions

  • 17-ORD-106: F

    In this decision, it was found that Community Transitional Services, LLC (CTS) was not considered a public agency subject to the Open Records Act because its contract was obtained through a public competitive procurement process. The current decision adopts the analysis and conclusion of 17-ORD-106, determining that CTS is not required to comply with the provisions of the Act.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;James M. Herrick,Assistant Attorney General 

Open Records Decision 

Inmate Wayne Bodytko ("Appellant") sent an open records request to Community Transitional Services, LLC ("CTS"), for copies of certain records relating to his time as a resident at the CTS facility. CTS denied Appellant's request on the grounds that it was a private entity not subject to the Act. 

CTS is a private limited liability company operating a halfway house in Louisville, Kentucky, under a contract with the Kentucky Department of Corrections ("DOC"). On appeal, Appellant offers no evidence that CTS is a "public agency" as defined by KRS 61.870(1). 

Under KRS 61.870(1)(h), a private entity may be considered a "public agency," and therefore subject to the Act, if twenty-five percent (25%) of the funds it expends in a fiscal year are derived from state or local funds. "However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a [private entity] is a public agency under this subsection[.]" KRS 61.870(1)(h). 

In 17-ORD-106 (copy attached), this Office found that CTS was not a public agency because its contract was obtained through a public competitive procurement process. Here, CTS affirms that this is still the case, and Appellant offers no proof to the contrary. Since the analysis in 17-ORD-106 is directly on point, this Office adopts that decision as if fully set forth herein. As a private entity not covered by KRS 61.870, CTS was not required to comply with the provisions of the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-086

LLM Generated Data

Appellant: Jonathan Curtis

Agency: The Complex

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Complex did not violate the Open Records Act in denying Jonathan Curtis' request for prison-generated documentation designating him as a 'gang member.' The denial was based on the exemption under KRS 61.878(1)(l) and KRS 197.025(1) due to the potential threat to security posed by disclosing such information. The decision indicates that the Office declines to interfere with the Department of Corrections' judgment on security matters.

Cited Opinions

  • 20-ORD-029: O

    The decision is cited to emphasize the requirement for public agencies to explain how the disclosure of requested records would constitute a threat to security.

  • 20-ORD-073: O

    The decision is cited to indicate that the Office declines to substitute its judgment for that of the Department of Corrections regarding security matters.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

Jonathan Curtis ("Appellant") submitted a request to the Complex to inspect and, if also requested, to receive "a copy of any and all prison[-]generated documentation which reflects and/or is being utilized by prison authorities to designate [him] as a 'gang member[.]'" In a timely written response, the Complex denied the request because disclosure of the requested records would constitute a threat to the security of the other inmates and the institutional staff and the records were therefore exempt from disclosure under KRS 61.878(1)(l) and KRS 197.025(1). The Complex further explained that "[t]he Security Threat Group Assessment contains the criteria and factors that are considered when determining if inmates are associated with gangs or other groups." Revealing this information, the Complex stated, "could reveal the areas that are focused on and provide inmates with key factors that could give them advantage [sic] to manipulate the assessment." 

KRS 61.878(1)(l) authorizes public agencies to deny access to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under KRS 197.025(1), "no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 

KRS 197.025(1) grants the Commissioner of the Department of Corrections ("DOC") broad discretion to determine which records constitute a security threat to inmates, correctional staff, and correctional institutions if publicly disclosed. Nevertheless, the Act requires any response by a public agency denying a request for inspection of public records to include "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1); see 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996) (explaining that a "limited and perfunctory response" does not comply with the Act's requirement of a brief explanation). Thus, DOC and correctional institutions under its jurisdiction must explain how disclosure of the records in dispute would constitute a threat to the security of "the inmate, any other inmate, correctional staff, the institution, or any other person." See 20-ORD-029. The Complex did so initially and reaffirmed its position upon receipt of this appeal. This Office declines to substitute its judgment for that of DOC regarding security matters. See 20-ORD-073. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-086

LLM Generated Data

Appellant: Jonathan Curtis

Agency: Complex

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Complex did not violate the Open Records Act in denying Jonathan Curtis' request for prison-generated documentation designating him as a 'gang member.' The decision emphasizes the broad discretion granted to the Commissioner of the Department of Corrections to determine records that could pose a security threat if publicly disclosed. The Office declined to substitute its judgment for that of the DOC regarding security matters.

