24-ORD-181
August 21, 2024
In re: Charlie Rowland/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it failed to appropriately respond to
a request to inspect records. The University also violated the Act when
it did not respond to a request made under the Act.
Open Records Decision
Charlie Rowland (“Appellant”) submitted two requests to the University on
June 28 and July 12, 2024. The June 28 request sought five categories of records
related to the University’s neurosurgery program.1 On July 15, after a follow-up
email from the Appellant inquiring about the status of his request, the University
issued its first response to the June 28 request, stating it was “in receipt of your
request” and “will need beyond the five days to respond to your request.” The
Appellant’s July 12 request sought one category of records related to the same
committee.2 Having received no additional response by July 25, 2024, the Appellant
initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
1
Specifically, the June 28 request sought “All minutes of the Clinical Competency Committee from
July 1, 2022 to present”; “audio and/or video recordings” of graduate medical education interviews for
neurosurgery program conducted by a specific University employee in 2024; “[a]ll documents . . .
produced or maintained by” the same employee related to graduate medication education interviews
for the same program in 2024; and “[a]ll email correspondence sent or received” by two University
employees “from April 1, 2024 to present containing the phrase ‘neurosurgery’” or three individual’s
names. On July 12, the Appellant withdrew the subpart of his request related to email correspondence
from one of the specified University employees.
2
The July 12 request sought “[a]ll email correspondence sent or received” by another University
employee “from April 1, 2024 to present containing the phrase ‘neurosurgery’” or three individual’s
names.any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” 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, the University does not dispute that it failed to respond to the
Appellant’s June 28 request until July 15. Likewise, the University does not dispute
that it had not responded to the Appellant’s July 12 request when the appeal was
initiated on July 24. Moreover, regarding its July 15 response, the University only
stated that that it would “need beyond the five days to respond” to the request. This
response neither granted nor denied the Appellant’s request. Further, the
University’s July 15 response did not give a detailed explanation for the cause of the
delay or state the earliest date on which the records would be made available.
KRS 61.872(5). Therefore, the University violated the Act when it did not respond
appropriately to the Appellant’s June 28 request and when it did not respond at all
to the Appellant’s July 12 request.3
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.
3
On August 7, 2024, after this appeal was initiated, the University issued final responses to both
requests, granting them in part and producing redacted records. On August 14, just seven days before
the Office’s statutory deadline to issue its decision in this appeal, the Appellant objected to each portion
of the University’s final responses. Under KRS 61.880(2)(a), this Office’s mandate is to review the
request for records and the agency’s response to determine whether the agency violated the Act. In
finding the University’s initial response to the June 28 request was improper and the failure to respond
to the July 12 request violated KRS 61.880(1), the Office has carried out its mandate. The Office
declines to consider the new issues raised for the first time on appeal regarding the sufficiency of the
University’s final responses. See, e.g., 23-ORD-333 n.1; 22-ORD-200 n.2; 22-ORD-170 n.2; 22-ORD-142
n.3; 21-ORD-177 (stating the Office may decline to consider new issues raised by the parties’
subsequent correspondence on appeal because such matters encroach upon the Office’s statutory
deadline to issue a decision within 20 business days and suffer from incomplete briefing by the parties).
But the Appellant may initiate a separate appeal asking the Office to review the sufficiency of the
University’s final responses by providing the Office with a copy of his original requests and the
University’s final responses. See KRS 61.880(2)(a).Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#316
Distributed to:
Charlie Rowland
Amy R. Spagnuolo
William Thro