25-ORD-058
March 5, 2025
In re: Brandi Lanham/Webster County Judge/Executive
Summary: The
Webster
County
Judge/Executive
(“the
Judge/Executive”) violated the Open Records Act (“the Act”) when it
failed to properly invoke KRS 61.878(1)(m)1. to withhold records.
Open Records Decision
Brandi Lanham (“the Appellant”) submitted a request to the Judge/Executive
seeking “[a]ll security assessments from . . . homeland security for [the] old
courthouse building” from 2018 to the date of her request. In response, the
Judge/Executive stated it “cannot provide [the Appellant] any records for [her]
request because of the exemption under KRS 61.878(1)(m)3.” This appeal followed.
Upon receiving a request to inspect public records, a public agency must
determine within five business days whether to grant the request or deny it.
KRS 61.880(1). If the agency chooses to deny the request, it “shall include a statement
of the specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” Id. (emphasis added).
Although KRS 61.880(1) requires the explanation in support of denial to be “brief,”
the response cannot be “limited and perfunctory.” Edmondson v. Alig, 926 S.W.2d
856, 858 (Ky. App. 1996). In Edmondson, the agency’s response to a request stated
merely that “the information you seek is exempt under KRS 61.878(1)(a)(k)(l) [sic].”
Id. The agency failed to explain how any of the cited exemptions applied to the records
withheld, and for that reason, the court held, the agency violated KRS 61.880(1). Id.
Here, the Judge/Executive’s initial response merely stated it “cannot provide
[the Appellant] any records for [her] request because of the exemption under
KRS 61.878(1)(m)3.”1 Moreover, on appeal, the Judge/Executive states only that it
1
The Office notes that the Judge/Executive cited the incorrect subsection of this exemption.
KRS 61.878(1)(m)3. requires that “the same day that a public agency denies a request to inspect a
public record for a reason identified in [KRS 61.878(1)(m)], that public agency shall forward a copy of
the written denial of the request . . . to the executive director of the Kentucky Office of Homeland“determined and cited the applicability of KRS 61.878(1)(m)(1)(e) [sic] as an
exemption to this request.”
KRS 61.878(1)(m)1., which has been referred to as the “homeland security
exemption,” makes exempt from disclosure under the Act “[p]ublic records the
disclosure of which would have a reasonable likelihood of threatening public safety
by exposing a vulnerability in preventing, protecting against, mitigating, or
responding to a terrorist act.” The Office has found that public agencies carry a heavy
burden to explain how the exemption applies. See, e.g., 09-ORD-100 (finding that an
agency failed to carry its burden of showing that the designs of a 300-foot radio
antenna were exempt under KRS 61.878(1)(m)). That is because, by its express terms,
KRS 61.878(1)(m) is a particularly narrow exemption. It applies only to a potential
“terrorist act,” defined as “a criminal act intended to” “[i]ntimidate or coerce a public
agency or all or part of the civilian population,” “[d]isrupt a system identified in
[KRS 61.878(1)(m)1.f.],” or “[c]ause massive destruction to a building or facility
owned, occupied, leased, or maintained by a public agency.” KRS 61.878(1)(m)2. The
Office has found that records that merely expose a security vulnerability are not
exempt under KRS 61.878(1)(m) in the absence of proof that a “reasonable likelihood”
exists that the information could be used to carry out a “terrorist act.” See, e.g., 15-
ORD-041 (rejecting a law enforcement agency’s claim that security footage from
inside the agency’s facility was exempt under KRS 61.878(1)(m) despite its potential
to show the camera’s “blind spots”).
The Judge/Executive does not explain how release of responsive records would
create a “reasonable likelihood” that a terrorist act would occur. Indeed, the
Judge/Executive has not described the records responsive to the Appellant’s request.
Under KRS 61.880(2)(c), “[t]he burden of proof in sustaining the action shall rest with
the agency.” But here, the Judge/Executive’s “limited and perfunctory” response,
which merely states that the exemption applies, provides no basis to conclude there
is a “reasonable likelihood” that release of the record would lead to a criminal act
intended to “[i]ntimidate or coerce a public agency or all or part of the civilian
population,” “disrupt a system identified in” KRS 61.878(1)(m)1.f., or “[c]ause massive
destruction to a building or facility owned, occupied, leased, or maintained by a public
agency.”2 Absent any explanation justifying its denial, the Office cannot find that the
Security and the Attorney General.” Additionally, the Judge/Executive, in its initial response and in
its response on appeal, stated that it had forwarded its written denial to the Office. However, as of the
date of this decision, the Office has yet to receive the Judge/Executive’s written denial. The Office has
previously found that an agency fails to rely on the “homeland security exemption” when it does not
comply with KRS 61.878(1)(m)3. See 24-ORD-094.
2
Because the Judge/Executive has not described the records it has withheld or explained how they
are exempt under KRS 61.878(1)(m)1., the Office cannot determine whether the “homeland security
exemption” applies to the records withheld. The Office need not strain to imagine how records
described by the Appellant as “security assessments . . . from homeland security” might fall under
KRS 61.878(1)(m)1. But, given the lack of any detail about the records in this appeal, the OfficeJudge/Executive properly withheld the records under KRS 61.878(1)(m)1.e.
Accordingly, the Judge/Executive violated the Act.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#054
Distribution:
Brandi Lanham
Stephen R. Henry, Webster County Judge/Executive
Hon. Clint Prow, Webster County Attorney
declines to make that determination. Thus, the Office’s decision in this appeal is therefore limited to
a determination that the Judge/Executive failed to adequately invoke the “homeland security
exemption” with respect to the requested records.