23-ORD-204
August 8, 2023
In re: Ronald Mitchell/Kentucky Board of Veterinary Examiners
Summary: The Kentucky Board of Veterinary Examiners (“the Board”)
violated the Open Records Act (“the Act”) when it delayed access to
records because it is understaffed.
Open Records Decision
On June 21, 2023, Ronald Mitchell (“Appellant”) submitted a request to the
Board to inspect “all correspondence and documents generated by either the Board
or” thirteen specific veterinarians “who were ordered to appear on September 29,
2022, regarding their failure to comply with [a specific policy], including the
correspondence that [was] intended to give notice of dismissal.” On June 27, 2023,
the Board responded, invoked KRS 61.872(5), and stated responsive records would be
available no later than September 7, 2023, because of its “current workload, backlogs,
[the] mandates for new programs[,] . . . and the fact that the board is currently
understaffed.” The Appellant then initiated this appeal, claiming the Board’s delay
was unreasonable.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny it and explain why.
KRS 61.880(1). Or, if responsive records are “in active use, in storage or not otherwise
available,” a public agency may delay access to them by stating the earliest date on
which they will be available and a detailed explanation of the cause of the delay.
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.Here, the Board cited KRS 61.872(5) but did not claim the records are in active
use, in storage, or unavailable. Instead, it stated it would not provide responsive
records until September 7, 2023, because of its “current workload, backlogs, [the]
mandates for new programs[,] . . . and the fact that the board is currently
understaffed.” However, the fact that an agency is understaffed or busy during a
particular time of year does not constitute a proper basis for delaying production of
the requested records. See, e.g., 22-ORD-257; 22-ORD-134; 22-ORD-133; 19-ORD-188
n.1. Thus, the Board violated the Act by delaying access to responsive records without
properly invoking KRS 61.872(5).1
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.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#308
1
On appeal, the Board argues the responsive records are more voluminous than the Appellant
claims, and it does not have enough staff to carry out all of its functions and to also respond to requests
to inspect records. The Board does not, however, quantify or estimate the number of potentially
responsive records. See, e.g., 21-ORD-176 (explaining the factors the Office considers when
determining whether any delay is reasonable, including most importantly, the number of responsive
records). The Board further argues it is now unable to search for responsive records because all of its
records became temporarily unavailable beginning on July 12, 2023, when they were put into storage
to facilitate movement from one office to another. Although the Board’s records may now be “in
storage,” KRS 61.872(5), they did not state that the records were in storage at the time it issued its
response on June 27, 2023, when it stated it required more than two months to provide responsive
records.Distributed to:
Ronald Mitchell, DVM
Michelle M. Shane
Mark R. Brengelman