24-ORD-109

24-ORD-109

April 30, 2024

In re: Caleb Ballard/Christian County Public Schools

Summary: Christian County Public Schools (“CCPS”) subverted
the Open Records Act (“the Act”) when it originally imposed a fee
for copies of electronic records beyond the actual cost of
reproduction, but has since corrected the violation by providing
the records free of charge. CCPS did not violate the Act when it
provided records redacted in accordance with KRS 61.878(1)(k)
and the Family Educational Right to Privacy Act (“FERPA”) in
lieu of providing the original records. The Office cannot resolve
the factual dispute between the parties about whether a CCPS
employee was present to permit a requester’s inspection of
records in-person.

Open Records Decision

On March 28, 2024, Caleb Ballard (“Appellant”) submitted eight requests
to CCPS for copies of ten categories of records related to its “zero tolerance
vaping policy” and a specific grant. On April 4, 2024, CCPS responded by
stating it had prepared 164 pages of records responsive to all but two categories
of the requested records. However, the names of students would be redacted
from those records under KRS 61.878(1)(a) and FERPA. CCPS denied
production of the remaining two categories because it did not possess any
records responsive to those parts of the Appellant’s request.1 On April 5, 2024,

1
CCPS states affirmatively that it denied two subparts of the Appellant’s request because
it does not possess any additional records responsive to these parts of his requests. Once a
public agency states affirmatively that it does not possess any additional records, the burden
shifts to the requester to present a prima facie case that additional records do exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). CCPS
additionally denied these parts of the requests because they are requests for information,
rather than requests for public records, and are outside the scope of the Act. The Act does notthe Appellant initiated this appeal, claiming CCPS did not produce records in
a timely manner because it was closed at the agreed upon time to “pick up” the
records. He also claims CCPS denied him the opportunity to “view the original”
records and is “attempting to charge” him for “electronic copies” of 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). If an agency grants a request to receive copies of public records
by mail or email, then it may withhold the records until it receives the
appropriate copying fee. See KRS 61.872(3)(b). The appropriate copying fee
must be reasonable and “shall not exceed the actual cost of reproduction,
including the costs of the media and any mechanical processing cost incurred
by the public agency, but not including the cost of staff required.”
KRS 61.874(3). When records are stored electronically and are easily accessible
by the agency, then the agency does not incur an “actual” cost to reproduce the
records electronically. See, e.g., 23-ORD-178. This is true even if the agency
prints the requested records to facilitate redactions, because KRS 61.878(4)
requires public agencies to separate exempt information from nonexempt
information and they cannot pass to the requester the cost of making
redactions. Id.; see also Dep’t of Ky. State Police v. Courier Journal, 601 S.W.3d
501, 508 (Ky. App. 2020). If a person believes a public agency has subverted
the intent of the Act by imposing an excessive copying fee, he or she may seek
the Attorney General’s review under KRS 61.880(4) as if the request had been
denied.

Here, on March 28, 2024, the Appellant submitted eight requests for ten
different categories of records. On April 4, 2024, CCPS notified him of its
decision to grant inspection of 164 pages of responsive records. However, CCPS
stated it would not email the records to the Appellant until he paid a copying
fee of $16.40, which represents $0.10 per page. CCPS admits on appeal that all
the requested records were originally in electronic format, although they were
located in several different computers and software programs. As such, it
printed all the responsive records to facilitate redactions and initially
attempted to pass that cost on to the Appellant. Thus, like the agency in 23-
ORD-178, CCPS subverted the intent of the Act by attempting to impose the

require public agencies to create records, answer questions, or provide information. Rather,
the Act requires a public agency to make public records available for inspection. KRS 61.872;
Dep't of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013).costs of redactions on to the Appellant, which amounts to an excessive copying
fee under KRS 61.880(4). Nevertheless, CCPS has now corrected its error by
providing copies of the redacted records to the Appellant free of charge.

