24-ORD-254
November 26, 2024
In re: Vivian Miles/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) subverted the intent of
the Open Records Act (“the Act”), within the meaning of KRS 61.880(4),
by delaying access to requested records beyond five business days from
receipt of the request. KSP also violated the Act when it denied a request
as too imprecise under KRS 61.872(3)(b).
Open Records Decision
On October 4, 2024, Vivian Miles (“the Appellant”) requested “[e]mails and/or
correspondence between” two KSP employees from June 22 to July 30, 2019, and
“emails
and/or
correspondence
from/to/cc”
the
same
two
employees
“related/regarding: Item #2019 0085 or SAK # 2019 0085, Container A, Inventory,
Database Sample, Data Bank, Rapid Testing.” In its initial response, KSP stated it
needed “additional time to comply” with the request because, “[d]ue to the storage
location of these records, they are not immediately available,” but after a search the
records would “be released to” the Appellant “upon completion of the review.” KSP
gave no date by which the records would be made available.
On October 25, 2024, KSP informed the Appellant it had located
“approximately 958 records” that were “potentially responsive” to the request.
However, KSP proceeded to deny the request on the grounds that it did not “precisely
describe” the records as required by KRS 61.872(3)(b). This appeal followed.
Under KRS 61.880(4), a person may petition the Attorney General to review
an agency’s action if the “person feels the intent of [the Act] is being subverted by an
agency short of denial of inspection, including . . . delay past the five (5) day period
described in” KRS 61.880(1). That statute requires a public agency to grant or deny
a request for records within five business days of receiving it, unless the agency
properly invokes KRS 61.872(5) to delay inspection of records that are “in active use,
in storage or not otherwise available.” When a public agency delays inspection of
records under KRS 61.872(5), it must also give “a detailed explanation of the cause”for the delay and notify the requester of the “earliest date on which [records] will be
available for inspection.”
Here, although KSP referred vaguely to “the storage location of these records,”
it did not give a detailed explanation for why they were “not immediately available.”
At all times, a public agency must substantiate the need for any delay and that it is
acting in good faith. See KRS 61.880(2)(c) (placing the burden on the public agency to
substantiate its actions); see also 21-ORD-211; 21-ORD-045. Because KSP did not
provide a “detailed explanation of the cause” for delay, it did not meet its burden of
establishing that the records were “in active use, storage or not otherwise available”
or that delaying access to the records for an additional two weeks was necessary in
this case. Furthermore, KSP did not give the earliest date when the records would be
available. Thus, KSP subverted the intent of the Act, within the meaning of
KRS 61.880(4), by delaying access to records past the five-day period described in
KRS 61.880(1).
After this delay, having located 958 “potentially responsive” records, KSP
denied the request, claiming the request was too imprecise in identifying the records.
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 marks
omitted). This standard is not 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). In particular, 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, the Appellant did not seek “any-and-all records” related to a broad and
ill-defined topic. Rather, she sought communications between two named KSP
employees during a limited period of time in 2019. Moreover, the Appellant specified
that she only sought communications of those employees related to a specific data
sample. Thus, the request described the records in definite, specific, and unequivocal
terms.1
1
See generally Univ. of Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 48 n.2 (Ky. 2021) (“ORA requests
routinely seek ‘all documents pertaining to [subject matter].’ The responsibility for identifying
responsive records and any applicable exception lies with the receiving public agency, not the
requester.”).To the extent KSP claims “correspondence” is an excessively vague descriptor,
the Office has found otherwise. See 24-ORD-152. “[T]he common and ordinary
meaning of ‘correspondence’ is ‘communication by letters or email,’ or ‘the letters or
emails exchanged.” 22-ORD-255. KSP can determine whether any letters responsive
to the request exist by simply asking the two employees. Regarding emails, KSP has
already found 958 “potentially responsive records.” Although KSP claims it can only
determine whether an email specifically mentions the specific data sample at issue,
but not whether it otherwise “relates” to it, it does not explain why this question could
not also be posed to the two employees. “[I]t is only reasonable to assume that the
employees in possession of responsive emails would be in the best position to search
for them,” 23-ORD-304, and likewise, to identify them. Therefore, KSP violated the
Act when it denied the Appellant’s request under KRS 61.872(3)(b).
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
#436
Distributed to:
Ms. Vivian Miles
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Lt. Mitchel S. Hazelett