Cited Opinions

  • 20-ORD-029: O

    The decision is cited to emphasize the requirement for public agencies to explain how the exception applies to the record withheld, specifically in cases where disclosure could constitute a threat to security.

  • 20-ORD-073: O

    The decision is cited to indicate that the Office declines to substitute its judgment for that of the Department of Corrections regarding security matters.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

Jonathan Curtis ("Appellant") submitted a request to the Complex to inspect and, if also requested, to receive "a copy of any and all prison[-]generated documentation which reflects and/or is being utilized by prison authorities to designate [him] as a 'gang member[.]'" In a timely written response, the Complex denied the request because disclosure of the requested records would constitute a threat to the security of the other inmates and the institutional staff and the records were therefore exempt from disclosure under KRS 61.878(1)(l) and KRS 197.025(1). The Complex further explained that "[t]he Security Threat Group Assessment contains the criteria and factors that are considered when determining if inmates are associated with gangs or other groups." Revealing this information, the Complex stated, "could reveal the areas that are focused on and provide inmates with key factors that could give them advantage [sic] to manipulate the assessment." 

KRS 61.878(1)(l) authorizes public agencies to deny access to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under KRS 197.025(1), "no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 

KRS 197.025(1) grants the Commissioner of the Department of Corrections ("DOC") broad discretion to determine which records constitute a security threat to inmates, correctional staff, and correctional institutions if publicly disclosed. Nevertheless, the Act requires any response by a public agency denying a request for inspection of public records to include "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1); see 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996) (explaining that a "limited and perfunctory response" does not comply with the Act's requirement of a brief explanation). Thus, DOC and correctional institutions under its jurisdiction must explain how disclosure of the records in dispute would constitute a threat to the security of "the inmate, any other inmate, correctional staff, the institution, or any other person." See 20-ORD-029. The Complex did so initially and reaffirmed its position upon receipt of this appeal. This Office declines to substitute its judgment for that of DOC regarding security matters. See 20-ORD-073. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-086

LLM Generated Data

Appellant: Jonathan Curtis

Agency: Complex

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Complex did not violate the Open Records Act by denying the request for prison-generated documentation designating the appellant as a gang member. The decision emphasizes that public agencies must provide a brief explanation of how the exception applies to the record withheld when denying a request. The Attorney General's Office declined to substitute its judgment for that of the Department of Corrections regarding security matters. No violation or subversion of the law was found in this case.

Cited Opinions

  • 20-ORD-029: O

    The decision is cited to emphasize that public agencies, such as correctional institutions, must provide a brief explanation of how the exception applies to the record withheld when denying a request for inspection of public records.

  • 20-ORD-073: O

    The decision is cited to indicate that the Attorney General's Office declined to substitute its judgment for that of the Department of Corrections regarding security matters in a similar case.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

Jonathan Curtis ("Appellant") submitted a request to the Complex to inspect and, if also requested, to receive "a copy of any and all prison[-]generated documentation which reflects and/or is being utilized by prison authorities to designate [him] as a 'gang member[.]'" In a timely written response, the Complex denied the request because disclosure of the requested records would constitute a threat to the security of the other inmates and the institutional staff and the records were therefore exempt from disclosure under KRS 61.878(1)(l) and KRS 197.025(1). The Complex further explained that "[t]he Security Threat Group Assessment contains the criteria and factors that are considered when determining if inmates are associated with gangs or other groups." Revealing this information, the Complex stated, "could reveal the areas that are focused on and provide inmates with key factors that could give them advantage [sic] to manipulate the assessment." 

