23-ORD-197
August 1, 2023
In re: Scott Roberts/Trimble County Clerk
Summary: The Trimble County Clerk (“the Clerk”) did not violate the
Open Records Act (“the Act”) when she timely responded to a request to
inspect records stating the requested records did not exist. However,
after those records were created, the Clerk violated the Act when she
denied the request without adequately explaining how the exception on
which she relied applied to the records withheld.
Open Records Decision
On May 22, 2023, Scott Roberts (“Appellant”) submitted a request to the Clerk
to inspect records relating to the May 2023 primary elections.1 On May 26, 2023, the
Clerk stated that the requested electronic signature rolls did not exist because the
vendor had not yet produced them.
On June 27, the Clerk issued a supplemental response and advised the
Appellant that it would not be producing the electronic signature rolls because “it is
a large document which contains personal information of the voter.” Although she
cited KRS 61.878(1)(a) and KRS 61.872(6) as grounds for her denial, she did not
explain how those exceptions applied to records withheld. This appeal followed.
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
1
Specifically, the Appellant 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” and “supplemental rosters . . . if any exist.”person making the request, within the five (5) day period, of its decision.” Here, on
May 26, the fourth business day after receiving the request, the Clerk stated the
requested records do not exist because they had not been created yet. Because the
Clerk informed the Appellant that the records did not exist within five business days
of receiving the request, her first denial did not violate the Act.
After the vendor provided the Clerk with the records, she issued a final
response denying the request. If the agency chooses to deny a request to inspect
records, it “shall include a statement of the specific exception authorizing the
withholding of the record and a brief explanation of how the exception applies to the
record withheld.” Id. An agency response denying a request for records must explain
the denial by “provid[ing] particular and detailed information,” not merely a “limited
and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The
agency’s explanation must be detailed enough to permit [a reviewing] court to assess
its claim and the opposing party to challenge it.” Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013).
In the Clerk’s June 27 supplemental response, she quoted the text of
KRS 61.878(1)(a) and KRS 61.872(6) and stated only that the record “is a large
document which contains personal information of the voter.” The Clerk did not
describe the “personal information” that needed to be withheld, or how “large” the
document was. Accordingly, the Clerk’s limited and perfunctory response violated the
Act.
Regarding the basis of the Clerk’s denial, if a request for records “places an
unreasonable burden in producing public records” on an agency, then “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.” KRS 61.872(6). On appeal, the Clerk explains that the record contains the
addresses and dates of birth of registered voters. She claims the request is
unreasonably burdensome because she would have to “manually redact” this
information “from each of the 7,068 voter entries.”
The Clerk is correct that the personal addresses and dates of birth of the voters
should be redacted under KRS 61.878(1)(a). See Ky. New Era, 415 S.W.3d at 87
(holding phone numbers, addresses, driver’s license numbers may be routinely
redacted under KRS 61.878(1)(a)); see also 22-ORD-206 (agency properly redacted
dates of birth under KRS 61.878(1)(a)). However, the Clerk claims that redacting this
information from about 7,000 entries is unreasonably burdensome.When determining whether a particular request places an unreasonable
burden on an agency, the Office considers the number of records implicated, whether
the records are in a physical or electronic format, and whether the records contain
exempt material requiring redaction. See, e.g., 97-ORD-088 (finding that a request
implicating thousands of physical files pertaining to nursing facilities was
unreasonably burdensome, where the files were maintained in physical form in
several locations throughout the state, and each file was subject to confidentiality
provisions under state and federal law). In addition to these factors, the Office has
found that a public agency may demonstrate an unreasonable burden if it does not
catalogue its records in a manner that will permit it to query keywords mentioned in
the request. See, e.g., 96-ORD-042 (finding that it would place an unreasonable
burden on the agency to manually review thousands of files for the requested keyword
to determine whether such records were responsive).
Neither the number of records at issue nor the fact they must be redacted, in
isolation, is dispositive of whether a request is unreasonably burdensome. But the
combination of these factors, as well as the other factors discussed above, are what
make requests unreasonably burdensome under KRS 61.872(6). Here, the only
burden identified by the Clerk is “several days of [her] time to redact all the exempted
information.” But “the obvious fact that complying with an open records request will
consume both time and manpower is, standing alone, not sufficiently clear and
convincing evidence of an unreasonable burden.” Commonwealth, Dep’t of Ky. State
Police v. Courier Journal, 601 S.W.3d 501, 506 (Ky. App. 2020) (holding that the
Kentucky State Police had not met its burden that redacting personal information
from its entire uniform citation database constituted an unreasonable burden).
Accordingly, the Clerk violated the Act when she denied the request under
KRS 61.872(6) without providing clear and convincing evidence supporting her
denial.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#294
Distributed to:
Scott Roberts
Tina R. Browning
Crystal Heinz