22-ORD-010 | KOGC

Opinion

Opinion By: Matthew RayAssistant Attorney General

Open Records Decision

On November 22, 2021, Mary Talbott ("Appellant") submitted a request to the University for "[a]ll records . . . at the University related" to a specific person. The Appellant specified that the scope of her request should include "letters, notes, communications, call logs, work logs, emails, text messages, recordings, reports and any other such communications and documents" as well as "written, digital, electronic, recorded" records. The Appellant also attached a list containing 26 subparts of records she also sought related to the same person. On December 9, 2021, having received no response from the University, this appeal followed.

Under KRS 61.880(1), a public agency must respond to a request made under the Act within five business days of receipt of the request. Here, the University did not respond within five business days. Thus, it violated the Act.

On appeal, the University claims to have provided the Appellant with all responsive documents in its possession. However, the Appellant claims that she is "not certain [she] received all the attachments[.]" Moreover, the Appellant "believe[s] [the University]'s response is deficient" because it does not include "many records requested[.]" For example, the Appellant contends that the University did not provide all requested emails.

Historically, this Office has found that it is unable to resolve this type of factual dispute between parties. See, e.g. , 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"). Accordingly, this Office is unable to resolve the factual dispute between the parties that the records the Appellant received are different from those records she requested but was not provided.

A party aggrieved by this decision may appeal it by initiating 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.

Daniel Cameron

Attorney General

/s/ Matthew Ray

Matthew Ray

Assistant Attorney General

LLM Summary

The decision addresses an appeal by Mary Talbott regarding an open records request submitted to a University. The University failed to respond within the statutory five business day period, violating the Open Records Act. Although the University later claimed to have provided all responsive documents, the Appellant expressed uncertainty about the completeness of these documents. The Attorney General's office, citing precedent, stated it cannot resolve the factual dispute about whether all requested records were provided. The decision concludes that the factual dispute remains unresolved and informs the Appellant of the right to appeal the decision in circuit court.

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