KRS 61.878(1)(l) authorizes public agencies to deny access to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under KRS 197.025(1), "no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 

KRS 197.025(1) grants the Commissioner of the Department of Corrections ("DOC") broad discretion to determine which records constitute a security threat to inmates, correctional staff, and correctional institutions if publicly disclosed. Nevertheless, the Act requires any response by a public agency denying a request for inspection of public records to include "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1); see 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996) (explaining that a "limited and perfunctory response" does not comply with the Act's requirement of a brief explanation). Thus, DOC and correctional institutions under its jurisdiction must explain how disclosure of the records in dispute would constitute a threat to the security of "the inmate, any other inmate, correctional staff, the institution, or any other person." See 20-ORD-029. The Complex did so initially and reaffirmed its position upon receipt of this appeal. This Office declines to substitute its judgment for that of DOC regarding security matters. See 20-ORD-073. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-086

LLM Generated Data

Appellant: Jonathan Curtis

Agency: Complex

AG: Daniel Cameron

AAG: Michelle D. Harrison

Summary

The Complex denied Jonathan Curtis' request for prison-generated documentation designating him as a gang member, citing concerns about the security of inmates and staff. The decision cites previous cases to highlight that the Department of Corrections has broad discretion to determine which records constitute a security threat and that the Attorney General's office will not substitute its judgment in such matters. Curtis has the option to appeal the decision in circuit court. The decision does not indicate a violation or subversion of the law.

Cited Opinions

  • 20-ORD-029: O

    This decision is cited to emphasize that public agencies, such as correctional institutions under the Department of Corrections, must explain how the disclosure of requested records would constitute a threat to security when denying access to those records.

  • 20-ORD-073: O

    This decision is referenced to indicate that the Attorney General's office declined to substitute its judgment for that of the Department of Corrections regarding security matters in a similar case.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Michelle D. Harrison,Assistant Attorney General 

Open Records Decision 

Jonathan Curtis ("Appellant") submitted a request to the Complex to inspect and, if also requested, to receive "a copy of any and all prison[-]generated documentation which reflects and/or is being utilized by prison authorities to designate [him] as a 'gang member[.]'" In a timely written response, the Complex denied the request because disclosure of the requested records would constitute a threat to the security of the other inmates and the institutional staff and the records were therefore exempt from disclosure under KRS 61.878(1)(l) and KRS 197.025(1). The Complex further explained that "[t]he Security Threat Group Assessment contains the criteria and factors that are considered when determining if inmates are associated with gangs or other groups." Revealing this information, the Complex stated, "could reveal the areas that are focused on and provide inmates with key factors that could give them advantage [sic] to manipulate the assessment." 

KRS 61.878(1)(l) authorizes public agencies to deny access to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under KRS 197.025(1), "no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 

KRS 197.025(1) grants the Commissioner of the Department of Corrections ("DOC") broad discretion to determine which records constitute a security threat to inmates, correctional staff, and correctional institutions if publicly disclosed. Nevertheless, the Act requires any response by a public agency denying a request for inspection of public records to include "a brief explanation of how the exception applies to the record withheld." KRS 61.880(1); see 

Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996) (explaining that a "limited and perfunctory response" does not comply with the Act's requirement of a brief explanation). Thus, DOC and correctional institutions under its jurisdiction must explain how disclosure of the records in dispute would constitute a threat to the security of "the inmate, any other inmate, correctional staff, the institution, or any other person." See 20-ORD-029. The Complex did so initially and reaffirmed its position upon receipt of this appeal. This Office declines to substitute its judgment for that of DOC regarding security matters. See 20-ORD-073. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.



 

20-ORD-096

LLM Generated Data

Appellant: Andrew Mize

Agency: District

AG: Daniel Cameron

AAG: Marc Manley

Summary

The District violated the Open Records Act by failing to affirmatively state that it did not possess the requested records initially. The District clarified on appeal that no additional responsive records exist in its possession, shifting the burden to the appellant to provide evidence that the records exist. The Grayson Police Department also violated the Act by failing to respond to the request within three business days. The decision does not find evidence that the Department responded to the request or relied on any exemption to deny it.

Cited Opinions

  • 19-ORD-009: O

    This decision is cited as an example of the requirement for a public agency to affirmatively state if the requested records do not exist in its possession.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On April 4, 2020, Andrew Mize ("Appellant") submitted a request to the District seeking a copy of the District's investigative file relating to alleged bullying of a student. 1The District timely responded and denied the request, stating it did not "have access to" the investigative file because "the Grayson Police Department helped with that investigation." The District further asserted that the middle school assistant principal assisted with the investigation, "but ultimately [the] Grayson Police Department were the ones that collected any information" for the investigation. Shortly thereafter, Appellant submitted a similar request to the Department, but the Department never responded. Appellant appealed both dispositions and this Office has consolidated them on appeal. 

