24-ORD-152
June 26, 2024
In re: Jewish Student Center/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it denied a request for records as
unreasonably burdensome.
Open Records Decision
On April 10, 2024, the Jewish Student Center1 (“the Appellant”) submitted a
request to the University to inspect “all emails, documents, and correspondence
containing the word ‘Chabad’ from” the University’s Director of Religious and
Spiritual Life, from January 11, 2022, to the date of the request. In a timely response,
the University denied the request as “unduly burdensome pursuant to KRS 61.872(6),
as an attempt to search for the records under such vague information has returned
over 2,500 pages of documents [and] without more specific information, [the
University] cannot narrow the production to determine what documents are
responsive to this request.” This appeal followed.
A person may inspect public records by receiving copies in the mail “after he or
she precisely describes the public records which are readily available with the public
agency.” KRS 61.872(3)(b) (emphasis added). But if, as here, the requester seeks to
inspect records in person, he need only “describ[e] the records to be inspected.”
KRS 61.872(2)(a). As such, the description is sufficient if it is “adequate for a
reasonable person to ascertain the nature and scope of [the] request.” Commonwealth
v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
1
The email containing the Appellant’s request was not signed by anyone, nor did it contain the
requesting individual’s name or a statement that demonstrated how the Appellant qualified as a
resident of the Commonwealth of Kentucky. Under KRS 61.872(2)(a), a public agency may require a
written request for inspection that contains the name and signature of the person making the request,
as well as “a statement . . . of the manner in which the applicant is a resident of the Commonwealth
under KRS 61.870(10)(a) to (f).” Here, however, the University has waived those requirements.Here, the Appellant described the records as “all emails, documents, and
correspondence” from an identified University employee during a 27-month period
that contain the word “Chabad.” On appeal, the University claims the request would
require it to search “incalculable numbers of widely dispersed and ill-defined records.”
However, the Appellant’s request is limited in temporal scope, limited to records
originated by one individual, and limited by a specific keyword. The University has
already conducted a search of the Appellant’s emails, which has yielded
approximately 2,500 responsive records, but claims it cannot determine which
records are implicated by the terms “documents” and “correspondence.”
“Correspondence” is not an excessively vague description, as “the common and
ordinary meaning of ‘correspondence’ is ‘communication by letters or email,’ or ‘the
letters or emails exchanged.’” 22-ORD-255. Thus, a reasonable person can determine
the nature of a request for “correspondence.” “Documents,” by contrast, is potentially
a much broader term that could encompass many types of records. But here, the
request is limited to documents “from” a specific employee during a specific time
period. Thus, this is not an “any and all records” type of request, and the description
of the records is sufficient for a reasonable person to ascertain the nature and scope
of the Appellant’s request.
The University further claims it would be unreasonably burdensome to fulfill
the Appellant’s request. Under KRS 61.872(6), a public agency may deny a request to
inspect records “[i]f the application places an unreasonable burden in producing
public records or if the custodian has reason to believe that repeated requests are
intended to disrupt other essential functions of the public agency.” However, an
agency must substantiate its denial “by 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
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, the University claims the request is unreasonably burdensome for four
reasons. First, it claims the description is excessively vague because it requires a
search of records “that may be found throughout the University.” But this is not thecase. A public agency discharges its duty under the Act “by searching in the location
where responsive [records] would likely exist.” 24-ORD-112. Here, that location would
likely be the named employee’s computer or email account. See 20-ORD-094 (finding
that an agency conducted an adequate search for emails to and from four named
employees by searching their individual email accounts). Because the Appellant has
provided a searchable keyword and a limited time period for the request, the
University’s duty to search the sender’s computer or email account is not an
unreasonable burden.
Second, the University claims the request is unreasonably burdensome
because it “implicates the constitutional rights” of its employee. As the Office has
consistently noted, “[i]ssues unrelated to the Open Records Act are beyond the
Attorney General’s review powers under KRS 61.880,” including constitutional
issues. 09-ORD-057 (citing 08-ORD-142; 99-ORD-121); see also 17-ORD-086; 06-
ORD-161; 05-ORD-183 n.5. Here, in support of its claimed First Amendment
violation, the University cites a footnote in 23-ORD-349, a decision concerning a
request for text messages on privately-owned devices. But the Appellant did not
request messages from a University employee’s privately-owned device, nor are such
messages presumptively “public records” under the Act. See 24-ORD-118. Rather, a
public agency “is responsible only for those records within its own custody or control.”
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013) (citing
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980)). Here,
the University has custody and control of its employee’s public email account.
Accordingly, the request is not unreasonably burdensome by reason of the types of
records it encompasses or any purported constitutional implications.
Third, the University argues it is unreasonably burdensome to review and
redact the records responsive to the request. Under the Act, if a record contains both
exempt and nonexempt portions, “the public agency shall separate the excepted and
make the nonexempt material available for examination.” KRS 61.878(4). “[T]he
obvious fact that [redaction] will consume both time and manpower is, standing
alone, not sufficiently clear and convincing evidence of an unreasonable burden.”
Chestnut, 250 S.W.3d at 664. Thus, “[n]either the number of records at issue nor the
fact they must be redacted, in isolation, is dispositive of whether a request is
unreasonably burdensome.” 24-ORD-008. Here, the University’s search of its
employee’s email account has resulted in approximately 2,500 responsive emails.2
The University represents that it would take an employee approximately 40 hours to
review and redact those records. Although the University may have been able to
sustain the need to delay access to records under KRS 61.872(5) on that basis, see 21-
ORD-045, it has not sustained by clear and convincing evidence that the task places
2
It is not clear whether the University’s search included attachments to emails that include the
search term, or only the text of the emails themselves.such an unreasonable burden on the agency that the request could be fully denied
under KRS 61.872(6).
Finally, the University argues the request is unreasonably burdensome due to
the “triviality” of the Appellant’s motive for making the request, which the University
claims is “to pursue personal grudges.” In general, however, the “motive or purpose
of [a] request is irrelevant” under the Act. 95-ORD-27. More specifically, the
requester’s motive is only relevant under KRS 61.872(6) if the agency can prove by
clear and convincing evidence “that repeated requests are intended to disrupt other
essential functions of the public agency.” The University has offered no such proof
here. Accordingly, the University violated the Act when it denied the Appellant’s
request as unreasonably burdensome under KRS 61.872(6).3
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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#199
Distribution:
Jewish Student Center
Rabbi Shlomo Litvin
William E. Thro, Esq.
Ms. Amy R. Spagnuolo
3
Alternatively, the University claims the Appellant’s request may be partially denied under KRS
61.878(1)(a), KRS 61.878(1)(i), KRS 61.878(1)(j), KRS 61.878(1)(k), KRS 61.878(1)(s), 20 U.S.C.
§ 1232g, and the attorney-client privilege. However, because the University has not yet denied
inspection of any specific records on those grounds, those arguments are not ripe for review.