23-ORD-343
December 28, 2023
In re: Anne Coorssen/Oldham County Schools
Summary: Oldham County Schools (“the District”) violated the Open
Records Act (“the Act”) when it invoked KRS 61.872(5) to delay access to
records without providing a detailed explanation for the cause of the
delay. But the District’s delay in producing records within 10 business
days of receiving the request was not unreasonable. The District also
violated the Act when it denied a request as unreasonably burdensome
without substantiating the denial with clear and convincing evidence.
Open Records Decision
On October 3, 2023, Anne Coorssen (“the Appellant”) submitted a request to
the District for copies of: (1) all requests to inspect records submitted to the District
from September 1, 2022, to the present, and the District’s responses thereto, in which
the Appellant was referenced; (2) “[a]ll open records requests made in 2021-2022 and
2020-2021, including but not limited to those that were responded to via email by the
general counsel. In lieu of the actual requests and responses, a list similar to the list
included on the September 25, 2023 board agenda is acceptable”; and (3) “[a]ll
training presentations, slide decks, papers, and presentations prepared by [the
Appellant] between July 1, 2018 and September 2, 2022.”
In a timely response, on October 10, 2023, the District stated the records
responsive to the Appellant’s first two requests would not be available until October
31, 2023 “[d]ue to the breadth” of the requests. The District further stated the
“responsive documents involved are not stored in such a way that can be individually
reviewed for any information within each document that would be exempt under the
Open Records Act or other relevant law and produced in the electronic format, as
requested, within the five-day statutory period.” The District also denied the
Appellant’s third request because she did not “precisely describe” the records sought,KRS 61.872(3)(b), and it was unreasonably burdensome to search for the requested
records, KRS 61.872(6).
The next day, the Appellant replied to object to the District’s delay. She stated
the District had already prepared a list, and shared it publicly, which identified the
requests it had received that referred to her. Accordingly, she believed responsive
records should be readily accessible. With respect to her second request, she noted,
based on data the District had published, that it had only received 16 requests to
inspect records during the two-year period. Moreover, because the Appellant was
formerly the District’s general counsel and was the individual who had responded to
those requests, she advised the District where the responsive records were stored
electronically. Similarly, because of her prior experience as general counsel, she
advised the District where to search for records responsive to her third request.
In response, the District told the Appellant that records responsive to her first
and second requests would be available “by the end of the week.” However, it
continued to deny the Appellant’s third request on the grounds she had failed to
precisely describe the records sought. On October 15, the District attempted to email
the records responsive to the Appellant’s first and second requests, but did not attach
them to the email. The District then emailed the responsive records the morning of
October 17, after the Appellant had already submitted her appeal.
On appeal, the Appellant claims the District failed to properly invoke
KRS 61.872(5) to delay access to records, and its delay in providing them was
unreasonable. She also claims the District violated the Act by denying her third
request as unreasonably burdensome.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). A public agency may also delay access to responsive records if such
records are “in active use, storage, or not otherwise available.” KRS 61.872(5). A
public agency invoking KRS 61.872(5) to delay access to responsive records must
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. Here, the District’s initial
response failed to provide a detailed explanation why it could not provide records
responsive to the Appellant’s first and second requests until October 31. It stated only
that the records were “not stored in such a way” to facilitate review of exempt
information and produce them in the requested electronic format. The District did
not quantify or estimate the number of records implicated, or explain how they were
stored such that it could not conduct its review. Accordingly, the District’s response
failed to provide the “detailed explanation” required under KRS 61.872(5).
Nevertheless, the District ultimately produced the records within 10 business days.
This relatively brief delay was not unreasonable.On appeal, the District continues to deny the Appellant’s third request because
it claims the Appellant has failed to “precisely describe” the records she seeks, and
therefore, the request places an unreasonable burden on the District. When a person
seeks to inspect public records by receiving copies in the mail, he or she must
“precisely describe” the records to be inspected. KRS 61.872(3)(b). A public agency
may deny a request to inspect records under KRS 61.872(6) “[i]f the application places
an unreasonable burden in producing public records” on the agency. However, an
agency denying a request under KRS 61.872(6) must support its denial with “clear
and convincing evidence.” Id. When determining whether a particular request places
an unreasonable burden on an agency, the Office considers the number of records
implicated, whether the records are in a physical or electronic format, and whether
the records contain exempt material requiring redaction. See, e.g., 97-ORD-088
(finding that a request implicating thousands of physical files pertaining to nursing
facilities was unreasonably burdensome, where the files were maintained in physical
form in several locations throughout the state, and each file was subject to
confidentiality provisions under state and federal law). In addition to these factors,
the Office has found that a public agency may demonstrate an unreasonable burden
if it does not catalogue its records in a manner that will permit it to query keywords
mentioned in the request. See, e.g., 96-ORD-042 (finding that it would place an
unreasonable burden on the agency to manually review thousands of files for the
requested keyword to determine whether such records were responsive). When a
request does not “precisely describe” the records to be inspected, KRS 61.872(3)(b),
chances are higher that the agency is incapable of searching its records using the
broad and ill-defined keywords used in the request.
Here, the Appellant’s third request precisely described the records she sought:
all “training presentations, slide decks, papers, and presentations prepared by [the
Appellant as general counsel] between July 1, 2018, and September 2, 2022.” Aside
from the somewhat vague category of “papers,” the request specified the types of
records sought, the person who created them, and the period in which they were
created. Moreover, after receiving the District’s denial, the Appellant went further
and explained precisely where the District could locate the requested records. It is
difficult to imagine how much more precise the Appellant could have been. The
District has not quantified or estimated the number of records the request implicates,
and only asserts generally that some records may contain privileged attorney-client
communications. Accordingly, the District has not proved by clear and convincing
evidence that the Appellant’s request is unreasonably burdensome.
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 thataction or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#466
Distribution:
Anne Coorssen
Eric Farris
Jason Radford