25-ORD-075
March 24, 2025
In re: Tiffany Aikin/Office of Medical Cannabis
Summary: The Office of Medical Cannabis (“the Agency”) violated the
Open Records Act (“the Act”) when it denied a request as unreasonably
burdensome.
Open Records Decision
On December 6, 2024, Tiffany Aikin (“the Appellant”) submitted a request to
the Agency related to certain applications for the medical cannabis lottery, in which
she sought, “[f]or each accepted application, the business entity legal name, if
applicant is a business, or the individual name, if the applicant applied as an
individual, along with the applicant mailing address.” In response, the Agency
provided responsive records but advised “that the records being produced do not
contain all the information [the Appellant] requested,” and that “[t]his is the only
format in which [the Agency] creates and maintains a record responsive to [her]
request.” The Agency further stated that, “to the extent” the Appellant requested
copies of the actual license applications that had been accepted for the lotteries, the
request was “unduly burdensome” because it would require the Agency “to pull and
redact” between 150,000 and 750,000 pages of documents, which would take
“thousands of hours.” The Appellant appealed the Agency’s denial, and the Office
determined that the Agency had not violated the Act.1
While that appeal was pending, the Appellant submitted a second, narrower
request to the Agency. Her request sought, “[f]or each application accepted into the
medical cannabis lotteries for tier one, tier two, and tier three cultivator licenses,
processor licenses, and dispensary licenses . . . a copy of the full ‘primary contact’
person page submitted as part of the application,” and “[i]f the ‘primary contact’ page
does not already have an application identifier on it, . . . the ‘general information’
1
See 25-ORD-021.page of the application.” The Appellant further specified that the pages she sought
were defined in the Agency’s “business application guide” with the names she used
and attached a copy of those pages as shown in the guide. The Appellant further
stated, “No other pages of the applications are being requested at this time.”
In response, the Agency referenced its denial of the Appellant’s first request,
stating it “is not required to compile information or create a record in response” to a
request, and the “only records responsive to [the Appellant’s] request are the full
applications.” The Agency further stated that it would be unreasonably burdensome
under KRS 61.872(6) to pull and redact 4,285 applications which could contain
between 150,000 and 750,000 pages of material exempt under KRS 61.878(1)(a),
(c)2.d., (i), and (j). This appeal followed.
On appeal, the Agency asserts that the issues in this appeal are identical to
those in the Appellant’s first appeal and incorporated by reference its response in the
first appeal. There, the Appellant “complain[ed] that the Agency has not provided, as
she asked, a database containing all the specific information she identified in her
request.” 25-ORD-021. Here, however, the Appellant did not request information.
Instead, she requested a specific page from each application. Thus, the Office
considers the Agency’s argument that the request was unreasonably burdensome.
Under KRS 61.872(6), “[i]f the application places an unreasonable burden in
producing public records” on the agency, then the agency can deny the request.
However, an agency denying a request under KRS 61.872(6) must support its denial
by “clear and convincing evidence.” Id. In addition to claiming the request is too
imprecise, the Agency also claims the Appellant’s request is unreasonably
burdensome. 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. See, e.g., 97-ORD-088 (finding that a request
implicating thousands of physical files pertaining to nursing facilities was
unreasonably burdensome, where the files were maintained in physical form in
several locations throughout the state, and each file was subject to confidentiality
provisions under state and federal law). In addition to these factors, the Office has
found that a public agency may demonstrate an unreasonable burden if it does not
catalog its records in a manner that will permit it to query keywords mentioned in
the request. See, e.g., 96-ORD-042 (finding that it would place an unreasonable
burden on the agency to manually review thousands of files for the requested keyword
to determine whether such records were responsive).Here, the Agency estimates that it possesses “4,285 applications” containing
“between 150,000 and 750,000 pages” of exempt material. However, this estimate was
provided in response the Appellant’s first request, which sought information. Here,
the Appellant made clear that she only seeks one specific page from each application.
Despite this fact, the Agency has incorporated by reference its response to a wholly
distinct and less specific request. The Office need not determine whether the Agency
met its burden to show by “clear and convincing evidence” that providing the complete
applications would be unreasonably burdensome because the Appellant did not seek
the complete applications. At bottom, the Agency has not explained why the
Appellant’s narrowed request was unreasonably burdensome. Thus, the Agency
violated the Act when it denied the Appellant’s request.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#017
Distributed to:
Ms. Tiffany Aikin
Matthew P. Lynch, Esq.
Sam Flynn, Esq.