22-ORD-213
October 13, 2022
In re: Charlotte Flanary/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it failed to respond to portions of a
request for records in accordance with KRS 61.880(1). The University
subverted the intent of the Act, within the meaning of KRS 61.880(4),
when it demanded that a requester narrow the scope of a request that
precisely described the records as required under KRS 61.872(3)(b).
Open Records Decision
On September 7, 2022, Charlotte Flanary (“Appellant”) requested electronic
copies of all e-mails and text messages exchanged between the head coach or associate
head coach of the University’s football program and two private individuals, as well
as “any tweet, quote tweet, or retweet” on the University’s official Twitter account for
the head coach or associate head coach that related to a specific person. The Appellant
stated that the scope of the request included any communications “sent on behalf of
the individuals named.”
The University responded that the “request for ‘all emails,’ is too broad” and
that it was “unclear from [the] request precisely what records” the Appellant sought.
Thus, the University declined to “address” the Appellant’s request for e-mails unless
she provided “a timeframe for which [she] believe[d] such communication took place,
and specific search terms.” The University did not respond to the Appellant’s requests
for text messages or Twitter postings.
The Appellant replied that she did not have to narrow the scope of her request
because she was “requesting specific emails to and from identified individuals.” In
response, the University stated that it had not denied the request, but “asked for aspecific timeframe and subject, so that [it could] conduct the appropriate searches.”
This appeal followed.
When a public agency receives a request to inspect records, that agency must
decide within five business days “whether to comply with the request” and notify the
requester “of its decision.” KRS 61.880(1). A public agency cannot ignore portions of
a request. See, e.g., 21-ORD-090. Here, the Appellant requested e-mails, text
messages, and Twitter postings, but the University only responded to her request for
e-mails. Thus, the University violated the Act when it failed to respond to all portions
of the request.
Moreover, under KRS 61.880(4), a person may invoke this Office’s review to
allege “the intent of [the Act] is being subverted by an agency short of denial of
inspection.” On appeal, the University reiterates that it has not denied the
Appellant’s request for e-mails, but only “asked her to clarify and narrow her request”
before it would respond. However, the University has not explained how the
Appellant’s request is unclear. Under KRS 61.872(3)(b), a public agency must provide
copies of records to a requester who resides or works in a different county “after he or
she precisely describes the public records which are readily available within the
public agency.” Here, the Appellant requested specific types of communications sent
by or on behalf of two specific employees to two other specific private individuals. This
is a sufficiently precise description to identify the requested records.
The University argues the Appellant “did not identify the email addresses of”
the private individuals. But it is not necessary for the Appellant to know or to provide
a person’s e-mail address in order to request e-mails employees have sent to, or
received from, that person. The University further argues that the Appellant did not
“specify a particular period” of time for which she seeks records. This does not make
her request unclear, but merely indicates that she seeks all responsive records during
the employment of the head coach and associate head coach. Finally, the University
argues that the Appellant did not “seek to narrow the subject matter of the records
being requested.” Again, this does not make the request unclear, but indicates that
she seeks all communications between the named persons regardless of subject
matter. Thus, the University has not shown any need for clarification of the
Appellant’s request.
The University asserts that “if [the Appellant] will narrow her request, the
University will respond in a reasonable period.” The Appellant, however, has already
declined to narrow her request. Therefore, it is the University’s duty to respond in a
timely manner to the request as framed. See, e.g., 17-ORD-128; 17-ORD-082; 14-
ORD-044. Depending on the number of responsive records, the University may needmore than the five business days provided under KRS 61.880(1) to provide them.1 See
KRS 61.872(5); see also 14-ORD-044. Alternatively, such a broad request might carry
the risk of implicating so many responsive records that the request could become
unreasonably burdensome under KRS 61.872(6). See, e.g., 22-ORD-176. But the
University did not deny the Appellant’s request on that basis, and her request
nevertheless precisely describes the records sought. The fact that a public agency may
have grounds to deny an unreasonably burdensome request does not mean that the
public agency is excused from “determin[ing] within five (5) [business] days . . .
whether to comply with the request” and “notify[ing] in writing the person making
the request, within the five (5) day period, of its decision.” KRS 61.880(1).
Accordingly, the University subverted the intent of the Act, short of a denial of
inspection, when it demanded that the Appellant narrow her request before the
University would “determine . . . whether to comply” and issue its written decision.
Id.
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/James M. Herrick
James M. Herrick
Assistant Attorney General
#347
Distributed to:
1
However, the public agency has the burden of establishing that a longer time is needed. See, e.g.,
21-ORD-045. According to the applicable records retention schedule, the records in the University’s
possession should encompass no more than two years. See State University Model Records Retention
Schedule, “Correspondence – General,” Series U0101 (“Retain no longer than two (2) years, then
destroy”); “Nonbusiness Related Correspondence,” Series U0122 (“Delete all nonbusiness related e-
mail immediately”), available at https://kdla.ky.gov/records/recretentionschedules/Documents/State
Records Schedules/KYUniversityModel.PDF (last accessed October 4, 2022). But, if the University has
retained more records than required under the retention schedule, it must nevertheless provide them
to the Appellant. See, e.g., 19-ORD-004; 12-ORD-097.Ms. Charlotte Flanary
William E. Thro, Esq.
Ms. Amy Spagnuolo