23-ORD-157
June 30, 2023
In re: Laura O’Brien/Union County Clerk
Summary: The Union County Clerk (the “Clerk”) violated the Open
Records Act (“the Act”) when he failed to respond to a request to inspect
records within five business days.
Open Records Decision
On May 24, 2023, Laura O’Brien (“Appellant”) emailed two requests to the
Clerk to inspect various records relating to the May 2023 primary elections.1 The
same day, the Clerk responded and advised the Appellant he was “leaving to go on
vacation after work tomorrow.” He asked the Appellant if she would “be ok” with him
“not officially respond[ing] to this request” until he returned. The Appellant replied,
“If there is no one else who can help provide it, then that is fine.” However, she also
asked the Clerk to “please give [her] a specific date that [she] could expect to have it
by.” Having received no further response by June 2, 2023, the Appellant initiated this
appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [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 five (5) day period, of its decision.”
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023 primary.”After this appeal was initiated, the Clerk responded to the Appellant’s request
on June 5, 2023. He claims his response was timely because he notified the Appellant
he was leaving for vacation and asked her if he could respond upon his return. He
claims the Appellant accepted his request for accommodation. However, the
Appellant’s purported acceptance of the Clerk’s request was conditional: she asked
him to provide “a specific date” on which she could expect a response, which the Clerk
did not provide. Then, when the Clerk did not issue a response within five business
days of receiving the request, she initiated this appeal. Therefore, the record does not
reflect a meeting of the minds as to whether the Appellant granted the Clerk an
extension of time to respond. Moreover, the absence of an agency’s official records
custodian does not alleviate the agency of its duty to determine within five business
days whether it will grant or deny a request. See, e.g., 20-ORD-024; 98-ORD-161; 94-
ORD-86. Accordingly, the Clerk violated the Act when he failed to issue a written
response to the requests within five business days of receiving them.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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/ Marc Manley
Marc Manley
Assistant Attorney General
#233
Distributed to:
Laura O’Brien
Garrick Thompson