Oldham County resident Christeena Gallahue this week sued the Oldham County Board of Education under the open records law. She is one of a growing number of Kentuckians whose success in asserting a right of access to public records is thwarted by a recalcitrant public agency.

Gallahue is seeking enforcement of 24-ORD-262. That open records decision — issued by the Kentucky Attorney General on December 9, 2024 — favored Gallahue’s position on the issue of access to emails exchange by five named individuals for an eight month period, in which one or more of 17 search terms appeared.

https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-ORD-262.pdf

The board denied Gallahue’s request, claiming — as it regularly does — that it contained an imprecise description of the records sought. As evidence, the board emphasized “the large number of potentially responsive records” it might entail.

The Attorney General disagreed, finding the request sufficiently precise and rejecting a claim of unreasonable burden that it did not timely advanced.

Having received an unfavorable open records decision, the board had two options under the law:

• produce all emails responsive to Gallahue’s request within 30 days; or

• appeal the Attorney General’s open records decision to circuit court within 30 days.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51394

The Oldham County Board of Education ill-advisedly chose a nonexistent third option. It did nothing.

After 30 days, 24-ORD-262 became law. The open records law declares that an unappealed open records decision “shall have the force and effect of law and shall be enforceable in the Circuit Court.”

Following several good faith efforts to resolve the open records issue, including a final “demand” letter advising that Gallahue intended to sue if the records were not produced in total, Gallahue and her attorneys, Elizabeth Woodford and Tom Miller, of Lexington’s Miller, Griffin, & Marks, P.S.C. Initiated legal action under KRS 61.880(5)(b).

(As counsel to the Lexington Herald Leader, and lead counsel in 2021’s University of Kentucky v. The Kernel, Inc, Woodford and Miller are no strangers to the Kentucky’s open records and meetings laws. Gallahue is very ably represented.)

https://casetext.com/case/univ-of-ky-v-kernel-press-inc

The board then crafted a fourth nonexistent option: it treated the demand letter as a new request, this time denying Gallahue’s request as “unreasonably burdensome,” a denial that must be supported by clear and convincing evidence.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391 (see subsection(6))

Kentucky’s statute directly addresses this issues. It is crystal clear. Gallahue gets all responsive records without redactions — other than those very few that state and/or federal law mandate. For the expenses she has incurred — attorneys fees and costs — she should be fully reimbursed by the board. And should the Oldham Circuit Court judge to whom the case is assigned find that the records were willfully withheld — not a stretch by any means — she should be awarded penalties of up to $25 per day for each day the records were withheld. Staff and administrators would also benefit from effective open records and meetings training — not a remedy contemplated by statute but clearly advisable on these facts.

Twice Kentucky’s appellate courts have resolved this question. Cabinet for Health and Family Services v Todd County Standard, the Kentucky Court of Appeals flatly rejected arguments the Cabinet made for the first time in proceedings brought by the Todd County Standard to enforce the newspaper’s favorable ruling in an open records dispute. The court observed:

“Under KRS 61.880(5)(a), an attorney general’s opinion ‘shall’ be ‘appeal[ed]’ to a circuit court within thirty days of rendering the opinion. If a party fails to timely appeal, KRS 61.880(5)(b) is clear; the attorney general’s opinion ‘shall have the full force and effect of law and shall be enforceable in the Circuit Court . . . .’ In such an enforcement action, the circuit court does not reach the merits of the case under the ORA but merely enforces the attorney general’s opinion.

“Recently, our Supreme Court commented upon KRS 61.880(5):

“‘Once the Attorney General renders a decision either party then has thirty days within which to bring an action pursuant to KRS 61.882(3) in the Circuit Court. Although the statutes refer to this second type of Circuit Court proceeding as an ‘appeal’ of the Attorney General's decision, it is an ‘appeal’ only in the sense that if a Circuit Court action is not filed within the thirty-day limitations period, the Attorney General's decision becomes binding on the parties and enforceable in court. City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 (Ky. 2013).”

The Oldham County Board of Education has exhausted it legal options through inaction. Will it now add bureaucratic insult to public injury by engaging in protracted litigation to avoid an inevitable outcome — at the public’s expense?

In at least two other active open records cases that have been brought to our attention -- one involving a university and the other the Kentucky State Police — requesters are experiencing the same frustration. The Attorney General has ruled for those requesters and the public agencies have played out the clock without producing the records or appealing the Attorney General’s decision. Like Gallahue, the requesters may be forced to retain counsel, pay filing fees, and wait to enforce their statutory rights under the open records law.

There are likely many more.