24-ORD-235
November 8, 2024
In re: John Fritz/University of Kentucky
Summary: The University of Kentucky (“the University”) did not
violate the Open Records Act (“the Act”) when it could not provide
records that do not exist, when it denied requests for information, or
when it denied requests for copies of records that did not precisely
describe the public records requested. However, the University violated
the Act when it failed to make specific responses to requests that
precisely described the records, stating whether the records existed and,
if so, explaining its reasons for denying those requests.
Open Records Decision
On September 6, 2024, John Fritz (“the Appellant”), a former patient of the
University’s College of Dentistry student clinic, submitted a complex nine-part
request to the University for records and information related to the clinic. In the first
part of his request, the Appellant sought copies of communications between
September 1 and 6, 2024, “giving notice of final action of the [dental clinic] regarding
status of [certain] insurance programs.” The University responded that there were no
records responsive to that portion or any other portion of the request giving notice of
final action. The University denied the remaining eight parts of the request as
“unreasonably burdensome under” KRS 61.872(6) because they were “broad and
imprecise.” Additionally, the University denied the request under KRS 61.878(1)(i)
and (j) to the extent it sought “preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give notice of final action
of a public agency,” or “preliminary recommendations, and preliminary memoranda
in which opinions are expressed or policies formulated or recommended.” Finally, the
University denied the request due to attorney-client privilege under KRE 503 “to the
extent [it] seeks communications between the University’s attorneys and other
University officials seeking professional services from the attorneys, including
requests for advice and providing information necessary for the attorneys to
formulate legal advice.” This appeal followed.The Appellant claims the University improperly “lumped” the parts of his
request together into one denial instead of responding to each part separately. Here,
each part of the Appellant’s request will be analyzed independently.
In part 1 of his request, the Appellant requested certain communications
giving notice of final action “regarding status of” Medicare, Cigna, Delta Dental, and
Medicaid insurance. The University has denied that any such records exist. Once a
public agency states affirmatively that a record does not exist, the burden shifts to
the requester to present a prima facie case that the requested record does exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). A
requester’s bare assertion that an agency must possess requested records is
insufficient to establish a prima facie case that the agency actually possesses those
records. See, e.g., 22-ORD-040. Rather, to present a prima facie case that the agency
possesses or should possess the requested records, the requester must provide some
statute, regulation, or factual support for that contention. See, e.g., 21-ORD-177; 11-
ORD-074. Here, the Appellant provides no foundation for his belief that responsive
records exist. Because the Appellant has not established a prima facie case that these
records exist, the University did not violate the Act with regard to part 1 of the
request.
In parts 2 and 3 of his request, the Appellant requested certain “statistical
information” regarding “the total number of dental patients seen” during specific time
periods and how many patients used Medicare or Medicaid. The Act, however, does
not require public agencies to fulfill requests for information, but only requests for
records. See KRS 61.872(2)(a) (a request to inspect records must include, among other
things, a description of “the records to be inspected”); see also Dep’t of Revenue v.
Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The [Act] does not dictate that public
agencies must gather and supply information not regularly kept as part of [their]
records.”). Here, the Appellant requested only “information” regarding numbers of
dental patients. On appeal, the University asserts it “does not have records with that
information.” Furthermore, these parts of the Appellant’s request did not describe
any public records he wished to inspect. Accordingly, the University did not violate
the Act when it did not provide the information requested in parts 2 and 3. See, e.g.,
24-ORD-195.
In parts 4 and 5 of his request, the Appellant requested copies of certain
communications “by and between” certain persons “and their agents and assigns
including but not limited to other employees and third-party contractors.” Those
persons include five named University employees; “UK Healthcare’s agents and
assigns (including but not limited to the employee(s) serving as Manager of the dental
practices) involved in the decision [to] terminate Medicare insurance”; “[e]lected
officials including but not limited to” the Governor, state legislators, and members of
Kentucky’s congressional delegation; and “[s]takeholders affected and stakeholdersinterested in termination of Medicare insurance programs in [the University’s] dental
services,” such as “employees, students and patients invited to give feedback.” For
September 1, 2023, through September 1, 2024, the Appellant requested
communications “regarding termination of Medicare insurance effective on or about
August of 2024.” For May 1, 2024, through September 6, 2024, he requested
communications regarding the Appellant himself, “Journal Kentucky.com,” and
“articles published on “Journal Kentucky.com.”