The District violated the Act by failing to state affirmatively that it did not possess responsive records. KRS 61.880(1) requires an agency to determine within three business days whether it will comply with a request to inspect records. If an agency declines a request, it must state the exception authorizing denial and provide a brief explanation as to how the exception applies. KRS 61.880(1). Alternatively, the agency may respond within three business days that the responsive records are "in active use, in storage, or not otherwise available." KRS 61.872(5). If these conditions are met, the agency may extend the time for producing the records by providing the "earliest date on which the public record will be available for inspection" and providing a brief explanation for the cause of delay. Id

Here, it was unclear from the District's initial response whether it possessed the requested records. By stating it "did not have access" to the requested investigative file, the District failed to explain whether the investigative file was merely in active use, and therefore potentially available at a later date under KRS 61.872(5), or whether it did not exist at all. A public agency is not required to produce records that do not exist. See 

Bowling v. Lexington-Fayette Urban County Government , 172 S.W.3d 333, 341 (Ky. 2005). But if that is indeed the reason for denial, the public agency must affirmatively state the request has been denied because responsive records do not exist. KRS 61.880(1); see also 19-ORD-009. 

On appeal, the District supplemented its original response by claiming that it provided Appellant with copies of all responsive records in its possession and that no other responsive records exist. The District further claimed that if any additional records exist, then those records would be in the possession of the Grayson Police Department. Because the District has now clarified that no additional responsive records exist in its possession, the burden shifts to the Appellant to present prima facie evidence that the requested records do exist in the District's possession. Bowling , 172 S.W.3d at 341. Appellant has put forth prima facie evidence that the requested investigative file may exist somewhere, but that evidence does not support a finding that the records were prepared, owned, possessed, used, or retained by the District. See KRS 61.870(2) (defining "public record"). 

Instead, Appellant has presented prima facie evidence that the investigative file is a public record prepared, owned, possessed, used, or retained by the Grayson Police Department. 2Accordingly, although the District ultimately corrected this error on appeal, the District violated the Act in its initial response by failing to state affirmatively that the requested records did not exist in its possession. 

Turning to the Grayson Police Department, Appellant claims that the Department failed to respond to his request at all. KRS 61.880(1) requires every public agency to respond to an open records request within three business days. This Office sent notice of Appellant's appeal to the Department and invited the Department to submit a response. However, the Department failed to do so. Thus, there is no evidence in this record that the Department responded to Appellant's request or relied upon any exemption to deny the request. Therefore, the Department violated the Act. 

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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

Footnotes 

Footnotes

1 Appellant also requested other records that the District provided, subject to redaction. Appellant has not appealed the District's redactions to these records.

2 Appellant asserts that during an administrative hearing, conducted after his request, a Grayson Police Department officer testified that the requested investigative file did exist, but the officer did not bring it with him to the hearing.



 

20-ORD-095

LLM Generated Data

Appellant: WPSD Local 6 News Director Perry Boxx

Agency: Marshall County Fiscal Court

AG: Daniel Cameron

AAG: Marc Manley

Summary

The Marshall County Fiscal Court did not violate the Open Records Act in denying most of the requests made by WPSD Local 6 News Director Perry Boxx, as the agency provided evidence that no responsive records existed for those requests. However, the only records that remain in dispute are communications between Mr. Cary and county officials, which were denied based on exemptions under KRS 61.878(1)(i). The decision found that the agency did not violate the Act in denying access to these communications.

Cited Opinions

  • 20-ORD-044: W

    This decision found that the Office of Judge/Executive violated the Act by failing to affirmatively state that no responsive records existed.

  • 09-ORD-120: O

    This decision declined to resolve factual disputes between appellants and agencies based on social media claims.

  • 18-ORD-117: O

    This decision examined whether a private individual petitioned or advocated for particular action by a public agency on a specific matter in which the agency was empowered to make a decision.

