23-ORD-066
March 27, 2023
In re: David McAnally/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the Cabinet”)
did not violate the Open Records Act (“the Act”) when it denied a request
for copies that did not precisely describe the records requested.
Open Records Decision
On February 7, 2023, David McAnally (“Appellant”) requested electronic copies
of “all Cease and Desist orders issued by the Cabinet” or any of its organizational
units since March 30, 2016, “directed at merit and non-merit employees.” The
Appellant explained that his term “Cease and Desist orders” included all “official
actions directing . . . employees to stop engaging in a particular activity (examples,
work place communication, alleged discrimination (EEO, ADA, etc.), sexual
discrimination including superordinates [sic] affairs with subordinates, etc.)” as well
as “official actions . . . alleging wrongdoing [by] employees and threatening legal
action if the offending activity is not stopped.”
In a timely response, the Cabinet stated it could not fulfill the Appellant’s
request “without more definite parameters” because “[t]he Cabinet generates a
significant amount of correspondence annually, and it does not maintain a readily
accessible database to pull all ‘cease and desist orders.’” The Cabinet further asserted
that “[i]t would require an inordinate amount of time to search every single case file
in the Cabinet for ‘any and all’ cease and desist orders over the past (nearly) seven
years.” This appeal followed.
When a person requests copies of public records under the Act, “[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.”
KRS 61.872(3)(b). 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 also 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.3d 43, 48 n.2 (Ky. 2021)
(holding a request was proper when it sought “all records detailing [the] resignation”
of a named employee).
Here, the Appellant has asked for “cease and desist orders” issued to employees
of the Cabinet. However, he does not cite any authority indicating that such “cease
and desist orders” exist.1 Rather, as described by the Appellant, “cease and desist
orders” would encompass all communications of any kind in which an employee was
told not to do something. This is not an identifiable class or type of records, but a
broad and ill-defined subject matter “so nonspecific as to preclude the custodian from
determining what, if any, existing records it might encompass.” 96-ORD-101.
Because a “cease and desist order” is not a generally recognized category of
record created by the Cabinet, it asserts it also cannot find the records electronically
according to the Appellant’s criteria. The Act’s requirement that a request for copies
of records contain a precise description of the records sought, KRS 61.872(3)(b),
applies regardless of whether copies are sought in paper or electronic form because
“the difficulties associated with identifying and locating all responsive documents . .
. are the same when, as in this case, the records are not searchable based on the
criteria provided.” 16-ORD-242. On appeal, the Cabinet states it “would have to
search every single case file in [its] possession from March 30, 2016, to present” in
order to fulfill the Appellant’s request.2 Thus, the Appellant’s request did not
“precisely describe[ ] public records which are readily available within the public
agency,” as required under KRS 61.872(3)(b). Accordingly, the Cabinet did not violate
the Act when it denied the request.
1
For example, while the Kentucky Personnel Board has acknowledged that “written reprimands”
may be an appropriate sanction for employee misconduct, it does not describe a type of record similar
to a “cease and desist order” as a type of disciplinary record that can be placed in an employee’s
personnel file. See, e.g., 101 KAR 1:335; 101 KAR 1:345.
2
As such, this request is different from those at issue in 22-ORD-255 and 23-ORD-006, in which
the requester narrowed the scope of the request to specifically named employees. In 22-ORD-255, the
requester sought all “emails or correspondence” between two people related to a specific topic. In 23-
ORD-006, the request sought all “correspondence” exchanged among 13 named individuals related to
a few topics. But here, the Appellant has not narrowed the scope of his request to specifically identified
individuals, and the Cabinet is, according to its website, “one of the largest agencies in state
government with nearly 8,000 full- and part-time employees.”
See https://www.chfs.ky.gov/Pages/about.aspx (last accessed March 27, 2023).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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#91
Distributed to:
Mr. David McAnally
David T. Lovely, Esq.