24-ORD-249
November 26, 2024
In re: Brian Halloran/City of Covington
Summary: The City of Covington (“the City”) violated the Open Records
Act (“the Act”) when it delayed access to a record without initially
notifying the requester of the earliest date on which records would be
available. On appeal, the City demonstrated that its delay was
reasonable.
Open Records Decision
On April 25, 2024, Brian Halloran (“the Appellant”) submitted a request to the
City seeking: (1) all records or communications related to four specific entities; (2) all
records or communications between any City employee or elected official that relate
to or mention fourteen specific individuals or entities; and (3) any records related to
certain expenditures that had been described by the City in its April 23, 2024, City
Commission meeting.1 Having received no further response from the City, the
Appellant resubmitted his request on August 28, 2024. In response, on September 3,
2024, the City stated that over 30,000 emails are responsive to the Appellant’s
request, and it would take at least six months to review responsive emails, make
necessary redactions, and provide responsive records. The City further invited the
Appellant to modify his request to reduce the scope of responsive records. On
September 19, 2024, the City informed the Appellant that, even with his
modifications, over 33,000 emails responsive to part one of the request exist and that
it was still determining the number of records responsive to part two of the request.
Because of the size of the request, the City stated that the request would be completed
in rolling batches on or before April 30, 2025. This appeal followed.
On appeal, the City claims it did not receive the Appellant’s request when it
was originally submitted on April 25, 2024. 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
1
Each request was limited to the previous four years.request, within the five (5) day period, of its decision.” KRS 61.880(1) (emphasis
added). Here, the City claims it did not receive the Appellant’s request until August
28, 2024. The Office cannot resolve factual disputes, such as whether a public agency
actually received a request. See, e.g., 23-ORD-071; 23-ORD-005; 22-ORD-216; 22-
ORD-148; 22-ORD-125; 22-ORD-100; 22-ORD-051; 21-ORD-163. Thus, the Office
cannot find the City violated the Act when it did not respond to a request it claims it
did not receive.
Turning to the City’s September 3, 2024, response, 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). A public agency that
invokes KRS 61.872(5) to delay access to responsive records must also notify the
requester of the earliest date on which the records will be available, and provide a
detailed explanation for the cause of the delay. Here, the City responded to the
Appellant’s request within five business days but stated only that a large number of
responsive records existed and invited the Appellant to modify his request. The City
neither cited KRS 61.872(5), nor asserted that records were “in active use, in storage,
or not otherwise available.” Further, the City did not notify the Appellant of the
earliest date on which the records would be available. In fact, the City did not state
the earliest date on which the records would be available until September 19, 2024.2
Thus, the City’s initial response violated the Act.
If a requester believes the agency’s delay is unreasonable, he or she may seek
the Attorney General’s review by alleging the agency subverted the intent of the Act
“past
the
five
(5)
day
period
described
in”
KRS
61.880(1).
See
KRS 61.880(4). In determining how much delay is reasonable, the Office has
considered the number of records the requester has sought, the location of the records,
and the content of the records. See e.g., 22-ORD-176; 01-ORD-140; OAG 92-117.
Weighing these factors is a fact-intensive analysis. For example, this Office has found
that a four-month delay to provide 5,000 emails for inspection was not reasonable
under the facts presented. See, e.g., 21-ORD-045. However, the Office has also found
that a six-month delay was reasonable to review 22,000 emails for nonexempt
information. See, e.g., 12-ORD-097. Further, the Office has recognized that a public
agency may show its good faith to respond to a request that implicates many records
by releasing those records in batches on a rolling basis. See, e.g., 21-ORD-045.
Ultimately, the agency carries the burden of proof to sustain its actions.
KRS 61.880(2)(c).
2
The City explains that it had tried to reach the Appellant by phone to discuss his request and did
not reach him until September 19. However, that does not obviate the Act’s requirement that an
agency state, in writing, whether it will grant or deny a request or invoke KRS 61.872(5) within five
business days.On appeal, the City justifies its delay by describing the number of responsive
records, where those records were held, and the exemptions applicable to those
records. To start, the City explains that it possesses 39,622 records responsive to the
Appellant’s request. Some of those emails include attachments, but the City is unable
to determine exactly how many additional attachments it possesses. The City also
explains that records had to be obtained from its cloud archiving service and “it took
time to search for responsive emails in the archive, time to export the compressed
messages . . . into a format for review, and time to download the exported email files
so City staff could begin processing the request.” The City further describes the
number of records that might be exempt or require redaction. According to the City,
roughly 4,000 emails will need to be redacted because they contain “centralized
criminal history records.” Moreover, roughly 6,000 emails will require attorney
review because they may be exempt under several different exemptions under the
Act.3 The City claims it will need to review all 39,622 emails and attachment to
identify which materials are nonexempt, which must be redacted, and which are
entirely exempt.
In sum, the City has adequately described the large number of records
responsive to the Appellant’s request and the records’ location in its cloud archiving
system. Further, the City has precisely stated that, at a minimum, roughly one out
of every four responsive records will either be entirely exempt or contain some exempt
information necessitating redactions. The Office has previously determined that a
six-month delay was reasonable to review 22,000 emails for non-exempt information.
See, e.g., 12-ORD-097. Here, the Appellant seeks 17,000 more emails than the
appellant sought in 12-ORD-097, but the City has sought only one additional month
of delay. Moreover, the City has stated it will provide the Appellant with responsive
records in rolling batches, demonstrating its good faith. Thus, the Office does not find
the City’s delay to be unreasonable under these facts.
At bottom, the Office cannot resolve the factual dispute between the parties
regarding whether the City received the Appellant’s original request. But, based on
the facts and circumstances of this appeal, the Office does not find that the City’s
delay was unreasonable under the asserted facts. Rather, the City violated the Act
when it failed issue a timely response invoking KRS 61.872(5) and stating the earliest
date on which all responsive records would be available.
3
Specifically, the City states that these records may be exempt as “attorney-client communications,
preliminary drafts or notes, preliminary recommendations, and other items.”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
#433
Distributed to:
Brian P. Halloran
Susan Ellis
Sheree E. Weichold
David Davidson
Joseph U. Meyer