24-ORD-048
February 28, 2024
In re: Austin Horn/Office of the Governor
Summary: The Office of the Governor (“the agency”) violated the Open
Records Act (“the Act”) when it denied a request as too imprecise and
unreasonably burdensome.
Open Records Decision
Austin Horn (“the Appellant”) emailed a request to the agency for “the full
emails threads to or from Governor’s Office employees” containing six keywords:
“HHR”; “Revolutionary Racing”; “Sandy Ridge”; “EBCI”; “Larry Brown”; and “TJ
Morrison.” The Appellant clarified the “time frame of the request is inclusive of the
last 2 years from today.” In a timely response, the agency denied the Appellant’s
request because he did not “precisely describe” the records he sought. The agency also
denied the request as unreasonably burdensome. Specifically, the agency claimed the
Appellant’s request was not specific enough because it “does not identify a specific
employee, a specific department within the [agency] or the specific type of record”
sought. As such, the agency claimed it would have to search “tens of thousands” of
emails contained in the email inboxes of roughly 50 current employees, some former
employees, and “constituent emails and open records requests.” This appeal
followed.1
Under KRS 61.872(3)(b), “[t]he public agency shall mail copies of the public
records to a person . . . after he or she precisely describes the public records which are
1
The Appellant’s request was submitted to the agency on the standardized open records request
form promulgated by the Attorney General. See 40 KAR 1:040. He attached the form to an email, but
in the body of the email he explained that the scope of the request was limited to two years. When the
Appellant initiated this appeal, he provided only a copy of the standardized open records request form
he submitted to the agency, but he omitted the email to which the request form had been attached. To
seek the Attorney General’s review of an agency’s denial of a request under KRS 61.880(2)(a), the
requester must provide a copy of both the written request and the agency’s response. Because the
email modified the substance of the request, it is itself part of the request and should have been
provided initially. However, the Appellant has corrected his initial omission and provided the email to
the Office, thus complying with the requirements of KRS 61.880(2)(a).readily available within the public agency.” A description is precise “if it describes the
records in definite, specific, and unequivocal terms.” 98-ORD-17 (internal quotation
marks omitted). This standard may not be met when a request does not “describe
records by type, origin, county, or any identifier other than relation to a subject.” 20-
ORD-017 (quoting 13-ORD-077). In particular, requests for any and all records
“related to a broad and ill-defined topic” generally fail to precisely describe the
records. 22-ORD-182; see, e.g., 21-ORD-034 (finding a request for any and all records
relating to “change of duties,” “freedom of speech,” or “usage of signs” did not precisely
describe the records).
Here, the Appellant did not seek “any-and-all records” related to a broad and
ill-defined topic. Rather, he sought emails, which are fairly easy to search. Moreover,
the Appellant narrowed the scope of his request to only those emails that contain any
of six specific keywords. The Appellant narrowed the request still further by limiting
its scope to only those emails sent or received by the agency in the past two years.
Although the agency faults the Appellant for not identifying the employees or
departments that might possess responsive records, the Act does not require the
Appellant to do so. Because he seeks copies of records by mail, the Act requires him
to precisely describe the records sought, not their potential location. The agency is the
party responsible for ascertaining the location of responsive records or the personnel
who may possess them. Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 48 n.2 (Ky.
2021) (“ORA requests routinely seek ‘all documents pertaining to [subject matter].’
The responsibility for identifying responsive records and any applicable exception lies
with the receiving public agency, not the requester.”).
The Office has previously found that a request for any emails sent or received
by agency personnel containing certain keywords is not a vague request. See, e.g., 23-
ORD-006 (involving emails of 13 employees); 23-ORD-010 (same); 23-ORD-230
(emails of 30 employees). As stated in 23-ORD-230, “The fact the agency may employ
30 people reflects the burden of the search, not the inability to conduct one because
the agency cannot determine what is being sought.” Similarly, the fact this agency
employs 50 people might make its search slightly more burdensome than an agency
employing 30 people, but it does not make the Appellant’s request any less specific.
Simply put, the Appellant’s request only requires the agency to ask each of its
employees to search for a mere six keywords in their emails. As such, the request is
sufficiently specific for the agency to conduct the statutorily required search.
Of course, the number of emails that may be found in response to that search
would be relevant to how burdensome the request truly is, especially if the content of
those emails is subject to statutory exemptions requiring the emails to be redacted.
Indeed, imprecise requests may result in a burden that becomes unreasonable
because of the requester’s failure to limit the scope of the request. Under
KRS 61.872(6) “[i]f the application places an unreasonable burden in producingpublic records” on the agency, then the agency can deny the request. However, an
agency denying a request under KRS 61.872(6) must support its denial by “clear and
convincing evidence.” Id. In addition to claiming the request is too imprecise, the
agency here also claims the Appellant’s request is unreasonably burdensome.
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
catalog 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).
Here, however, the agency has not estimated or quantified the number of
records at issue, or explained how they may contain exempt information, because it
has not conducted a search. As such, the main factors the Office considers—
numerosity and the exempt status of the records—do not tilt in the agency’s favor.
And because emails can be searched by querying keywords, the last factor also cuts
against the agency. At bottom, the agency has put forward no evidence the request is
unreasonably burdensome, let alone evidence that is clear and convincing. As such,
the agency violated the Act when it denied the Appellant’s request.
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.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General#39
Distributed to:
Austin Horn
Travis Mayo
Laura Tipton
Taylor Payne