23-ORD-313
November 27, 2023
In re: Ben J. Wyatt/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) subverted the intent of
the Open Records Act (“the Act”) when it invoked KRS 61.872(5) but did
not explain why it was necessary to delay access to requested records by
more than a month, and then subsequently failed to make the records
available on the earliest date by which it said the records would be made
available.
Open Records Decision
On April 10, 2023, inmate Ben Wyatt (“Appellant”) submitted a request to KSP
for copies of all records in its possession related to the incident resulting in his arrest.
On April 20, 2023, KSP issued a response indicating it would comply with his request,
but it invoked KRS 61.872(5) because it needed “additional time” to “review the
voluminous investigative file” containing “44 files; [sic] 9 folders” and to “perform the
necessary redactions pursuant to KRS 61.878(1) and (4).”1 KSP stated it
“anticipate[d] being able to complete this review and redaction process on or before
May 23, 2023.” On October 23, 2023, having received no further communication from
KSP, the Appellant initiated this appeal.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request or deny it and explain why.
KRS 61.880(1). A public agency may also delay access to responsive records if they
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
1
It is not clear whether the responsive records included 44 total files stored in 9 different folders,
or if the responsive records included 44 files plus 9 additional folders.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. However, “[i]f a person feels
the intent of [the Act] is being subverted by an agency short of denial of inspection,
including but not limited to . . . delay past the five (5) day period described in
[KRS 61.880(1)] . . . the person may complain in writing to the Attorney General, and
the complaint shall be subject to the same adjudicatory process as if the record had
been denied.” KRS 61.880(4).
When the Office determines how much delay is reasonable, it considers the
number of records, the location of the records, and the content of the records. See e.g.,
21-ORD-045; 01-ORD-140; OAG 92-117. Analyzing these factors is a fact-intensive
endeavor. For example, the Office has found that a four-month delay to provide 5,000
emails for inspection was not reasonable under the facts presented. See, e.g., 21-ORD-
045. The Office has previously found that when a public agency delays access to public
records beyond five business days, without providing the detailed explanation
required under KRS 61.872(5), it subverts the intent of the Act within the meaning
of KRS 61.880(4). See, e.g., 22-ORD-133; 22-ORD-002; 21-ORD-099.
Here, the Appellant submitted a request on April 10, 2023, and KSP received
it on April 13, 2023. As such, KSP’s April 20, 2023, response was timely. However,
KSP invoked KRS 61.872(5) to delay access to the responsive records until May 23,
2023. KSP did not state whether the records were in active use or storage. Rather, it
stated only that it needed additional time to review the “voluminous” records and
redact them, presumably meaning the records were “not otherwise available” until
that process was complete. But KSP did not explain what material it anticipated
needing to redact. While KSP stated the request involved “44 files; [sic] 9 folders,” it
is not clear from KSP’s initial response or the record on appeal how voluminous the
responsive records are. A “file” could be one page or hundreds. Likewise, an audio or
video file could be a few minutes long or several hours. Nor is it readily apparent
what exempt information needed to be separated from the responsive records, other
than perhaps addresses and phone numbers that are routinely redacted under
KRS 61.878(1)(a). See Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89
(Ky. 2013) (allowing the “categorical” redaction of Social Security Numbers,
addresses, phone numbers, and driver’s license numbers from police records under
KRS 61.878(1)(a)). It may be that the content of the responsive records is indeed
voluminous, despite the relatively small number of “files” or “folders,” such that a
one-month delay was reasonable. But KSP carries the burden of sustaining its
actions, KRS 61.880(2)(c), and the lack of detail in its initial response or on appeal
does not demonstrate that its delay was reasonable.Moreover, even if KSP’s initial delay of one month could have been justified,
its actual delay in providing the responsive records was much longer. KSP did not
provide the responsive records until November 6, 2023, more than six months after
they were requested and after this appeal was initiated.2 The Office has found that
a public agency does not comply with KRS 61.872(5) when it notifies the requester of
the earliest date on which requested records would be available and then misses its
self-imposed deadline without explaining why additional delay is necessary. See, e.g.,
23-ORD-079; 21-ORD-011. Accordingly, even if KSP’s delay of one month was
reasonable notwithstanding its deficient explanation, it has certainly failed to explain
why a delay of more than six months was necessary. Accordingly, KSP subverted the
intent of the Act, within the meaning of KRS 61.880(4), when it delayed access to
records beyond the period established under KRS 61.880(1).
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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#480
Distributed to:
2
KSP asked the Office to find the appeal moot under 40 KAR 1:030 § 6 because it had provided the
records. However, KSP also admitted that redactions were made to the records, meaning it did not
provide all responsive records. See, e.g., 20-ORD-078; 12-ORD-046 (providing redacted copies of
requested records does not moot an appeal). The Appellant has not disputed the redactions KSP has
made, and therefore, it is unnecessary to address them here. Regardless, the Appellant initiated this
appeal alleging KSP’s delay violated the Act, which the Office construes as a claim of subversion under
KRS 61.880(4). As such, the appeal is not moot.Ben J. Wyatt #213524
Samantha A. Bevins
Stephanie Dawson
Abbey Hub