In its response to the Appellant’s request, and as an alternative to the
$16.40 copying fee, CCPS also informed the Appellant he could inspect the
redacted records in person at the “central office,” but he could not “review the
originals because they are in active use, storage, or otherwise unavailable.”2
As such, CCPS did not delay the Appellant’s access because it notified him that
the records were available for inspection on April 4, which was five business
days after the Appellant submitted his request. The reason the Appellant did
not receive copies of the records within five business days is because, as
explained, CCPS erroneously attempted to charge him a copying fee for
electronic records. However, the Appellant’s delay in accessing the records was
also compounded by a miscommunication between the parties at a time CCPS
was actually closed for spring break.3

Although CCPS was closed for spring break, an employee agreed to meet
“until 9:20 a.m.” on April 5, 2024, to allow the Appellant to inspect the records.
The Appellant asserts the employee who agreed to meet him was not present
when he arrived, and the building was closed when he went to pick up the
records. On the other hand, CCPS claims its employee, who was actually
scheduled to be off work due to spring break, was nevertheless present until
9:30 a.m. to provide the records to the Appellant, who allegedly did not appear

2
A public agency may delay access to responsive records beyond five business days if such
records are “in active use, storage, or not otherwise available.” KRS 61.872(5). A public agency
that invokes KRS 61.872(5) to delay access to responsive records must also 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. Although CCPS invoked the language of KRS 61.872(5), that statute
is not relevant to this appeal because CCPS prepared the records for inspection within five
business days.
3
Extended breaks during the public school year cause unusual issues under the Act. The
Office has held that these breaks are not “legal holidays,” and therefore, do not extend the time
under KRS 61.880(1) for school districts or local boards of education to respond to a request to
inspect records. See, e.g., 24-ORD-020. However, a person’s right to inspect records in person
at an agency may only be exercised “[d]uring the regular office hours of the public agency.”
KRS 61.872(2)(a). Thus, while breaks in the school year may not qualify as “legal holidays,”
they also are not part of a school district’s “regular office hours.” Indeed, records may be
“unavailable” if they are locked away in a closed school building during a break in the school
year. The Office encourages the public and school districts to act reasonably during these
periods of the school year by recognizing both the public’s right to timely access public records
and the staffing situations that often arise during breaks in the academic calendar, which are
typically announced well in advance.until 10:00 a.m.4 Thus, a factual dispute exists between the parties as to
whether the requested records were actually made available to the Appellant
at the agreed upon time.

The Office has regularly found it is unable to resolve factual disputes
between the parties to an appeal under KRS 61.880(2)(a), including disputes
about whether the requested records were actually made available to the
requester. See, e.g., 23-ORD-220 (the Office cannot resolve a factual dispute as
to if a requester received a public agency’s response to their request); 22-ORD-
010 (the Office is unable to resolve a factual dispute between the parties as to
whether the records that have been provided are different from those records
sought but not provided); 19-ORD-083 (stating this Office cannot “resolve the
factual dispute between the parties regarding the disparity between records
which have been provided and those sought but not provided”). Similarly, here,
the Office cannot resolve the factual dispute between the parties as to whether
CCPS actually made the records available to the Appellant because the Office
cannot make a factual finding about when the parties agreed to meet and
whether either party failed to appear at the mutually agreed time. As a result,
the Office cannot find that CCPS violated the Act.

Finally, the Appellant claims that CCPS violated the Act when it denied
his right to inspect “the original records.” As such, the Appellant appears to be
claiming the redactions CCPS made were improper. CCPS redacted the
“[s]tudent names and identifying information” from the original records under
“KRS 61.878(1)(a) and (k) to comply with” FERPA “and the Kentucky
Educational Right to Privacy.”5

20 U.S.C. § 1232g(b)(1), a subsection of federal law commonly referred to
as FERPA, provides:

(1) No funds shall be made available under any applicable
program to any educational agency or institution which has a
policy or practice of permitting the release of education records
(or personally identifiable information contained therein other

4
It is unclear how CCPS knows the Appellant did not arrive until 10:00 a.m. on April 5,
2024.
5
KRS 61.878(1)(a) exempts from inspection “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy[.]” Because the Office affirms the redactions under FERPA, it is
unnecessary to determine whether the redactions could also be sustained under KRS
61.878(1)(a).than directory information, as defined in paragraph (5) of
subsection (a)) of students without the written consent of their
parents to any individual, agency, or organization [with certain
limited exceptions not relevant here].

Here, it is undisputed that CCPS is an educational agency under FERPA.
CCPS states that it only redacted “[s]tudent names and identifying
information” from the records. Student names and identifying information
clearly are “personally identifiable information,” the release of which FERPA
prohibits. KRS 61.878(1)(k) exempts “[a]ll public records or information the
disclosure of which is prohibited by federal law,” such as FERPA. Thus, CCPS
did not violate the Act when it provided records redacted in accordance with
KRS 61.878(1)(k) and FERPA, in lieu of providing the original unredacted
records.

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.

Russell Coleman

Attorney General

/s/ Matthew Ray

Matthew Ray

Assistant Attorney General

#184

Distributed to:

Caleb Ballard
Jessica Addison
Christopher Bentzel
Jack N. Lackey, Jr.