23-ORD-010
January 23, 2023
In re: Sean Southard/Office of the Governor
Summary: The Office of the Governor (“the agency”) did not violate the
Open Records Act (“the Act”) when it redacted communications that
were purely personal under KRS 61.878(1)(r). However, the agency
violated the Act when it denied a request for correspondence between or
among 13 named individuals “mentioning or related to” a named
individual, where the requester clarified that he only sought messages
containing a specific search term.
Open Records Decision
On December 8, 2022, Sean Southard (“Appellant”) requested copies of certain
records pertaining to certain named individuals. First, the Appellant requested “[a]ny
and all correspondence, including emails and text messages on personal devices,
between” the Governor and the Lieutenant Governor “related to unemployment
claims or the Office of Unemployment [Insurance] from December 10, 2019 to March
1, 2022.” Second, the Appellant requested the same types of communications between
13 named individuals and the former Executive Director of the Office of
Unemployment Insurance during two specific date ranges. Finally, the Appellant
requested the same types of communications “between or among” the same 13
individuals “related to or mentioning” the former Executive Director between
December 10, 2019, and July 15, 2021.
In a timely response, the agency produced four records, with some redactions.
At issue in this appeal is the agency’s redaction of communications that “discuss
family members and holidays,” which the agency stated were “of a purely personal
nature unrelated to any governmental function” and therefore exempt fromdisclosure under KRS 61.878(1)(r).1 The agency also denied the request for
communications “related to or mentioning” the former Executive Director, because it
claimed the request was insufficiently specific to enable the agency to identify the
requested records. Quoting 19-ORD-084, the agency asserted that “a request for any
and all records which contain a name, a term, or a phrase is not a properly framed
open records request.” This appeal followed.2
KRS 61.878(1)(r) exempts from disclosure “[c]ommunications of a purely
personal nature unrelated to any governmental function.” On appeal, the agency
explains that the content of the reacted communications was “expressing well wishes
over the holidays, sharing photos of each other’s children, and discussions about the
cuteness of those children and discussing teams they support.” Although the
Appellant states that he does “not agree with [the agency’s] analysis,” he does not
explain how the redacted content purportedly relates to any governmental function.
Accordingly, the agency did not violate the Act when it redacted these
communications under KRS 61.878(1)(r).
Regarding the Appellant’s request for communications “mentioning or related
to” the former Executive Director, the agency argues the Appellant’s request does not
precisely describe the records requested. Under KRS 61.872(3)(b), “[t]he public
agency shall mail copies of the public records to a person . . . after he or she 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 may not be
met when a request does not “describe records by type, origin, county, or any identifier
other than relation to a subject.” 20-ORD-017 (quoting 13-ORD-077). In particular,
requests for any and all records “related to a broad and ill-defined topic” generally
fail to precisely describe the records. 22-ORD-182; see, e.g., 21-ORD-034 (finding a
request for any and all records relating to “change of duties,” “freedom of speech,” or
“usage of signs” did not precisely describe the records); but see Univ. of Ky. v. Kernel
Press, Inc., 620 S.W.2d 43, 48 n.2 (Ky. 2021) (holding a request was proper when it
sought “all records detailing [the] resignation” of a specific employee).
Here, the agency claims it cannot determine the scope of the Appellant’s
request because he seeks “any and all records” related to the former Executive
1
The agency also withheld some communications that were unresponsive to the request and
redacted personal identifying information of unemployment insurance applicants under
KRS 341.190(4). The Appellant does not challenge these actions on appeal.
