23-ORD-225
August 21, 2023
In re: Melanie Barker/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (the “Cabinet”)
violated the Open Records Act (“the Act”) when it failed to respond
properly to a request to inspect records within five business days and
when it denied the Appellant’s request for certain emails sent over a
seven-month period.
Open Records Decision
On June 9, 2023, Melanie Barker (“Appellant”) submitted to the Cabinet a
request to inspect emails about her and her two businesses, which four Cabinet
employees sent between July 2022 and January 2023. That same day, the Cabinet
acknowledged receipt of the request and stated it would take two weeks to respond.
On June 30, the Appellant asked when she would receive a response to her request
and the Cabinet stated it would respond “in the upcoming week.” On July 25, 2023,
having received no further response from the Cabinet, the Appellant initiated this
appeal.
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). Here, although the Cabinet responded to the request, it neither
granted nor denied the request within five business days. Instead, it stated it would
take two weeks to respond without specifying the earliest date on which the records
would be available or giving a detailed explanation for the cause of the delay. Rather,the Cabinet did not substantively respond to the Appellant’s request until after this
appeal was initiated. Accordingly, the Cabinet’s response did not comply with
KRS 61.872(5), and it therefore violated the Act.
On appeal, the Cabinet asserts it was concerned with contacting the Appellant
in light of a civil lawsuit she had filed against the Cabinet. The Office recognizes the
ethical obligations of attorneys to not engage in direct communications with adverse
parties represented by counsel regarding the subject matter of the representation.
See SCR 3.130(4.2). However, the rule does not prohibit an attorney from
communicating with a represented adverse party who initiated the communication if
the extent of the communication is for the sole purpose of informing the party that
the attorney will not communicate with him and will only speak to his retained
counsel. See id. at cmt. 4 (stating a lawyer having independent justification or legal
authorization for communicating with a represented person is permitted to do so). In
the context of requests to inspect records, the Act not only provides the “independent
justification or legal authorization” for an agency to respond to a plaintiff’s request,
but also requires the agency to respond within five business days of receiving the
request. KRS 61.880(1). Thus, when an agency engaged in litigation against a person
represented by counsel receives a request to inspect records pertaining to that
litigation, the agency must, at a minimum, respond to the request and inform the
plaintiff that her request is being denied, either because SCR 3.130(4.2) prevents
further communications with the plaintiff or because the records are otherwise
exempt. Simply put, a public agency may not ignore a request to inspect records even
if the requester is an adverse party in litigation and represented by counsel. See 23-
ORD-096 (holding that a Commonwealth’s Attorney could not ignore a request to
inspect records submitted by a criminal defendant he was prosecuting). Here, the
Cabinet does not dispute having received the Appellant’s request or otherwise claim
to have timely issued a response. Accordingly, the Cabinet did not comply with
KRS 61.880(1).1
The Cabinet further states on appeal that the Appellant has not provided
enough information to enable the Cabinet to locate responsive records. Specifically,
the Cabinet states, “to perform a search of employee [email] accounts” it needs “a date
range, the specific accounts to be searched, and keywords.” According to the Cabinet,
the Appellant provided subjects rather than keywords when she requested emails
about her and her two businesses. As such, the Cabinet asserts the Appellant has not
1
On appeal, the Cabinet claims it provided its response to the Appellant’s request directly to her
attorney on July 17, 2023.precisely described the records to be inspected and, citing 16-ORD-082, asserts that
“blanket requests for information on a particular subject need not be honored.”
Under the Act, a request must be “adequate for a reasonable person to
ascertain [its] nature and scope.” Commonwealth v. Chestnut, 255 S.W.3d 655, 661
(Ky. 2008). Under KRS 61.872(3)(b), “[t]he public agency shall mail copies of the
public records to a person . . . after he or she precisely describes the public records
which are readily available within the public agency.” A description is precise “if it
describes the records in definite, specific, and unequivocal terms.” 98-ORD-17
(internal quotation marks omitted). This standard may not be met when a request
does not “describe records by type, origin, county, or any identifier other than relation
to a subject.” 20-ORD-017 (quoting 13-ORD-077). In particular, requests for any and
all records “related to a broad and ill-defined topic” generally fail to precisely describe
the records. 22-ORD-182; see also, e.g., 21-ORD-034 (finding a request for any and all
records relating to “change of duties,” “freedom of speech,” or “usage of signs” did not
precisely describe the records); but see Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d
43, 48 n.2 (Ky. 2021) (holding a request was proper when it sought “all records
detailing [the] resignation” of a specific employee).
Here, the Cabinet argues it cannot ascertain the nature and scope of the
Appellant’s request because the Appellant requested emails about specific subjects
and she did not provide keywords to search. Specifically, the Cabinet explains that,
if it performed three searches which alternatively used the Appellant’s first name,
last name, or first and last name, each search would yield different results. Thus,
according to the Cabinet, the Appellant’s request cannot be performed without her
specifying keywords to be included in its search. However, the Appellant has not
requested records “related to a broad and ill-defined topic.” Rather, the Appellant
specified the types of records she sought, i.e., emails. She narrowed her request to
emails sent over a seven-month period, from July 2022 to January 2023. And she
narrowed the topic of her request to emails that discussed her or her two businesses.
Given all these limitations the Appellant placed on her request, the Office cannot
conclude the request related to a broad, ill-defined topic that would lead to an
incalculable number of potentially responsive records. See, e.g., 23-ORD-168, 23-
ORD-024, 23-ORD-006; 22-ORD-182. Accordingly, the Cabinet violated the Act when
it denied the Appellant’s request.
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 notifiedof 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
#331
Distributed to:
Melanie Barker
Elyssa S. Morris
David T. Lovely