24-ORD-199
September 17, 2024
In re: Mark Alsip/Northern Kentucky Convention and Visitors Bureau
Summary: The Northern Kentucky Convention and Visitors Bureau
(the “Bureau”) violated the Open Records Act (“the Act”) when it failed
to respond to a request made under the Act within five business days.
The Bureau violated the Act when it denied the first part of the request
as unreasonably burdensome. But the Bureau did not violate the Act
when it denied the second part of the request that did not sufficiently
describe the public records sought.
Open Records Decision
On May 20, 2024, Mark Alsip (“Appellant”) submitted a request to the Bureau
for “copies of all correspondence, both email and paper, between” the Bureau and 13
named individuals. The Appellant also requested emails between the Bureau and all
members of eleven “Faith Trail sites.” On June 17, 2024, the Bureau confirmed
receipt of his request and explained that it was “working on a response and will have
that to [him] within the next week.” On August 19, 2024, having received no further
response from the Bureau, 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 the request and explain why.
KRS 61.880(1). Here, the Bureau received a request from the Appellant on June 17,
2024, and its response did not grant the request or deny it and explain why.1 The
1
The Bureau’s June 17 response stated it was “working on a response and will have that to [him]
within the next week,” but it did not invoke KRS 61.872(5) to delay the Appellant’s access to the
records he requested. A public agency may also delay access to responsive records beyond five business
days if such records are “in active use, storage, or not otherwise available.” KRS 61.872(5).Bureau does not dispute it failed to issue a timely response to the Appellant’s request.
As a result, the Bureau violated the Act.
On appeal, the Bureau now denies the Appellant’s request and asserts that it
is “vague, overly broad, and does not provide enough key words or a specific time
frame to narrow the results to a manageable amount of documents for [it] to properly
review” since it “produced 8,576 potentially responsive documents.” The Bureau
argues the Appellant’s request for “all correspondence, both email and paper” from
13 individuals did not precisely describe the records to be inspected or give a sufficient
enough description to “yield a manageable result” as required under KRS 61.872(3)(b)
and that “many of the requested records would be subject to KRS 61.878(1)(l)” and
exempt from inspection.
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
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). 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, 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).
Here, regarding the first portion of the Appellant’s request, he did not seek
“any-and-all records” related to a broad and ill-defined topic. Rather, he sought
communications between 13 individuals identified by email address and the bureau.
“Correspondence” is not an excessively vague description, as “the common and
ordinary meaning of ‘correspondence’ is ‘communication by letters or email,’ or ‘the
letters or emails exchanged.’” 22-ORD-255. Thus, a reasonable person can determine
the nature of a request for “correspondence.” Further, the Office has previously found
that a request for all emails sent to the agency’s 30 employees from three individuals
and eleven specific email addresses was not unduly vague. See 23-ORD-230. Here,
the first portion of the request is sufficiently specific for the Bureau to conduct the
search the Act requires. Thus, the Bureau violated the Act when it denied the first
portion of the Appellant’s request under KRS 61.872(3)(b).The second part of the Appellant’s request must be analyzed differently. That
part of the request sought emails and messages between the Bureau and all members
of eleven “Faith Trail sites.” Unlike the first part of the request, the Appellant has
not specified any specific individuals whose correspondence he seeks. Rather, he
identifies eleven entities and seeks any correspondence with any of their members.
Further, this part of the request is not limited by temporal scope or by topic or
keyword. Thus, the Bureau did not violate the Act when it denied the second part of
the Appellant’s request.
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
catalog its records in a manner that will permit it to query keywords mentioned in
the request. See, e.g., 96-ORD-042 (finding that it would 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), chances are higher
that the agency is incapable of searching its records using the broad and ill-defined
keywords used in the request.
“The obvious fact that complying with an open records request will consume
both time and manpower is, standing alone, not sufficiently clear and convincing
evidence of an unreasonable burden.” Commonwealth v. Chestnut, 205 S.W.3d 655,
665 (Ky. 2008). Rather, an agency relying on KRS 61.872(6) “must support its claim
with the facts and evidence, such as the volume of responsive records, the difficulty
in locating or accessing the records, the amount of time that complying with the
request would require, or any other specific and relevant facts indicating that
compliance with the request would actually impose an unreasonable burden.” 20-
ORD-008. Here, the Bureau states it located “8,576 potentially responsive
documents” based on the Appellant’s query. Although the number of records at issue
is not the only factor the Office considers, it is the most important one. See, e.g., 22-
ORD-182. The Office has previously found that searching and sorting through 5,000
emails to separate exempt emails from nonexempt emails was not an unreasonableburden, when it was not clear the emails contained information that was required to
remain confidential by law. See, e.g., 22-ORD-255; 24-ORD-008 (finding the agency
had “not sustained by clear and convincing evidence that” reviewing 2,607 emails for
exempt material placed “an unreasonable burden on the agency”). However, because
the Office agrees that the second part of the Appellant’s request did not precisely
describe records to be inspected, it is not clear whether that number remains
accurate.
Further, the only potential exemption the Bureau identifies is KRS 61.878(1)(l),
which operates in tandem with KRE 503 to exclude from inspection public records
protected by the attorney-client privilege. Hahn v. Univ. of Louisville, 80 S.W.3d 771
(Ky. App. 2001). However, when a party invokes the attorney-client privilege to shield
documents in litigation, that party carries the burden of proof. That is because “broad
claims of ‘privilege’ are disfavored when balanced against the need for litigants to
have access to relevant or material evidence.” Haney v. Yates, 40 S.W.3d 352, 355 (Ky.
2000) (quoting Meenach v. Gen. Motors Corp., 891 S.W.2d 398, 402 (Ky. 1995)). So
long as the public agency provides a sufficient description of the records it has
withheld under the privilege in a manner that allows the requester to assess the
propriety of the agency’s claims, then the public agency will have discharged its duty.
See City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848–49 (Ky. 2013)
(providing that the agency’s “proof may and often will include an outline, catalogue,
or index of responsive records and an affidavit by a qualified person describing the
contents of withheld records and explaining why they were withheld”).
But here, the Bureau states only that the Appellant’s request “includes [an]
overwhelming amount of responsive communications made for the purposes of
securing professional legal opinions and advice” because the Bureau has recently
received threats of litigation. But seven of the eleven email addresses are employees
in city tourism departments or the official tourism email address of the cities. Thus,
it is not clear how an “overwhelming amount of responsive communications” are
exempted by KRE 503 because the majority of identified email addresses are
associated with city tourism departments. Therefore, the Bureau has not met its
burden in invoking the attorney-client privilege.
Thus, because it is not clear that “8,576 potentially responsive documents” are
implicated by the first part of the Appellant’s request and because the Bureau has
not met its burden in invoking the attorney-client privilege, the Bureau has not met
its burden under KRS 61.872(6). While the Bureau may have been able to sustain the
need to delay access to those records under KRS 61.872(5), it certainly has notsustained by clear and convincing evidence that the task places such an unreasonable
burden on the agency that the request could be fully denied under KRS 61.872(6).
Accordingly, the Department has not sustained by clear and convincing evidence that
the Appellant’s request places an unreasonable burden on it.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#348
Distributed to:
Mark Alsip
Mary Watkins
Sarah Cameron