25-ORD-064
March 17, 2025
In re: Eric Ribenboim/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) violated the Open
Records Act (“the Act”) when it denied a request for records for failure
to certify a commercial purpose when the requester stated his purpose
was not commercial. Metro also violated the Act when it failed to
respond to a request within five business days and failed to give a
detailed explanation of the cause for additional delay as required by
KRS 61.872(5). Metro further violated the Act when it denied two
requests under KRS 61.872(6) without proof by clear and convincing
evidence that they placed an unreasonable burden on the agency.
Open Records Decision
This appeal concerns three separate requests for public records submitted to
Metro by Eric Ribenboim (“the Appellant”). On September 7, 2024, the Appellant
requested a copy of all emails “sent from or to” a certain Metro employee between
July 1 and December 31, 2023, containing the word “homeless.” In response, Metro
demanded the Appellant submit a “commercial purpose form” certifying a commercial
purpose for his request. On September 9, 2024, the Appellant replied that his request
was “NOT for a commercial purpose.” Nevertheless, on September 23, 2024, Metro
declared the Appellant’s request had been “closed due to commercial purpose form
not being returned.” The Appellant appeals this denial of the request.
Under KRS 61.874(4), if public records are requested for a commercial purpose,
the public agency may impose certain requirements, including a reasonable fee
including staff costs, a certified statement of the purpose for which the records will
be used, and the establishment of a contract. Accordingly, KRS 61.876(4)(c) permits
the agency to inquire “[w]hether the request is for a commercial purpose.” Here,
however, Metro denied the Appellant’s request as a commercial request after being
told the request was noncommercial. “[N]othing in the Act allows an agency to deny
a request, after the requester states the records will not be used for a commercial
purpose, simply because the agency disagrees with the requester’s answer to thequestion.” 24-ORD-049. Therefore, Metro violated the Act when it denied the
September 7, 2024, request for failure to certify a commercial purpose.
On September 24, 2024, the Appellant requested a “copy of body camera video
from all units associated with run to 4822 Poplar Level Road for event P22349308.”
On October 8, 2024, Metro responded to the Appellant’s request. Under
KRS 61.880(1), a public agency has five business days to respond to an open records
request. Thus, Metro was required to respond no later than October 2, 2024.1 By
failing to respond within five business days, Metro violated the Act.
In its response on October 8, 2024, Metro claimed the video was “not otherwise
available” because it must be retrieved, reviewed, and redacted, with each minute of
footage requiring seven minutes for the review and redaction process. However,
Metro did not state how many minutes of video were responsive to the request, but
merely stated that “[s]ome requests take as little as 30 minutes to an hour to
complete, while some can take over a week.” Metro stated the video would “be made
available on or before February 24, 2025,” or five months after the date of the
Appellant’s request. Under KRS 61.872(5), a public agency may extend the time to
fulfill a request for public records if “the public record is in active use, in storage or
not otherwise available.” In such cases, the agency must give “a detailed explanation
of the cause [for] further delay and [the] earliest date on which the public record will
be available for inspection.” Id. However, the burden rests with the public agency
under KRS 61.880(2)(c) to justify the amount of delay it claims is necessary. See, e.g.,
21-ORD-045. In determining whether a delay is reasonable, the Office considers the
number, location, and content of the records. See, e.g., 01-ORD-140; OAG 92-117.
Here, however, Metro provided no information about how many minutes of video were
implicated by the Appellant’s request or how long it would take to process it.
Accordingly, Metro failed to justify a five-month delay for producing the requested
records.2
On October 14, 2024, the Appellant requested a copy of “body camera video
from all units associated with run on report #LMPD24093380.” The following day,
Metro responded to that request, and also issued a superseding response to the
Appellant’s September 24, 2024, request. In both responses, Metro denied the
requests based on its view that the cumulative volume of the requests the Appellant
made in 2024 constituted an “unreasonable burden” under KRS 61.872(6).
1
Metro received the Appellant’s request at 4:57 p.m. on September 24, 2024. The five business days
for Metro to respond under KRS 61.880(1) would have expired on either October 1 or 2, depending on
whether the request was received during or after business hours on September 24.