2
On appeal, the agency argues the Attorney General must recuse himself from this appeal because
the Attorney General has filed to run as a candidate in the 2023 gubernatorial election. Although the
Attorney General has recused himself from this decision, the Office must nevertheless carry out its
mandate to adjudicate disputes under the Act. See KRS 61.880(2). Moreover, the Office has previously
rendered decisions pursuant to its mandate under KRS 61.880(2) in similar situations. See, e.g., 19-
ORD-178; 19-ORD-185; 19-ORD-202.Director. But the Appellant did not request “any and all records.” Rather, he
requested “correspondence, including emails and text messages,” of specific
individuals. The ordinary meaning of “correspondence” is “letters or emails
exchanged.” 22-ORD-255. The Appellant’s request also specifically includes text
messages as another form of correspondence. Thus, the Appellant limited his request
by persons, time frame, subject matter, and type of records.
Under the Act, a request must be “adequate for a reasonable person to
ascertain [its] nature and scope.” Commonwealth v. Chestnut, 255 S.W.3d 655, 661
(Ky. 2008). Here, the agency argues it cannot ascertain the nature and scope of the
Appellant’s request because the language “mentioning or related to” is ambiguous,
inasmuch as a record may “mention” or “relate to” the former Executive Director
without using specific language. However, the Appellant has clarified on appeal that
the agency could satisfy his request by searching the electronic messages of the
named individuals for the name of the former Executive Director. Given that the
Appellant has expressly limited his request to electronic messages containing a
specific term, the agency cannot claim it is impossible to determine the scope of the
request.
Under KRS 61.872(6), “[i]f the application places an unreasonable burden in
producing public records[,] the official custodian may refuse to permit inspection of
the public records or mail copies thereof. However, refusal under this section shall be
sustained by clear and convincing evidence.” Here, the agency claims the Appellant’s
request is unreasonably burdensome because it “would require the retrieval and
review of [all] electronic or physical correspondence to or from the identified
individuals over the span of more than three years to determine whether the
correspondence contained the name of the individual.” But the Appellant has clarified
on appeal that he only seeks searchable electronic records that include a specific
search term.
Among the factors this Office considers when determining whether a request
is unreasonably burdensome is whether the requested records are in physical or
electronic format, and whether the files are maintained in a manner capable of
querying requested search terms. See e.g., 22-ORD-182. Usually, electronic records
are less burdensome to search than physical records.3 But here, the agency has not
3
However, not all electronic records are easily searchable. The Appellant also requested to inspect
text messages related to the specified search terms. While the Office has found that text messages on
personally-owned devices are not “public records” within the meaning of KRS 61.870(2), see, e.g., 21-
ORD-127, text messages on state-owned devices are “public records.” As noted in 22-ORD-182, whether
the public records are maintained in a manner capable of being queried by the specified search term
is one factor this Office considers to determine whether a request places an unreasonable burden on
the agency. The agency carries the burden of proving it cannot search the requested public records by
querying the specified search term, because it carries the burden of sustaining a denial under KRS
61.872(6) with clear and convincing evidence. But here, the agency neither claims, nor puts fortharticulated or estimated the number of potential records implicated by the
Appellant’s request. “Although the number of records implicated is not the only factor
the Office considers when determining whether a request is unduly burdensome, it is
the most important factor to be considered.” Id. Moreover, the timeframe of the
request is not “more than three years,” but approximately 19 months. Therefore, the
agency has not established by clear and convincing evidence that the Appellant’s
request is unreasonably burdensome, as required by KRS 61.872(6). Accordingly, the
agency violated the Act when it denied this portion of the Appellant’s request.
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
#484
Distributed to:
Mr. Sean Southard
Taylor Payne, Esq.
Travis Mayo, Esq.
Laura Tipton, Esq.
evidence, that it was incapable of querying text messages on state-issued devices using the specified
search terms. At this stage, the agency has provided no evidence in support of this or any other factor
this Office considers when deciding whether a request is unreasonably burdensome, and therefore, has
failed to meet its burden of proof. KRS 61.872(6); KRS 61.880(2)(c); see also 22-ORD-182 (“An agency
does not carry its burden (that of ‘clear and convincing evidence’) merely by citing the Office’s prior
decisions that found ‘any-and-all’ types of requests were unreasonably burdensome”).