24-ORD-273
December 23, 2024
In re: Ronnie Scott Bailey/Rowan County Detention Center
Summary: The Rowan County Detention Center (“the Jail”) violated
the Open Records Act (“the Act”) when it failed to give a detailed
explanation of the cause for delay in providing records as required under
KRS 61.872(5). The Jail subverted the intent of the Act, within the
meaning of KRS 61.880(4), by unreasonable delay when it failed to show
the delay was necessary. However, the Jail did not violate the Act when
it issued a response through an authorized agent of the official custodian
of records.
Open Records Decision
In a request dated November 4, 2024, and received by the Jail on November
12, 2024, Ronnie Scott Bailey (“the Appellant”) sought copies of a “directory or list” of
official phone numbers for Jail staff, “phone numbers publicly listed or provided to
the public for jail operations,” “BYOD (Bring Your Own Device) agreements or
policies,” and “policies regarding use of personal phones for jail business.” The
Appellant also requested any documents showing “[p]hone number assignments for
jail staff,” “[m]obile carrier information for all phones used by jail staff in an official
capacity,” “[e]xpense reports, reimbursement, or payments related to mobile phone
services,” “[s]tipends or allowances provided for mobile phone usage,” and
“[t]elecommunications policies or procedures.” Finally, the Appellant requested
copies of all emails sent to or from the jailer’s email address between October 6, 2020,
and November 4, 2024, “that are in any way related to jail business, operations, or
administration.”
In a timely response, the Jail provided a list of telephone numbers and stated,
“No one is reimbursed for any cell phones that are employed with the” Jail and “[n]o
policy exists regarding cell phone use for employees within the jail.” Finally, the Jail
stated the requested emails “will have to be retrieved by the County IT person,” who
“is currently out of town and will be back in a couple weeks.” The Jail asserted the
emails would “take some time to retrieve” and expressed the “hope” that they wouldbe available by January 15, 2025. On November 15, 2024, the Appellant asked the
Jail to produce emails “in blocks instead of all at once” as it proceeded to review them.
Having received no further reply from the Jail by November 22, 2024, the Appellant
initiated this appeal.
The Appellant makes two arguments on appeal. First, he claims the Jail has
subverted the intent of the Act by excessive delay in producing the requested emails.
In response, the Jail asserts its response complied with KRS 61.872(5) by providing
“a detailed explanation regarding the delay and a reasonable estimate as to when the
emails would be available.” The Jail claims a delay of two months is reasonable
because the “parameters of [the request] are broad” and the “emails are likely to
contain an extensive mixture of exempt and nonexempt information.”
Under KRS 61.880(1), a public agency must decide within five business days
whether to grant a request or deny it. This time may be extended under
KRS 61.872(5) when records are “in active use, in storage or not otherwise available”
if the agency gives “a detailed explanation of the cause . . . for further delay and the
place, time, and earliest date on which the public record will be available for
inspection.” In light of this provision, the Attorney General has recognized that
persons requesting large volumes of records should “expect reasonable delays in
records production.” 12-ORD-228. However, a vague statement about the volume of a
request is not a “detailed explanation” under KRS 61.872(5). See, e.g., 22-ORD-164;
17-ORD-194. Further, the redaction process required under KRS 61.878(4) is an
ordinary part of fulfilling an open records request. Although extensive redactions may
take so much time that the records cannot be produced within five business days, the
agency must explain why the stated length of the delay is necessary. See, e.g., 22-
ORD-166; 21-ORD-045.
Here, the Jail also claimed the “County IT person” would have to retrieve the
emails and would be out of town for “a couple weeks.” However, the Jail did not
explain why it was necessary for the IT person to retrieve the jailer’s emails, when
the jailer presumably had access to his own email account. See, e.g., 23-ORD-311
(finding the agency had the burden of explaining “why it was necessary to outsource
[a] search” for emails). Thus, the Jail’s response failed to provide the “detailed
explanation” required by KRS 61.872(5) for the projected delay of two months.
Because its response did not comply with KRS 61.872(5), the Jail violated the Act.
Under KRS 61.880(4), a person who “feels the intent of [the Act] is being
subverted by an agency short of denial of inspection, including but not limited to . . .
delay past the five (5) day period described in” KRS 61.880(1), may appeal to the
Attorney General as if the record had been denied. A public agency subverts the
intent of the Act within the meaning of KRS 61.880(4) when it fails to meet its burden
of proof under KRS 61.880(2)(c) that a delay in producing records is reasonable. See,e.g., 21-ORD-045. In determining whether a delay is reasonable, the Office considers
such factors as the number, location, and content of the requested records. Id.
“Weighing these factors is a fact-intensive inquiry.” Id. Here, the Jail has provided
no information about the number of records implicated by the request, the nature of
the needed redactions, or the time required to review each email. Accordingly, the
Jail has not met its burden of proof to justify a delay of two months. See, e.g., 24-ORD-
063. Thus, the Jail subverted the intent of the Act, within the meaning of
KRS 61.880(4), by delaying access to the requested records.1
The Appellant’s second claim is that the Jail violated the Act by issuing its
response to his request through the Rowan County Attorney instead of directly from
the Jail’s custodian of records. The Act, however, merely requires a response to be
“issued by the official custodian or under his or her authority.” KRS 61.880(1)
(emphasis added). Thus, so long as the Rowan County Attorney had authority from
the official custodian to respond to the request, his doing so did not violate the Act.
See 22-ORD-046.
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
#480
Distributed to:
Mr. Ronnie Scott Bailey
Jeffrey C. Mando, Esq.
Cecil Watkins, Esq.
Wes Coldiron, Jailer
1
“One way that a public agency can demonstrate its good faith” in cases of lengthy delay “would be
to release batches of processed records on an ongoing basis.” 21-ORD-045 n.3. Here, however, the Jail
did not respond to the Appellant’s request for it to release records in that fashion.