23-ORD-315
November 30, 2023
In re: Shari Morris/Barren County Detention Center
Summary: The Barren County Detention Center (“Center”) did not
violate the Open Records Act (“the Act”) when it denied a portion of the
request that sought information without describing public records to be
inspected. However, the Center violated the Act when it denied part of
the request under KRS 61.872(6) without clear and convincing evidence
that the request was intended to disrupt its essential functions. The
Center also violated the Act when it failed to post on its website its rules
and regulations for submitting requests to inspect records and the
contact information of its official records custodian.
Open Records Decision
On September 19, 2023, Shari Morris (“Appellant”) submitted a request
containing 26 subparts to the Center, seeking records and information related to
various aspects of the Center’s operations from February 1, 2023, through September
12, 2023.1 On September 29, 2023, the Appellant contacted the Center again and
stated it had violated the Act by failing to respond to her request. The same day, the
Center stated it had previously responded to the Appellant on September 22, 2023,
and stated it was denying her request under KRS 61.872(6) because “much of what
[she] request[s] is for information and not actual records” and because the Center
“has reason to believe that [her] multiple requests are intended to disrupt essential
functions of” the Center. In response, the Appellant disputed the Center’s claim that
her request was intended to disrupt its essential functions and further complained
1
Specifically, the first 18 subparts of the request sought information about various aspects of the
Center’s operations. The next 7 subparts sought copies of contracts, purchase orders, invoices, and
inspection reports related to food provided by the Center. The last subpart sought a copy of “requests
by detainees for toxicology tests.”that the Center had not posted on its website its rules and regulations for submitting
requests or the contact information of its official records custodian. After receiving no
further response from the Center, 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.” However,
the Office has consistently found it is unable to resolve factual disputes between a
requester and a public agency, such as whether a requester received an agency’s
response to a request. See, e.g., 21-ORD-233 (the agency claimed it issued a response,
but the requester claimed he did not receive it); see also 22-ORD-125 (the agency
claimed it did not receive the request).
On appeal, the Center states it sent a response to the Appellant on September
22, 2023. However, unbeknownst to the Center, it had misspelled the Appellant’s
email address. Despite its mistake, the Center states it never received a rejected
delivery email, and therefore, assumed its response had been delivered to the
Appellant. The Office cannot resolve the factual dispute between the parties about
whether the Center knew its response had failed to be delivered. Therefore, the Office
cannot find that the Center violated the Act by failing to issue a timely response.
Moreover, the Center did not violate the Act by denying most of the Appellant’s
requests for information rather than describing records to be inspected. The first 18
subparts of the Appellant’s request each ask for “the number of” different items or
actions related of the Center’s operations. These requests do not describe public
records to be inspected, but rather, seek information. See, e.g., 21-ORD-014 (holding
an agency properly denied a request seeking “the total number” of unemployment
claims filed). The Act does not require public agencies to fulfill requests for
information, but only requests for describable public records. KRS 61.872; Dep’t of
Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The ORA does not dictate
that public agencies must gather and supply information not regularly kept as part
of its records.”).
Although the Center properly denied most of the Appellant’s request as one
seeking information, it failed to carry its burden of showing it properly denied the
remainder of the request as one intending to disrupt its essential functions. Under
KRS 61.872(6), “if the custodian has reason to believe that repeated requests are
intended to disrupt other essential functions of the public agency, 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 convincingevidence.” This exemption requires the agency to provide evidence of factors separate
from the request itself, because the official custodian must have “reason to believe”
the requester’s “intent” is not to inspect records, but to cause disruption. Id. However,
the mere fact that a requester has submitted multiple requests in a short period is
insufficient, standing alone, to demonstrate by clear and convincing evidence the
requester’s intent to disrupt the agency’s essential functions. See, e.g., 15-ORD-015;
96-ORD-193. Rather, the agency must provide other evidence to support its belief of
the requester’s intent, such as proof the requester has previously failed to retrieve or
pay for copies of records, or statements from the requester indicating malicious
intent. For example, the requester in 15-ORD-015 offered to stop making requests for
records in exchange for money. Evidence a requester stated he intends to disrupt an
agency’s functions because of some other grievance with the agency would also
constitute appropriate evidence to support denial under KRS 61.872(6).
Here, the Center explains that, since August 27, 2023, it has been inundated
with requests from a second requestor—not the Appellant. These requests are often
lengthy and contain several subparts that are a mix of requests for information and
requests for records, like the Appellant’s request here. The Center states numerous
requests were submitted on eight different days between August 27 and September
16. Further, these requests and the emails that followed often turned to subjects
unrelated to the Center’s records such as the requestor’s status as a “sovereign
citizen” or the applicability of the “Law of Merchants.”
When the Appellant submitted her request on September 19, the Center
reasonably believed she was associated with the second requester because of the
similarities between her request and those it had received from the other requester.
Even if the Center’s evidence could support a finding that the other requester
intended to disrupt its essential functions, the Center puts forth no evidence of the
Appellant’s intent to do so.2 Rather, the Center attempts to impute the intent of a
different requester onto the Appellant under a “guilt by association” theory. While
there are sufficient similarities between the Appellant’s request and those submitted
by another to suggest the two know each other and may even have similar interests
in various types of records to be inspected, the Center has not established by clear
and convincing evidence that the Appellant intends to disrupt its functions or has
conspired with another to do so. Accordingly, the Center has not provided clear and
convincing evidence to support its denial under KRS 61.872(6).
2
The requests of the second requestor and the Center’s responses to those requests are not the
subject of this appeal. Thus, the Office declines to determine whether the Center has provided clear
and convincing evidence to support its denial of those requests under KRS 61.872(6).Finally, the Appellant alleges the Center violated the Act when it failed to
publish on its website its rules and regulation for submitting a request to inspect
records, as well as the contact information of its official records custodian. “Each
public agency shall display in a prominent location accessible to the public, including
on its Web site,” the agency’s “rules and regulations pertaining to public records,”
“[t]he mailing address, e-mail address, and phone number of the official custodian of
the records or his or her designee to which all requests for public records shall be
made,” and “[t]he form developed by the Attorney General under [KRS 61.876(4)] that
may be used to request public records.” KRS 61.876(2).
On appeal, the Center states it has updated its website to identify the official
custodian of records and provide his contact information.3 However, the Center’s
website still does not publish its rules and regulations or the form developed by the
Attorney General. Thus, although the Center has corrected its violation for failing to
publish its official custodian’s contact information, it is still in violation of the Act for
not publishing its rules and regulations or the form developed by the Attorney
General.
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
#487
Distributed to:
3
The Center also claims the Appellant did not complain about its website prior to bringing this
appeal. However, the Appellant submitted an email to the Center on September 29, 2023, which she
styled as an “APPEAL for Violations of the Open Records Act” and asserted the Center’s website failed
to comply with KRS 61.876(2).Shari Morris
Aaron Shirley
Mike Richardson