2 Metro’s primary reason for imposing a five-month delay appears to have been the fact that it
employed only four staff members to process video and had “an estimated 1,000+ pending requests for
video.” However, as the Office has consistently stated, neither staffing issues nor the volume of
unrelated requests justifies a delayed response. See, e.g., 22-ORD-134; 21-ORD-045 n.4; 19-ORD-188
n.1; 17-ORD-082.Specifically, Metro stated the Appellant had made 168 requests for records during
the nine months from January to September 2024, resulting in the production of
5,500 pages of records, plus Computer Aided Dispatch records, audio recordings of
emergency calls, and body camera video. Metro stated it had spent at least 224.5
hours processing the Appellant’s requests in that nine-month period, and further
noted the Appellant had made a similar number of requests in both 2021 and 2022.
Based on this history of multiple requests, Metro denied the pending requests from
the Appellant as “unreasonably burdensome.” This appeal followed.
Under KRS 61.872(6), “[i]f the application places an unreasonable burden in
producing public records or if the custodian has reason to believe that repeated
requests are intended to disrupt other essential functions of the public agency, 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.” As the courts have noted, “the obvious fact that complying with
an open records request will consume both time and manpower is, standing alone,
not sufficiently clear and convincing evidence of an unreasonable burden.”
Commonwealth v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008). “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. Thus, the burden is determined based on the nature of the
pending request.
Here, however, Metro makes a novel argument, inasmuch as it does not base
its denial on the particular burden posed by the requests at issue. Furthermore,
Metro expressly disclaims any assertion that the Appellant “intends to disrupt agency
functions.” Instead, Metro claims the volume of his past requests makes it
unreasonably burdensome for Metro to fulfill any more requests from the Appellant.
Whether KRS 61.872(6) can be used in this manner is fundamentally an issue of
statutory construction. Clearly, an agency may make a case under the statute that
“the application,” or request, for public records currently presented imposes an
unreasonable burden. Likewise, an agency may prove it has a reasonable belief that
“repeated requests” are intended to disrupt its essential functions. The question here,
however, is whether “repeated requests” can constitute an unreasonable burden in
the absence of any reason to believe the requester intends to disrupt essential agency
functions.
To support its argument, Metro points to dictum in 06-ORD-159, in which two
individuals, acting in concert, submitted a large number of record requests to the
Covington Police Department over five years, some of which were duplicative of
earlier requests. After finding that the duplicative portions of the requests
constituted an unreasonable burden, the Office stated: “We leave for another day thequestion of whether [a person’s] repeated, albeit nonduplicative, requests . . . over a
period of time . . . justify invocation of KRS 61.872(6) with respect to future requests.”
06-ORD-159 (emphasis in original). Here, Metro seeks an answer to that question
and, if the answer is affirmative, “guidance . . . regarding when a cumulative burden
to produce additional records can be established by staff time spent or by limits on
the number of requests made within a certain period.”
In 96-ORD-193, the Office noted the Act places “no limitation on the number
of requests . . . an applicant can submit,” but stated “there is certainly a point at
which the applicant’s repeated use of the law becomes an abuse of the law within the
contemplation of KRS 61.872(6).” The issue is how, and under what circumstances,
an agency may prove such an “abuse” has been committed through multiple requests
for records.3
To start, it is necessary to draw a distinction between multiple requests for
records submitted at the same time, as mentioned in 96-ORD-193, and multiple
requests spread over a period of months or years. KRS 61.872(6) refers to “the
application” as the subject of an unreasonable burden (emphasis added). A relevant
rule of statutory construction is that “[a] word importing the singular number only
may extend and be applied to several persons or things, as well as to one (1) person
or thing.” KRS 446.020(1). Thus, in determining whether “the application” (singular)
imposes an unreasonable burden on the agency, multiple simultaneous “applications”
from one person may be considered, so that a requester cannot evade the import of
KRS 61.872(6) by simply breaking up one voluminous request into numerous smaller
ones. However, what constitutes an unreasonable burden if presented all at once may
not constitute the same burden if presented over months or years. Thus, in
KRS 61.872(6), the legislative distinction between “the application,” on the one hand,
and “repeated requests,” on the other, is not merely the difference between singular
and plural, but includes an element of time. Furthermore, the rule of construction in
KRS 446.020(1) “is not invoked, unless necessary to carry into effect the plain and
manifest intention of the Legislature.” Commonwealth v. Barnett, 245 S.W. 874, 880
(Ky. 1922).4 Here, the plain intention of KRS 61.872(6) is to require clear and
convincing evidence of a reasonable belief of intent to “disrupt other essential
functions” before an agency can deny non-duplicative “repeated requests” at different
times as an abuse of the Act.
