22-ORD-221
October 20, 2022
In re: David Costas/City of Park Hills
Summary: The City of Park Hills (“the City”) violated the Open
Records Act (“the Act”) when it denied a request as vague and unduly
burdensome under KRS 61.872(6).
Open Records Decision
David Costas (“the Appellant”) submitted a request to the City for every email
or text message sent or received by the Mayor between January 1, 2022 and
September 24, 2022. In a timely response, the City denied the request under KRS
61.872(6) because it was “not a properly framed question” and was “overbroad” and
“too vague.” This appeal followed.
When a person seeks to inspect public records by receiving copies in the mail,
the person must “precisely describe” the records to be inspected. KRS 61.872(3)(b).
And a public agency may deny a request to inspect records under KRS 61.872(6) “[i]f
the application places an unreasonable burden in producing public records” on the
agency. However, an agency denying a request under KRS 61.872(6) must support its
denial with “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 catalogue its records in a manner that will permit
it to query keywords mentioned in the request. See, e.g., 96-ORD-042 (finding that itwould place an unreasonable burden on the agency to manually review thousands of
files for the requested keyword to determine whether such records were responsive).
When a request does not “precisely describe” the records to be inspected, KRS
61.872(3)(b), the chances are higher that the agency is incapable of searching its
records using the broad and ill-defined keywords used in the request.
On appeal, the City continues to assert that the request is unreasonably
burdensome because the request is “vague” and does not precisely describe the
records sought. The Office has previously opined that requests seeking “any-and-all
records” related to broad topics place unreasonable burdens on the responding
agencies. See, e.g., 22-ORD-054; 21-ORD-126; 17-ORD177. However, in those
decisions, the requests sought all documents (including emails or other
correspondence) relating to broad and ill-defined topics. When a request seeks “any-
and-all records” related to a broad and ill-defined topic, such as “documents
evidencing that . . . the historical horse racing games . . . are legal under Kentucky
law,” 17-ORD-177, such a request could lead to an incalculable number of records.
Although the Office has found requests for “any-and-all records” to be unreasonably
burdensome in various circumstances, the agency always carries the burden of
proving that any particular “any-and-all” type of request actually places an
unreasonable burden on the agency. KRS 61.872(6). The City has not carried that
burden here. See, e.g., 22-ORD-213 (finding an agency violated the Act for denying as
“vague” a request for all emails sent to or from an employee about a private individual
because the request was not vague).
Here, the City has not articulated, or estimated, the number of potential
records implicated by the Appellant’s request. Although the number of records
implicated is not the only factor the Office considers when determining whether a
request is unreasonably burdensome, it is the most important factor to be considered.
See, e.g., 22-ORD-176 (finding an agency’s response to a request to be inadequate
when it failed to estimate the number of records implicated by the request, but
holding that reviewing and redacting over 16,000 Microsoft Teams messages would
be unreasonably burdensome). Nor has the agency claimed that responsive records
are required to remain confidential. Reviewing and redacting large numbers of
records to comply with various confidentiality laws adds to the burden any request
might place on agency. Thus, neither the number of records at issue nor the fact they
must be redacted, in isolation, is dispositive of whether a request is unreasonably
burdensome. But the combination of these factors, as well as the other factors
discussed above, are what makes “any-and-all” types of requests relating to broad and
ill-defined topics unreasonably burdensome under KRS 61.872(6). An agency does not
carry its burden (that of “clear and convincing evidence”) merely by citing the Office’s
prior decisions that found “any-and-all” types of requests were unreasonably
burdensome. Rather, an agency’s response must provide sufficient information about
the potential number of responsive records, whether such records are in electronic orphysical format, whether such records require redaction to comply with law, and
whether the agency is capable of searching for records based on the request as framed.
The City has not provided this information, and thus, it has not carried its burden
under KRS 61.872(6). The City, therefore, violated the Act.
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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#372
Distributed to:
David Costas
Daniel R. Braun
Julie A. Alig