25-ORD-042
February 13, 2025
In re: Joseph Childers/University of Kentucky
Summary: The University of Kentucky (“the University”) did not
violate the Open Records Act (“the Act”) when it denied a voluminous
request for records because it would place an unreasonable burden on
the agency.
Open Records Decision
On November 26, 2024, attorney Joseph Childers (“the Appellant”) requested
certain emails sent to or from four of the University’s senior administrators between
May 1, 2022, and September 4, 2024. Specifically, the Appellant requested all “emails
(including their electronic attachments) sent from or received [by] [University] email
addresses, that include the names ‘DeShana, Dr. Collett, Professor Collett, Senate
Council Chair Collett, SC Chair Collett’ or any other variation of [his] client’s name,
Deshana Collett.” The University denied the request as “unreasonably burdensome”
under KRS 61.872(6) due to the number of responsive records and the time required
to review and redact them. Alternatively, the University denied the request in part
under KRS 61.878(1)(i) and (j) insofar as it encompassed preliminary records
pertaining to “policy issues that involved the University Senate during the time [the
Appellant’s] client was Chair of that body.” Additionally, the University denied the
request to the extent it included attorney-client privileged communications under
KRE 503. This appeal followed.
If a request for records “places an unreasonable burden in producing public
records[,] the official custodian may refuse to permit inspection of the public records
or mail copies thereof. However, refusal under this section shall be sustained by clear
and convincing evidence.” KRS 61.872(6). “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.” 22-ORD-221. Of
these, the number of records implicated “is the most important factor to be
considered.” 22-ORD-182.Here, the University has identified 4,403 records that are responsive to the
Appellant’s request, consisting of 53,343 pages. Further, the University describes the
requested records as “emails [of] senior administrators” during a time “when there
was significant conflict with the University Senate,” which “makes it certain that
many of the records are preliminary[1] and/or attorney-client privileged.” The
University estimates, at the rate of one minute per page, it would take 889 hours to
review and redact the records. Alternatively, at the rate of four minutes per record,
or approximately 20 seconds per page, the University estimates review and redaction
would take 294 hours. Thus, an individual employee would be required to expend
somewhere between seven and 22 weeks at 40 hours per week to process the
Appellant’s request. In 23-ORD-076, the Office found a public agency had met its
burden of “clear and convincing evidence” that it would be unreasonably burdensome
to redact 71,000 records at 20 seconds per record, for a total of 394 hours of staff time.
Here, the number of pages and range of time articulated by the University are
commensurate with those in 23-ORD-076.
The Appellant argues the University’s estimate is excessive because the
University should be able to use electronic methods to identify and exclude emails
that may be duplicates. However, the University asserts it has no such technology
and must review each email “by hand” to determine any necessary redactions. Thus,
the fact that the records are electronic does not reduce the burden of compliance here.
Accordingly, the University has met its burden of proof under KRS 61.872(6) and
therefore did not violate the Act when it denied the Appellant’s request.2
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.
1
The Appellant’s client, as a University employee, has the right under KRS 61.878(3) to inspect
“preliminary and other supporting documentation” that “relates to” her, which would potentially
negate the exceptions under KRS 61.878(1)(i) and (j). Nevertheless, some such records could contain
her first or last name somewhere but “relate to” her only in part, thus being still subject to redaction
under KRS 61.878(4). This is likely the case here, as the average length of each responsive email,
including attachments, is over 12 pages.
2
Because KRS 61.872(6) is dispositive of the issue on appeal, it is unnecessary to address the
University’s arguments under KRS 61.878(i) and (j) or the attorney-client privilege.Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#30
Distribution:
Joseph F. Childers, Esq.
William E. Thro, Esq.
Ms. Amy R. Spagnuolo