24-ORD-207
September 25, 2024
In re: Thomas Law Offices/Kentucky Board of Medical Licensure
Summary: The Kentucky Board of Medical Licensure (“the Board”)
violated the Open Record Act (“the Act”) when it failed to appropriately
respond to a request to inspect records. The Board also violated the Act,
within the meaning of KRS 61.880(4), when it required a request to be
resubmitted using a specific form. The Board did not violate the Act
when it did not provide records it cannot locate based on the description
provided in the request.
Open Records Decision
On August 6, 2024, Skyler Thompson, on behalf of Thomas Law Offices
(“Appellant”), submitted a request to the Board for the “Kentucky Board of Medical
Licensure file of” a specific doctor. The Appellant submitted the request on a form
created by the Office of the Inspector General’s Division of Healthcare. That same
day, the Board instructed the Appellant to resubmit the request using the
standardized form developed by the Attorney General. Subsequently, on August 21,
2024, the Appellant asked if the Board had received its August 6, 2024, request. That
same day, the Board stated that it had not,1 and the Appellant resubmitted its
request “for the entire licensure file of” the same doctor. In response, the Board denied
the request, stating it was “too vague and imprecise.” This appeal followed.
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
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.” Further,
under KRS 61.872(2)(c), “[a] public agency shall not require the use of any particular
1
The Board explains that, because it had instructed the Appellant to resubmit its request using the
Attorney General’s form, it believed the Appellant’s August 21 inquiry referred to a resubmitted
request using that form.form for the submission of an open records request.” This Office has also found that
a public agency misdirects requesters, within the meaning of KRS 61.880(4), when
the agency requires the use of a particular online form to submit requests under the
Act. See, e.g., 22-ORD-167.
Here, the Board’s initial response neither granted nor denied the Appellant’s
request. Moreover, that response required the Appellant to resubmit the request
using the Office’s standardized form. See KRS 61.876(4). Accordingly, the Board
violated the Act when it did not grant or deny the Appellant’s August 6 request.
Further, the Board subverted the Act, within the meaning of KRS 61.880(4), and
when it misdirected the Appellant to a particular form it was not required to use.2
Under the Act, a public agency’s custodian of records “may require a written
application . . . describing the records to be inspected.” KRS 61.872(2)(a). A request
to inspect public records must describe those records in a manner “adequate for a
reasonable person to ascertain the nature and scope of [the] request.” Commonwealth
v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). If the request is for copies of public
records, it must “precisely describe[ ] the public records which are readily available
within the public agency.” KRS 61.872(3)(b). A description is precise “if it describes
the records in definite, specific, and unequivocal terms.” 98-ORD-17 (internal
quotation marks omitted).
Here, the Appellant sought “the entire licensure file” of a doctor it identified
by last name only. But the Board claims it licenses “at least eight” individuals “with
the last name” specified by the requester. Thus, the Board explains it cannot
determine which records the Appellant seeks. When the requester does not provide
sufficient information to enable the agency to locate the requested records through a
reasonable effort, the description fails to comply with KRS 61.872(3)(b). See, e.g., 24-
ORD-151; 16-ORD-242; 14-ORD-173; 13-ORD-077; 02-ORD-196. Here, the Board can
only guess at which records are responsive to the Appellant’s request. Such a request
does not describe “records in definite, specific, and unequivocal terms.” 98-ORD-17.
Accordingly, the Board did not violate the Act when it denied a request as “too vague
and imprecise” to locate responsive records.
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
2
The Board claims the Appellant’s August 6 request was not intended for it because it was
submitted using a form created to request records possessed by the Office of the Inspector General.
But the Appellant’s request identified the Board as the custodian of the requested records. Moreover,
the Board did not direct the Appellant to the Office of the Inspector General or attempt to confirm
whether the Appellant intended to request its records. Instead, the Board required the use of a
particular form.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
#370
Distributed to:
Nick Horne
Tyra Johnson
Michael Rodman
Leanne Diakov