3
The Office noted in 96-ORD-193 that it had received six appeals between the same parties within
a one-month period, which might tend to suggest the same individual had submitted even more
requests for records within that short span of time. However, the agency did not prevail because it
presented no arguments to prove its case on that issue. Id.
4 The Court in Barnett was construing the predecessor statute to KRS 446.020, which contained
identical language.Although it is difficult for an agency to prove intent to disrupt by clear and
convincing evidence, it is not impossible. For example, in 02-ORD-230, intent to
disrupt was established by a broadly worded request (“ALL Richmond District Court
Facilities Corporate Records”), coupled with an extensive history of failure to retrieve
requested records and a criminal conviction for harassing communications directed
to city employees. In 15-ORD-015, intent to disrupt was found when a requester had
repeatedly failed to pay for copies of voluminous records in a timely manner and
demanded the agency pay him $500,000 to stop submitting requests. In 22-ORD-048,
intent to disrupt was proven by a requester’s repeated failure to retrieve records and
requesting copies of all city ordinances, which he knew were temporarily not in the
city’s possession due to an ongoing digitization process. But outside such “extreme
and abusive circumstances[,] it is the legislative intent that public employees exercise
patience and long-suffering in making public records available for public inspection.”
OAG 77-151. Regardless, here, Metro has expressly disclaimed any belief that the
Appellant intends to disrupt its essential functions.
At bottom, the Office declines to consider the number of previously processed
requests to determine whether a current request poses an unreasonable burden under
KRS 61.872(6). It is possible that, under the facts of a particular case, a large number
of previously processed requests submitted over a period of time could be evidence
that a requester intended to “disrupt other essential functions” of an agency. But
here, because Metro expressly disclaimed any belief that the Appellant intends to
disrupt its essential functions, the Office need not address that hypothetical
scenario.5
Metro does, however, assert it has denied as unreasonably burdensome “26
pending, cumulative, nonduplicative requests” from the Appellant, including the two
at issue here, which it claims “would have cumulatively required an estimated 138
hours to fulfill.” A large number of simultaneous requests from one individual may,
of course, cumulatively constitute an unreasonable burden. See, e.g., 24-ORD-063 n.2;
96-ORD-193. However, the agency must prove such a burden by clear and convincing
evidence. Here, Metro asserts it would require 138 hours to fulfill the 26 pending
requests. However, “[w]hen 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-
5
Although the Appellant stated that his requests were not submitted for a commercial purpose,
Metro points to evidence it believes contradicts that assertion. KRS 61.874(5)(c) makes it “unlawful
for a person to obtain a copy of any part of a public record for a [n]oncommercial purpose, if the person
uses or knowingly allows the use of the public record for a commercial purpose.” The remedy for a
violation of that provision is that a public agency may bring a civil action to obtain treble damages,
costs, and attorney’s fees under KRS 61.8745, along with any other penalty established by law. But
such a violation does not justify denying the request altogether.ORD-182. Metro, however, provides none of this information. It does not state how
many records are implicated by the 26 pending requests or how it arrived at the figure
of 138 hours. Nor is it clear, even if so proven, that 138 hours of staff time would
constitute an unreasonable burden. See, e.g., 25-ORD-047 (finding 103.9 hours of staff
time to process a request did not impose an unreasonable burden). Thus, Metro has
not met its burden of proof that the Appellant’s pending requests constitute an
unreasonable burden.6 Because the Appellant’s past requests, which have already
been completed, do not add to that burden, Metro violated the Act when it denied the
Appellant’s two requests dated September 24 and October 14, 2024, based on
KRS 61.872(6).
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
#8
Distribution:
Mr. Eric Ribenboim
Alice Lyon, Esq.
Nicole Pang, Esq.
Natalie S. Johnson, Esq.
Annale R. Taylor, Esq.
6
The Office does not doubt that the application of 26 requests for records in a three-day period
imposes a burden on Metro. But the Office cannot assume, absent a showing made by Metro, that the
burden is unreasonable.