25-ORD-061
March 10, 2025
In re: Thomas Rackley/Northern Pendleton Fire District
Summary: The Northern Pendleton Fire District (“the District”)
violated the Open Records Act (“the Act”) when it did not grant or deny
a request within five business days. The District also subverted the
intent of the Act by claiming that it required one year to process the
request.
Open Records Decision
On January 23, 2025, Thomas Rackley (“Appellant”) submitted a ten-part
request to the District seeking a variety of records related to the District’s operations.
The requested records include various forms of correspondence, camera footage, fire
reports, training records, bylaws, the District’s minutes, and investigations into the
Appellant. In response, on January 24, 2025, the District stated it would “take the
next few days to review” the Appellant’s request. On February 10, 2025, having not
received responsive records, the Appellant initiated this appeal.
Under KRS 61.880(1), upon receiving a request for records 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 request, within the five (5) day period, of its decision.” Further,
under KRS 61.880(4), a person may petition the Attorney General to review an
agency’s action, short of denial of inspection, if the “person feels the intent of [the Act]
is being subverted.” One way in which a public agency may subvert the intent of the
Act is to unreasonably delay access to the requested records. See, e.g., 20-ORD-137.
On appeal, the District states it received the Appellant’s request on January
23, 2025, but did not fully respond until January 31, 2025, the sixth business dayafter receipt of the request. Accordingly, the District violated the Act when it failed
to issue a timely response within five business days.
On appeal, the District states it informed the Appellant on January 31, 2025,
that, pursuant to KRS 61.872(5), the Appellant could expect to receive responsive
records on January 23, 2026 because the records are “in active use, in storage or not
otherwise available.” Under KRS 61.872(5), an agency may extend the time by which
it must respond to a request 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.
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 when responding 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).
On appeal, the District justifies its delay by describing the number of
responsive records and the exemptions applicable to those records. To start, the
District explains that it possesses between 14,250 and 15,100 records responsive to
the Appellant’s request. The District further explains that the request implicates
records requiring redaction of “personal information” under KRS 61.878(1)(a), a
“performance examination,” EMS runs containing information exempt under
KRS 311A.190(5), and preliminary notes and memoranda under KRS 61.878(1)(i) and
(j). Here, by explaining the large number of records implicated by the request and the
exemptions implicated by those records, the District has demonstrated that some
delay was reasonable. However, the District has not demonstrated that a one-year
delay was reasonable.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. Moreover,
the Office recently concluded that a seven-month delay was reasonable in response
to a request implicating roughly 39,000 records. See, e.g., 24-ORD-249. There, the
agency explained that the records implicated the attorney-client privilege,1 among
other exemptions, and further explained the delay caused by the manner in which
the records were stored. Id. Moreover, the agency committed to providing the
requester with responsive records in rolling batches. Id. Here, the Appellant seeks
24,000 fewer records than the appellant sought in 24-ORD-249, but the District seeks
five more months of delay. The District also has not articulated a reason for delay
caused by the locations of the records, and it has not committed to producing
responsive records in rolling batches.
At bottom, the burden is on the District to justify its delay. KRS 61.880(1)(c).
To do so, it was required to put forth some evidence to demonstrate why it requires
an entire year to process a request implicating roughly 14,000 records. The District
has failed to carry that burden under these facts. Thus, the District has subverted
the intent of the Act by denying the Appellant’s access to the requested records for
one year.2
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.
1
The Office has previously recognized that the law governing confidentiality is a factor in
determining whether a delay is reasonable. See, e.g., 21-ORD-045 n.2 (recognizing the “tremendous
disadvantage to a public agency” that could result from the disclosure of privileged material).
2
The District, on appeal, states that the Appellant has submitted additional requests since
receiving the District’s January 31 response. Those requests are not the subject of this appeal because
neither those request nor the District’s responses thereto were submitted to the Office when initiating
the appeal. See KRS 61.880(2)(a). Moreover, requests submitted after the District’s January 31
response have no bearing on that response’s compliance with the Act.Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#062
Distributed to:
Thomas Rackley
Chief Adam Fuller, Northern Pendleton Fire District
Joseph P Cottingham, Esq.
Maurice A, Byrne, Jr., Esq.