The University argues that this request is unduly burdensome because it does
not precisely describe the records sought and would require the University to search
not only its emails and electronic records but innumerable physical records to
determine whether any responsive documents existed. Furthermore, the University
points out that the Appellant’s request expressly defines “communications” to include
“preliminary drafts” and “notes,” which are exempt from disclosure under
KRS 61.878(1)(i), as well as “preliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies formulated or recommended,”
which are exempt under KRS 61.878(1)(j). Finally, the University notes that any
confidential communications between an attorney and client to facilitate the
rendition of professional legal services would be privileged under KRE 503.
When a person requests copies of public records under the Act, “[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.”
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).
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.
Here, parts 4 and 5 of the Appellant’s request describe the records by various
types (“communications . . . including, but not limited to email, letters, notice of final
action, request for proposals, request for information, invitation for stakeholder
participation/feedback, messages, preliminary drafts, notes, memoranda, and
correspondence”). Moreover, the Appellant limited his request to specific time frames,
and the request does not relate to ill-defined topics. However, the class of personswhose communications the Appellant seeks is ill-defined. For example, it
encompasses not only five University employees, but a vague class of “agents and
assigns,” which could include but is “not limited to” any “other employees and third-
party contractors.” The definition of “UK Healthcare’s agents and assigns” is
similarly vague, as are the unlimited class of “elected officials” and the undefined
class described as “stakeholders.” Under the Act, a “requester is required to describe
the records he or she seeks so as to make locating them reasonably possible.” City of
Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 855 (Ky. 2013). According to its
website, the University employs “more than 12,000 staff and 2,000 faculty.”1 Given
the size of the University and the broad scope of his request, the Appellant has not
“precisely describe[d] the public records which are readily available within the public
agency,” as required by KRS 61.872(3)(b). Accordingly, the University did not violate
the Act when it denied parts 4 and 5 of the request.
In part 6 of his request, the Appellant sought “UK Healthcare College of
Dentistry Student Clinic policies, procedures, regulations and rules including but not
limited to ‘Governing Regulations,’ ‘Administrative Regulations,’ and ‘Kentucky
Administrative Regulations (KAR)’ regarding dismissal of a patient [from] the
practice clinic and denial of access to care” between May 1 and September 6, 2024.
The University has not specifically addressed this part of the request, either in its
initial response or in its response to the appeal. A public agency cannot simply ignore
portions of a request. See, e.g., 21-ORD-090. Furthermore, this portion of the request
precisely describes the records the Appellant is seeking as “policies, procedures,
regulations and rules . . . regarding dismissal of a patient” from the student clinic.
“Either the [University] has [such records] or it does not.” 23-ORD-335. If no such
records exist, the University must affirmatively so state in its response to the request.
See Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 867 (Ky. App. 2021); see also 20-ORD-041
(finding a public agency has a “duty to inform the requester in clear terms that it
[does] not have the records”). Otherwise, the University has five business days to
provide the record or to deny the request and explain why. KRS 61.880(1). Moreover,
if the University has the records described, they are clearly neither preliminary
documents
under
KRS
61.878(1)(i)
or
(j)
nor
privileged
attorney-client
communications under KRE 503. Therefore, the University violated the Act when it
failed to explain its denial of part 6 of the Appellant’s request.
