24-ORD-209
September 26, 2024
In re: Blake Gober/Pulaski County School District
Summary: The Pulaski County School District (“the District”) did not
violate the Open Records Act (“the Act”) when it determined a request
posed an unreasonable burden under KRS 61.872(6).
Open Records Decision
Blake Gober (“Appellant”), submitted a request to the District for all internal
and external communications “between, from[,] or to [District] staff [or] the board”
that reference the “Education Opportunities Constitutional Amendment (Ballot
Question 2)”; “Amendment 2”; “Question 2”; “Yes on 2” or “No on 2.” In response, the
District denied the request as unreasonably burdensome under KRS 61.872(6)
because the request “did not identify with ‘reasonably particularity’ the documents
that [he] wish[ed] to review.” The District explained that, as written, the request
sought 18,473 emails from 2,123 District employees. The District also stated that the
requested records would need to be reviewed and redacted for exempt information
before they could be produced.1 Finally, the District invited the Appellant to narrow
the parameters of his request, stating it would work with him to fulfill such a
subsequent request. This appeal followed.
Under KRS 61.872(6), a public agency may deny a request to inspect records
“[i]f the application places an unreasonable burden in producing public records or if
the custodian has reason to believe that repeated requests are intended to disrupt
other essential functions of the public agency.” However, an agency must
substantiate its denial “by clear and convincing evidence.” Id. When determining
whether a particular request places an unreasonable burden on an agency, the Office
1
Specifically, the District stated the requested records are potentially exempt under
KRS 61.878(1)(a), (j), (k), and (l); the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C.
§ 1232g; the Kentucky Family Education Rights and Privacy Act (“KyFERPA”), KRS 160.700 to
160.730; and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).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 a request implicating thousands of physical
files pertaining to nursing facilities to be 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), the chances are higher that the agency is incapable of searching its
records using the broad and ill-defined keywords used in the request.
To start, the District claims the Appellant has not precisely described the
records to be inspected. 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 also 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). A
request that does not precisely describe the records “places an unreasonable burden
on the agency to produce often incalculable numbers of widely dispersed and ill-
defined public records.” 99-ORD-14.
In 23-ORD-006, the Office found a request for correspondence to or from
certain named individuals within a specific time frame and containing certain
keywords “precisely describe[d]” the records requested. But here, the Appellant has
not narrowed his request to particular individuals, nor has he specified a time frame
for the records he seeks. Instead, the Appellant seeks all communications that have
ever been sent by, to, or between all District employees. Further, although the
Appellant did provide responsive keywords, some of those keywords expand, rather
than narrow, the scope of responsive records. The District explains that
communications with the phrase “Amendment 2” includes emails concerning the
Second Amendment of the United States Constitution. Such emails are common in
the context of “instruction on US History, the US Constitution, and current events.”
Similarly, communications with the phrase “Question 2” includes emails discussing
“Question 2” in the context of student homework, tests, or other school-relatedactivities. Accordingly, the Office agrees that the Appellant has not precisely
described the records he seeks.
Moreover, the District explains, because of the Appellant’s request for emails
concerning “Question 2,” responsive records include “education assessment related
questions . . . among staff or between students and staff” that must be examined
under the mandatory privacy provisions of FERPA and KyFERPA. Review of records
for redaction under FERPA requires “personal knowledge [that] precludes delegation
of that function to different personnel.” 15-ORD-015. In 14-ORD-109, a school system
sustained its denial under KRS 61.872(6) where the request implicated over 6,200
emails subject to mandatory review and redaction under FERPA and KyFERPA. See
also 11-ORD-173 (involving over 8,500 emails subject to redaction under FERPA and
KyFERPA).2 Similarly, the District here has carried its burden under KRS 61.872(6)
that reviewing over 18,000 responsive emails and their attachments places an
unreasonable burden on the agency.
In sum, the Appellant has failed to precisely describe the records he seeks.
Further, the District has explained why the requested records are subject to
mandatory review and redaction under FERPA and KyFERPA. Accordingly, the
District did not violate 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 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
2
In addition, the District explains that it is likely many emails may contain privileged
communications with its attorney in the course of the attorney’s rendition of legal services, which
would also be exempt from inspection. See KRE 503; KRS 61.878(1)(l); see also 22-ORD-174 (discussing
the attorney-client privilege).#366
Distributed to:
TJ Roberts
Cindy Price
Larry G. Bryson