23-ORD-251
September 19, 2023
In re: Adam Lye/Oldham County Board of Education
Summary: The Oldham County Board of Education (“the Board”) did
not violate the Open Records Act (“the Act”) when it determined a
request posed an unreasonable burden under KRS 61.872(6). The Board
violated the Act when it relied on KRS 61.872(3)(b) to deny a request to
inspect in person the records it reasonably described. However, the
Board did not violate the Act when it denied another request that did
not reasonably describe the records to be inspected.
Open Records Decision
On August 7, 2023, Adam Lye (“Appellant”) submitted a request to the Board
“to review . . . electronic records” for the period between January 1, 2021, and August
7, 2023, pertaining to three subjects. First, the Appellant requested “[e]mails and
other communication records regarding” a lawsuit by a parent against the Board that
was settled in April 2023. Second, he requested “[e]mails and other communication
records regarding ‘Public Comment’ and/or ‘Public Expression’ at [Board] meetings.”
Finally, he requested “[e]mails and other communication records regarding any
person(s), including any lists of persons, whose speech or viewpoint was to be limited
by [the Board] or whom [the Board] threatened to limit access to school property.”
The Board denied the Appellant’s request for communications regarding the
lawsuit under KRS 61.872(6), on the grounds that there were “over 6,500 responsive
documents,” the production of which would impose an unreasonable burden by
requiring “hours of staff and legal counsel time to review” for material that is exempt
under the Act “or other relevant law.” The Board denied the remaining portions of
the request under KRS 61.872(3)(b), claiming the Appellant had not precisely
described the records he wished to review. This appeal followed.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.” On appeal, the Board explains that
before producing the records relating to the lawsuit it must “review each discrete
record for responsiveness [and then] engage in an analysis of any appropriate—or
legally required—redactions or withholdings of these records.” Here, the Appellant
has requested to review over 6,500 emails. A request for large numbers of emails
concerning litigation by a student’s parent foreseeably implicates the mandatory
privacy provisions of the Family Educational Rights and Privacy Act (“FERPA”), 20
U.S.C. § 1232g, and the Kentucky Family Education Rights and Privacy Act
(“KyFERPA”), KRS 160.700, et seq. Review of records for redaction under FERPA
requires “personal knowledge [that] precludes delegation of that function to different
personnel.” 15-ORD-015. In 14-ORD-109, a school system sustained its denial under
KRS 61.872(6) where the request implicated over 6,200 emails subject to mandatory
review and redaction under FERPA and KyFERPA. The facts of this appeal are
indistinguishable from 14-ORD-109. See also 11-ORD-173 (involving over 8,500
emails subject to redaction under FERPA and KyFERPA). In addition, it is likely
many emails may contain privileged communications between attorneys and a client
exchanged in rendering legal services, which would also be exempt from inspection.
See KRE 503; KRS 61.878(1)(l); see also 22-ORD-174 (discussing the attorney-client
privilege). Accordingly, the Board did not violate the Act when it denied the first part
of the Appellant’s request.
The Board also claims the Appellant failed to “precisely describe” the records
he sought in the second and third parts of his request. A person may inspect public
records by receiving copies in the mail “after he or she precisely describes the public
records which are readily available within the public agency” KRS 61.872(3)(b)
(emphasis added). But if, as here, the requester seeks to inspect records in person, he
need only “describ[e] the records to be inspected.” KRS 61.872(2)(a). As such, the
description is sufficient as long as it is “adequate for a reasonable person to ascertain
the nature and scope of [the] request.” Commonwealth v. Chestnut, 250 S.W.3d 655,
661 (Ky. 2008).
The Appellant described the second group of records as “[e]mails and other
communication records regarding ‘Public Comment’ and/or ‘Public Expression’ at
[Board] meetings” between January 1, 2021, and August 7, 2023. By restricting the
scope of his request to “electronic records,” the Appellant has further narrowed the
description of the records to include electronic communications only. Thus, the
Appellant has identified a category and format of documents, with searchable
keywords and the particular subject matter of Board meetings, while limiting the
temporal scope of the request to less than three years. This description is adequate
for a reasonable person to ascertain the nature and scope of the request. See, e.g., 22-ORD-006; 14-ORD-153. Further, the Board admits its technology department has
successfully conducted a search using the terms provided by the Appellant.1
Accordingly, the Board violated the Act when it denied the second part of the
Appellant’s request when he sufficiently described the records to be inspected.2
The Appellant’s third and final request was to inspect “[e]mails and other
communication records regarding any person(s), including any lists of persons, whose
speech or viewpoint was to be limited by [the Board] or whom [the Board] threatened
to limit access to school property.” Although this request is limited to electronic
communications within a specific date range, it provides no search terms, identifies
none of the “persons” to whom it supposedly applies, and specifies no subject matter
other than vague relation to an ill-defined topic. A person requesting inspection must
“describe the records he seeks so as to make locating them reasonably possible.” City
of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 855 (Ky. 2013). Here, the
Board states its “technology department determined that it did not have enough
information from the third request to enable meaningful efforts to identify and collect
potentially responsive records.”
In prior decisions, the Office has found vague descriptions of records
inadequate for a reasonable person to identify the records requested. Cf. 21-ORD-034
(finding “[d]ocuments related to freedom of speech, and usage of signs, when signs
are not deemed political candidate based or advertisement” was not an adequate
description of the records); 21-ORD-017 (finding “all data, records, emails regarding”
COVID-19 testing was not an adequate description); 14-ORD-096 (finding
“[d]etention EOR’s and/or disciplinary reports issued to all inmates as a result of the
injuries [the requesting inmate] substained in [a particular] incident” was not an
adequate description when it did not identify the inmates by name). The Appellant’s
description of “communication records regarding any person(s) . . . whose speech or
viewpoint was to be limited by [the Board] or whom [the Board] threatened to limit
access to school property” was similarly inadequate to define the nature and scope of
his request. Accordingly, the Board did not violate the Act when it denied the third
part of the Appellant’s request.
A party aggrieved by this decision may appeal it by initiating an 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
1
Although the Board claims the search yielded “over 10,000 results,” the fact that the records are
voluminous, standing alone, does not render the Appellant’s description of the records inadequate.
2
The Board has not argued that producing these records would impose an unreasonable burden
under KRS 61.872(6), nor has it asserted a need to redact these records under any statute, such as
FERPA or KyFERPA.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
#372
Distributed to:
Dr. Adam Lye
Eric G. Farris, Esq.
Jason Radford, Superintendent