23-ORD-013
January 26, 2023
In re: Lisa Gannoe/Eastern Kentucky University
Summary: Eastern Kentucky University (“the University”) violated
the Open Records Act (“the Act”) when it delayed access to public records
on the basis that its employees, as opposed to the requested records,
were unavailable.
Open Records Decision
On December 9, 2022, Lisa Gannoe (“Appellant”) submitted a request to the
University to inspect a variety of records related to the University’s travel policies.1
On December 14, 2022, the University responded, cited KRS 61.872(5), and notified
the Appellant the records were “not otherwise available” because it “ha[d] several
time sensitive matters that require[d] immediate attention of staff” and it would be
“closed for business from December 16, 2022 through January 2, 2023.” The
University further stated it would respond to the Appellant’s request by January 12,
2023. The Appellant then initiated this appeal on December 22, 2022, claiming the
University’s response violated the Act and its delay was unreasonable.2
1
Specifically, she requested “the travel approval amounts and names of those approved for travel
in the 2022-2023 school year for the College of Education,” the “[p]olicy for revocation of travel after
budget approval,” the budgets and actual amounts paid for the international travel of two specific
University employees, the identities of University employees who were approved for international
travel in the 2022-2023 school year, and the identity of the employee in the College of Education who
“received an email in December 2022 saying that they only had $300.00 of professional development
to use.”
2
The Appellant also sent an “amended” request to the University on December 16, 2022, in which
she essentially rephrased her original request to more precisely describe the travel policies and records
she sought. However, the University’s disposition of the Appellant’s “amended” request is not properly
before the Office because the Appellant initiated her appeal before the University’s deadline to respond
to the amended request had expired. See, e.g., 20-ORD-175 (holding that, because KRS 61.880(2)(a)
requires a person to provide a copy of her request and the agency’s response, or a copy of the request
and an assertion that the agency failed to timely respond, the Office lacks jurisdiction to adjudicateUpon receiving a request to inspect records, a public agency “shall determine
within five (5) days, excepting Saturdays, Sundays, and legal holidays, 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 five (5) day period, of its decision.”
KRS 61.880(1). A public agency may also delay access to responsive records beyond
five business days if such records are “in active use, storage, or not otherwise
available.” KRS 61.872(5). A public agency that invokes KRS 61.872(5) to delay access
to responsive records must also notify the requester of the earliest date on which the
records will be available, and provide a detailed explanation for the cause of the delay.
Here, the University responded to the Appellant’s request within five business
days. For its response, the University cited KRS 61.872(5) and stated it would not
respond further to the Appellant’s request until January 12, 2023, because of “several
time sensitive matters,” including a court ordered deadline to comply in unrelated
litigation, and because the records were “not otherwise available” while the
University was closed for winter break. However, the fact that an agency is
understaffed or busy during a particular time of year does not constitute a proper
basis for delaying production of the requested records. See, e.g., 22-ORD-257; 22-
ORD-134; 22-ORD-133; 19-ORD-188 n.1. While the Office understands employee
absences and other constraints on an agency may make it difficult to produce records
in response to requests under the Act, the agency must nevertheless comply with the
Act in all its particulars. The Act tolls an agency’s duty to “determine . . . whether to
comply with the request” only on “Saturdays, Sundays, and legal holidays.” KRS
61.880(1). Here, the University did not “determine” whether it would comply within
five business days, but rather, stated it would “respond” to the request on or before
January 12, 2023.
While the University may consider itself “closed” during winter break, such
closures are not “legal holidays.” See KRS 2.110 (establishing “holidays, on which all
the public offices of this Commonwealth may be closed”); KRS 18A.190(1) (listing days
on which “[s]tate offices shall be closed and state employees shall be given a holiday”);
see also 01-ORD-94 (finding “spring break” for public schools did not qualify as a
“legal holiday” under the Act).3 Accordingly, the requested records were not
appeals brought before the statutory deadline for the agency to respond). Accordingly, the Office can
only consider the dispute regarding the Appellant’s request submitted on December 9, 2022, and the
agency’s December 14, 2022 response thereto. Now that the University’s deadline to respond to the
December 16, 2022 request has expired (and the University has in fact responded to that request), the
Appellant may initiate a separate appeal of the University’s disposition of her “amended” request by
providing the Office a copy of it and the University’s response. KRS 61.880(2)(a).
3
The public agency carries the burden of proof to sustain its actions. KRS 61.880(2)(c). However,
the University does not cite any statute making breaks in a public university’s academic calendar
“legal holidays.” Instead, the University cites KRS 446.030, which states that if the day on which a
legal act is to be completed falls on “a day on which the public office in which the act is required to be“unavailable” during the University’s winter break, and the University could not rely
on its self-declared break to postpone its disposition of the request.4 The University
therefore violated the Act by improperly relying on employee absences to delay access
to responsive 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 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#487
Distributed to:
Lisa Gannoe
Sarah Watts
Whitney A. Crowe
Dana D. Fohl
completed is actually and legally closed the act may be done on the next day which is none of the days
just mentioned.” Thus, the University must prove it was “actually and legally closed.” Id. (emphasis
added). While the University may have been “actually” closed, it has not carried its burden of proving
it was “legally closed,” i.e., that it was closed pursuant to some legal authority such as a statute,
executive order, or court order to be closed.
4
There is no dispute that the University received the Appellant’s request before it closed for winter
break. There may be instances in which an agency is actually closed, and therefore, does not receive a
request because no employees are present to receive it. The time for an agency to respond to a request
does not begin until after receipt of the request. KRS 61.880(1). But here, the University actually
received the request, and then attempted to extend its time to respond beyond five business days
because it would be closed.