  • 01-ORD-36: O

    This decision found that the Attorney General generally declines to adjudicate a dispute regarding a disparity between records for which inspection has already been permitted and those sought but not provided.

  • 12-ORD-087: O

    This decision is cited for the Attorney General generally declining to adjudicate a dispute regarding a disparity between records for which inspection has already been permitted and those sought but not provided.

  • 14-ORD-204: O

    This decision is cited for the Attorney General generally declining to adjudicate a dispute regarding a disparity between records for which inspection has already been permitted and those sought but not provided.

  • 17-ORD-276: O

    This decision is cited for the Attorney General generally declining to adjudicate a dispute regarding a disparity between records for which inspection has already been permitted and those sought but not provided.

  • OAG 89-81: O

    This decision is cited for the Attorney General generally declining to adjudicate a dispute regarding a disparity between records for which inspection has already been permitted and those sought but not provided.


 

Source Opinion

Opinion 

Opinion By: Daniel Cameron,Attorney General;Marc Manley,Assistant Attorney General 

Open Records Decision 

On March 27, 2020, WPSD Local 6 News Director Perry Boxx ("Appellant") requested a copy of several categories of records related to an individual named Lance Cary. First, he sought all "email[s] and text messages between Marshall County officials and Lance Cary." Second, Appellant requested all emails sent and received using any Marshall County public email address owned by Mr. Cary. Third, Appellant requested a copy "of any email or other document regarding [county officials'] processing of Open Records requests previously submitted by WPSD or our employees" for the period of January 1, 2019, to the present. Fourth, Appellant requested a copy of expense reports and other financial documentation identifying Mr. Cary as a participant in the expenditure of county funds. 

Appellant also requested a copy of records related to other individuals. For the same period, Appellant requested all financial records, including emails, documenting "costs, fees and charges or other financial transactions between Marshall County and Kent Masterson Brown and/or any entity with which he is associated." Finally, Appellant requested a copy of each "expense report submitted by a County elected official wherein the name of Val Finnell, Guns [sic] Owners of America ['GOA'] Pennsylvania Director and/or other representatives of [GOA] appear[ ] as a participant in the expense generated[,]" including receipts, and other documents. 1 

In a timely written response, the Deputy Judge/Executive partially denied the request under KRS 61.878(1)(i) and (j) because "Lance Cary is a private individual and has never been an employee of the Marshall County Fiscal Court in any capacity." 2The Deputy Judge/Executive further stated that Mr. Cary does not have a public email account, "nor has he ever had a public [email] account here. We have searched our servers to confirm this." After searching "all possible locations, both electronic and otherwise," the Judge/Executive's Office also denied possessing any records responsive to Appellant's request for all documents regarding the county officials' processing of Appellant's previous open record requests. The Deputy Judge/Executive stated that office staff "checked all possible files and the request cannot be fulfilled because no such records exist." Likewise, after searching "all possible locations, both electronic and otherwise," for records responsive to Appellant's requests for financial records related to all three of the identified people, the Judge/Executive's Office produced one billing invoice for legal services rendered by Kent Masterson and denied possessing any other responsive financial records. According to the Deputy Judge/Executive, Mr. Cary "has never submitted an invoice to the county. No public monies have been paid to Mr. Cary." 

Thereafter, Appellant initiated this appeal. The parties primarily dispute Mr. Cary's status as a private citizen. 3According to the Appellant, Mr. Cary is associated with the Judge/Executive's campaign for reelection. However, the Deputy Judge/Executive responded as follows: 

Why [Mr. Cary] referred to himself as an "executive assistant" to Judge-Executive Kevin Neal is a question that should be posed to Mr. Lance Cary, as that position literally does not exist. Mr. Cary is not an employee of the county. He has never been an employee of the county. There are no records pertaining to Lance Cary, payroll or otherwise, in the possession of Judge Neal's office, which in any way pertain[ ] to Lance Cary, except for the one email from Val Finnel which mentions his name in passing. That document was produced and disclosed months ago.

 

The Judge/Executive's Office continued to assert both KRS 61.878(1)(i) and (j) "as the exemption[s] pertaining to communications between Judge Neal and [Mr.] Cary, the latter being a 100% private citizen." Regarding all other requests, the Judge Executive's Office co