23-ORD-320
December 5, 2023
In re: Courtney Graham/Kentucky Board of Cosmetology
Summary: The Kentucky Board of Cosmetology (“the Board”) failed to
give a detailed explanation of the cause for delay when it cited
KRS 61.872(5) in responding to a request for records. However, the
Board did not subvert the intent of the Open Records Act (“the Act”)
within the meaning of KRS 61.880(4) when it established on appeal that
the additional delay in producing records was warranted.
Open Records Decision
On October 10, 2023, attorney Courtney Graham (“Appellant”) requested
copies of five categories of records in connection with her representation of a client
whose license the Board had revoked. First, the Appellant requested “the meeting
video, agenda, all meeting materials provided to Board members, and the Board
Meeting minutes” for all Board meetings from January 2021 through October 2023.
Second, she requested the “file, including all evidence regardless of form, compiled
for purposes of [the] grand jury testimony” of a Board inspector against her client.
Third, the Appellant requested the “Chain of Custody” logs or forms for a computer,
a cell phone, and records taken from her client’s premises on March 3, 2022. Fourth,
she requested all emails, attachments, letters, and text messages (on Board-issued
cell phones) sent or received by any of four named individuals between January 1,
2021, and October 10, 2023, containing any of five key words. Finally, the Appellant
requested all emails, attachments, letters, and text messages (on Board-issued cell
phones) sent or received by any of the same individuals between January 1, 2018,
and October 10, 2023, containing the words “Ethics Commission.”
On the fifth business day after receiving the Appellant’s request, the Board
stated it was “conducting a thorough search for documents” but had not completed
that search. Citing KRS 61.872(5), the Board asserted that, “[d]ue to the volume ofdocuments requested, current staff workload, and the need to review those documents
for possible exempted information,” it needed additional time and “anticipate[d]
responding . . . no later than November 30.” The Appellant replied and stated she
understood that a search for emails might require additional time, but asked whether
the Board could produce the other records “in the short term.” The Board responded
that it could not. This appeal followed.
Under KRS 61.880(1), a public agency must decide within five business days
whether to grant a request or deny it. This time may be extended under
KRS 61.872(5) when records are “in active use, in storage or not otherwise available”
if the agency gives “a detailed explanation of the cause . . . for further delay and the
place, time, and earliest date on which the public record will be available for
inspection.” In light of this provision, the Attorney General has recognized that
persons requesting large volumes of records should “expect reasonable delays in
records production.” 12-ORD-228. However, a vague statement about the “volume” of
a request is not a “detailed explanation” under KRS 61.872(5). See, e.g., 22-ORD-164;
17-ORD-194. Furthermore, concerns regarding staff workload are an insufficient
justification for delay. See, e.g., 22-ORD-167. A public agency must “make proper
provision for the uninterrupted processing of open records requests” by having “an
individual available to timely process” those requests. 04-ORD-088. Thus, the cursory
statement contained in the Board’s initial response failed to provide the “detailed
explanation” required by KRS 61.872(5).1
Under KRS 61.880(4), a person who “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), may appeal to the
Attorney General as if the record had been denied. Here, the Appellant claims the
Board has subverted the intent of the Act by unreasonable delay in producing records.
On appeal, however, the Board provides more detail about the scope of records
implicated by the Appellant’s request. In particular, during the time period of the
request, the materials reviewed by the Board at its meetings include “1,337 cases
involving
applications
for
licensure,
disciplinary
cases,
or
requests
for
reconsideration.” In disciplinary cases, which constitute the majority of the matters
before the Board, each record “includes, on average, six documents and 25
photographs/videos,” for a total of approximately “8,022 separate documents and
33,425 photographs/videos.” Documents pertaining to other matters reviewed at
Board meetings include “financial statements; regulation drafts; proposed legislation;
and documents and material provided by those requesting to address the Board in
varied topics.” Furthermore, the Board’s files “frequently include personal
1
While the Board claims it could not have estimated the number of responsive records within the
five-day response period under KRS 61.880(1), it could have given more substantive explanation of the
types of records contributing to the extensive volume and the nature of the information to be redacted.information, such as contact information for complainants, for licensees, and
photographs of drivers’ licenses,” which might be subject to redaction. Furthermore,
the Board explains it has recently made a “transition to a new database/licensing
management system,” so that responsive records are partially contained in the old
database and partially contained in the new one, along with “some in a network drive;
some in a cloud-based system; and some are in active use.”
Under KRS 61.880(1), the Board’s response to the Appellant’s request was due
on October 17, 2023. The Board’s commitment to produce the responsive records on
November 30, 2023, results in a delay of only 29 business days. In determining
whether a delay is reasonable, the Office considers such factors as “the number of the
records, the location of the records, and the content of the records,” including whether
they contain both exempt and nonexempt information. 21-ORD-045. Here, not only
has the Appellant admitted a delay may be necessary to obtain the requested emails,
but the Board has now substantiated that other portions of the request are quite
voluminous and scattered, the records are likely to require redaction, and it is
working in good faith to fulfill the request. In view of the totality of the circumstances,
the Board did not subvert the intent of the Act within the meaning of KRS 61.880(4)
when it delayed the production of records until November 30, 2023.2
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
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
#497
2
Although the Board points out it is simultaneously attempting to process another voluminous
request for records with minimal staff, staffing issues and the “volume of unrelated requests” do not
justify a delay in producing records. 22-ORD-134. However, the Board has otherwise substantiated its
need for additional delay in this case.Distributed to:
Courtney L. Graham, Esq.
Christopher D. Hunt, Esq.
Ms. Julie M. Campbell