In part 7 of his request, the Appellant sought “communications” between May
1 and September 6, 2024, “(including but not limited to email, letters, notice of final
action and correspondence) regarding dismissing” the Appellant as a patient of the
dental clinic “by and between” certain persons “and their agents and assigns.” Here,
the Appellant has precisely described the requested records by type, date, and a
clearly-defined subject matter to which they relate. Moreover, the class of persons is
limited to two named University employees and the “UK Healthcare College of
1
See https://www.uky.edu/faculty-staff/ (last accessed November 8, 2024).Dentistry Student Dental Clinic’s agents and assigns including but not limited to the
employee(s) serving at [sic] Manager of that dental practice.”2 Under the Act, the
public agency “is the party responsible for ascertaining the location of responsive
records or the personnel who may possess them.” 24-ORD-089. Here, to fulfill its duty
under the Act, the University only needs to make an inquiry to the two named
employees and staff members of the dental clinic who would have been involved in a
decision to dismiss the Appellant as a patient. However, the University admits it still
“has not determined what records are potentially responsive” to the Appellant’s
request. Because part 7 of the request precisely described the records as required by
KRS 61.872(3)(b), the University was required to conduct a reasonable search for
responsive records. Only after the responsive records are identified can it be
determined whether any potential exemptions apply to those records. See, e.g., 24-
ORD-180. Therefore, the University violated the Act when it denied part 7 of the
request without ascertaining what responsive records existed.
In part 8 of his request, the Appellant sought a “UK Information Technology
list of” internet protocol (“IP”) addresses used by the dental clinic, two named
university employees, the University’s Media Relations personnel, the University’s
Office of Legal Counsel, “and their agents and assigns.” This request “precisely
describes” the requested record as required by KRS 61.872(3)(b). But the University
failed to address this specific portion of the request by stating whether such a list
exists and, if so, on what basis it is specifically exempt from disclosure. Thus, the
University violated the Act.
Finally, in part 9 of his request, the Appellant sought “a copy of the
authorization, directive, order, and communication directing that” the Appellant be
dismissed as a patient of the dental clinic, along with “a copy of the certified letter
[containing] a notice of final action [to that effect] addressed to” the Appellant and
the “postal receipt and log and ledger recording the existence and mailing of the
items.” Because the University has denied that any “notice of final action” exists with
regard to any part of the Appellant’s request, it has implicitly denied that any
certified letter exists containing such a notice. The Appellant admits he “received no
such notice” but states he was told of its existence by an unidentified person. This
assertion is insufficient to establish a prima facie case that the notice exists.
However, the University failed to respond specifically to the Appellant’s request for
an “authorization, directive, order [or] communication directing” that he be dismissed
as a patient. By failing to state whether such a record exists and, if so, on what basis
it withheld that specific record, the University violated the Act.
As to the Appellant’s request considered as a whole, the University claims the
Appellant’s request “places an unreasonable burden” under KRS 61.872(6) because of
2
The Appellant does not include an all-encompassing definition of “agents and assigns” as he does
in parts 4 and 5 of the request.its broad scope and lack of a precise description. “However, refusal under this section
shall be sustained by clear and convincing evidence.” KRS 61.872(6). Here, the
University properly denied parts 4 and 5 of the request because they did not precisely
describe the records sought. As to parts 6, 7, and 9 of the request, however, the
University must meet the standard of clear and convincing evidence to show
unreasonable burden.
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., 24-ORD-152. Here, the University
states it “has not determined what records are potentially responsive.” Thus, the
number and nature of the records implicated by parts 6, 7, and 9 of the Appellant’s
request are unknown. Nevertheless, the University argues it is unduly burdensome
to redact the records, as required by KRS 61.878(4), because they may contain
material that is exempt from disclosure under the Family Educational Rights and
Privacy Act (“FERPA”), preliminary drafts and notes that are exempt under KRS
61.878(1)(i), preliminary recommendations and policy memoranda that are exempt
under KRS 61.878(1)(j), and attorney-client communications that are privileged
under KRE 503. However, because the University has not yet determined what
records exist that are potentially responsive to the Appellant’s request, the Office is
unable to determine whether any potential exemptions apply to the requested
records. As to the University’s argument under KRS 61.872(6), the University has
not shown by clear and convincing evidence that parts 6, 7, and 9 of the Appellant’s
request impose an unreasonable burden on the University.
In sum, the University did not violate the Act when it denied parts 1 through
5 of the Appellant’s request. The University violated the Act when it failed to make
specific responses to parts 6 through 9 of the request.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#405
Distribution:
Mr. John Fritz
William E. Thro, Esq.
Ms. Amy R. Spagnuolo