23-ORD-329
December 13, 2023
In re: Mikayla D. Ford/Board of Cosmetology
Summary: The Board of Cosmetology (“the Board”) subverted the Open
Records Act (“the Act”) within the meaning of KRS 61.880(4) when it
failed to adequately explain why a delay of 55 days is necessary to
provide responsive records.
Open Records Decision
On October 20, 2023, Mikayla D. Ford (“Appellant”) submitted a request to the
Board seeking: (1) a copy of her complete licensing file; (2) copies of any complaints
against her that were submitted to the Board in 2021; (3) a copy of the Governor’s
executive order appointing a specific Board member; (4) a copy of the Executive
Director’s licensing file; (5) copies of any emails sent or received by six individuals
between January 1, 2021, and the present that contained the Appellant’s name, the
names of either of two businesses, or a specific regulation; and (6) any transcripts of
meetings “or documents” generated between January 1, 2021, and the present that
mention the Appellant or “Eyelash artistry/programs.”
On October 31, 2023, the Board responded and invoked KRS 61.872(5) “[d]ue
to the current workload of staff, the number of documents implicated in [the] request
and the need to review those documents for possible exempted information.” The
Board stated it needed “additional time to compile a full response” and it “anticipated
responding” to the Appellant’s request “no later than December 18.” The Appellant
initiated this appeal on November 9, 2023, claiming the Board subverted the intent
of the Act within the meaning of KRS 61.880(4) when it failed to explain why it needed
55 days to provide the records.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.” KRS 61.880(1) (emphasis
added). Thus, when an agency receives a request to inspect records, the Act requires
it to complete a search for responsive records within five business days so it can
“determine” whether to grant or deny the request. After conducting its search, if the
agency determines that any responsive records are “in active use, storage, or not
otherwise available,” it may delay access to them. KRS 61.872(5). However, a public
agency that invokes KRS 61.872(5) to delay access to responsive records must, within
five business days of receipt of the request, 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. Id.
If a requester, like the Appellant here, believes the agency’s delay is
unreasonable, he or she may seek the Attorney General’s review by alleging the
agency subverted the intent of the Act “past the five (5) day period described in”
KRS 61.880(1). See KRS 61.880(4). In determining how much delay is reasonable, the
Office has considered the number of records, the location of the records, and the
content of the records. See e.g., 22-ORD-176; 01-ORD-140; OAG 92-117. Weighing
these factors is a fact-intensive analysis. For example, this 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. However, the Office has found that a six-
month delay was reasonable to review 22,000 emails for nonexempt information. See,
e.g., 12-ORD-197. Ultimately, the agency carries the burden of proof to sustain its
actions. KRS 61.880(2)(c).
Here, the Board received the Appellant’s request on October 24, 2023, and
issued a timely response on October 31, 2023. However, the Board’s response did not
notify the Appellant of its determination whether to grant or deny the request. While
the Board invoked KRS 61.872(5), it did not state the records would be available on
December 18, but that it intended to “compile a full response” to the Appellant’s
request by then because it had not yet completed its search. The Board’s response
also did not quantify or estimate the number of records involved or state whether
they were “in active use, storage, or not otherwise available.” Accordingly, the Board’s
response failed to provide a detailed explanation of the cause of delay because it
merely asserted it needed until December 18 to complete its search and prepare “a
full response.”Nor has the Board carried its burden on appeal that a delay of 55 days is
reasonable. The Board explains the delay is necessary because its five “employees
have a great deal of work to do that is not related to open records requests” and it is
“transition[ing] to a new database/licensing management system” that has raised
various issues while transferring “40,000 licensees” to the new system. However,
every public agency is tasked with various, often numerous, responsibilities, and yet,
they still must comply with the Act. An agency may only invoke KRS 61.872(5) when
the records are “in active use, storage, or not otherwise available,” not merely because
its employees are too busy with their other responsibilities to comply with the Act.
Similarly, the fact an agency is too busy fulfilling other requests made under
the Act also is no basis to invoke KRS 61.872(5). See, e.g., 22-ORD-167; 19-ORD-188
n.1. Here, much of the Board’s justification in delaying access to the requested records
is the burden other requests to inspect records have placed on it. While the Board has
quantified the number of records responsive to those other requests and states those
other records may need to be redacted, it has not estimated the number of records
this request implicates or explain why it needs 55 days to respond to this request.
The only explanation the Board proffers in support of its 55-day delay in
providing the records is that they are “contained in different formats: hardcopy;
electronic; some in [its] previous database; some in a network drive; some in a cloud-
based system; and some are in active use.” Thus, the Board has explained that the
records are stored in various places. Even so, it appears the records are all stored
electronically, not scattered in multiple physical locations that might necessitate time
and travel to retrieve. Having failed to quantify or estimate the number of records
implicated by the Appellant’s request, or explain what material contained in those
records may be exempt and require separation, the Board has failed to carry its
burden of establishing that a 55-day delay is reasonable.1 As a result, the Board
subverted the intent of the Act within the meaning of KRS 61.880(4).
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
1
Indeed, aside from some personal information that may need to be redacted from the Executive
Director’s licensing file, emails containing preliminary opinions or discussions with Board counsel
regarding legal services that might be subject to the attorney-client privilege, or records involving
active complaints that may be subject to KRS 61.878(1)(h), it is not readily apparent how any of the
other requested records are exempt. The Board has not explained what exemptions the records may
implicate. Thus, it is not clear how much time the Board would actually require to separate nonexempt
information from exempt information.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
#512
Distributed to:
Mikayla D. Ford
Julie M. Campbell
Christopher D. Hunt