25-ORD-076
March 24, 2025
In re: Sarah Thomas/University of Kentucky
Summary: The University of Kentucky (“the University”) violated the
Open Records Act (“the Act”) when it failed to grant or deny requests for
records within five business days and did not properly invoke
KRS 61.872(5). However, the University did not violate the Act when it
could not provide records that no longer exist.
Open Records Decision
This appeal concerns three separate requests for public records submitted to
the University by Sarah Thomas (“the Appellant”). On October 24, 2024, the
Appellant requested all emails sent or received by three physicians in the University’s
graduate medical education program between July 1, 2023, and October 17, 2014,
containing any of the following terms: “Sarah Thomas,” “Dr. Thomas,” “ACGME,”
“competency,”
“review,”
“performance,”
“professionalism,”
“communication,”
“complaint,” “resident,” “concern,” “safety,” “risk,” “GMEC,” or “appeal.” On October
28, 2024, the University replied, without explanation, that it would “need 45 days to
respond.” Subsequently, on November 27, 2024, the University denied the request as
“unreasonably burdensome” under KRS 61.872(6) because it implicated 29,109
records consisting of 776,772 pages, which would have to be reviewed and redacted
for
“patient-protected
information”
and
other
private
information
under
KRS 61.878(1)(a), as well as preliminary materials under KRS 61.878(1)(i) and (j) and
attorney-client privileged communications. The University stated it would take an
estimated “970.3 hours to review and redact all the potentially responsive records.”
On appeal, the Appellant does not argue that the denial was improper, but
claims the University violated the Act by taking approximately 20 business days to
issue a substantive response to her request. Under KRS 61.880(1), a public agency
has five business days to grant or deny a request for public records. This period may
be extended if the records are “in active use, in storage or not otherwise available,”
but the agency must give “a detailed explanation of the cause . . . for further delay
and the place, time, and earliest date on which the public record[s] will be availablefor inspection.” KRS 61.872(5). Here, the University responded within five business
days. However, it did not grant or deny the request at that time, but merely offered
a future date by which it would grant or deny the request. In so responding, the
University did not give “a detailed explanation of the cause” for delaying its final
response, but merely stated more time was needed. Therefore, the University’s initial
response to the October 24 request violated the Act.
On December 5, 2024,1 the Appellant requested “[a]ll evaluation data and/or
documentation submitted to MedHub[2] by Dr. Thomas Pittman on 12/14/23.” The
University responded that it had no responsive records. On appeal, the Appellant
claims the requested records either are “being inappropriately withheld” or have been
“inappropriately deleted.” Once a public agency states affirmatively that records do
not exist, the burden shifts to the requester to present a prima facie case that the
requested records do exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172
S.W.3d 333, 341 (Ky. 2005). A requester’s bare assertion that an agency possesses
requested records is insufficient to establish a prima facie case that the agency, in
fact, possesses them. See, e.g., 22-ORD-040. Rather, to present a prima facie case that
the agency possesses or should possess the requested records, the requester must
provide some statute, regulation, or factual support for this contention. See, e.g., 21-
ORD-177; 11-ORD-074.
Here, as evidence, the Appellant provides an email dated December 14, 2023,
informing her that “[a] performance evaluation was just submitted and is available
in MedHub” and indicating Dr. Thomas Pittman was the evaluator. However, the
University explains that Dr. Pittman designated another individual as a “scribe,” who
transcribed Dr. Pittman’s comments verbatim into the MedHub system. At Dr.
Pittman’s request, the scribe revised the comments for clarity in the final evaluation
dated December 15, 2023. According to the University, “[w]hen comments are revised
and the evaluation is finalized, the old draft comment is not maintained.”3 Thus, to
the extent the Appellant may have established a prima facie case that the comments
submitted on December 14, 2023, once existed, the University has rebutted that
1
Although the email containing the request is dated December 5, 2024, both parties to the appeal
refer to the date of the request as December 15, 2024. Thus, the timeliness of the University’s response
on December 17, 2024, has not been raised as an issue.
2
According to the University, “MedHub is an electronic record system that the University uses for
evaluations of medical residents.” Although the Appellant’s request did not expressly limit her request
to documentation relating to her, it is apparent from the context that this was the intent of the request.
3
On appeal, the Appellant claims the University may have audio recordings of Dr. Pittman’s
original comments. However, it is not clear that any such recordings exist, nor did the Appellant’s
request specifically mention them. Furthermore, insofar as those comments were revised for the final
evaluation, they would arguably be “preliminary drafts” under KRS 61.878(1)(i).presumption.4 Accordingly, the University did not violate the Act when it denied the
request dated December 5, 2024.5
Finally, on January 9, 2025, the Appellant requested all emails between an
Assistant General Counsel and an Equal Opportunity Investigator at the University
between June 1, 2024, and January 8, 2025. That same day, the University replied
that it would “need 45 days to respond” because it must “(1) gather records that are
potentially responsive; (2) evaluate those documents to determine if the records are
responsive; (3) determine if the responsive documents are exempt; and (4) if the
documents are exempt[,] redact the exempt materials.” On appeal, the Appellant
asserts the University did not provide a “detailed explanation” under KRS 61.872(5)
for extending its response time. The University claims it gave a detailed explanation
by stating the records must be gathered, evaluated, reviewed, and redacted. However,
the Act contemplates that all those actions should be completed within five business
days for every request, unless KRS 61.872(5) applies. The University’s response did
not claim the records were “in active use, in storage or not otherwise available” under
KRS 61.872(5) or explain why delay was necessary beyond the normal five-day period
prescribed by KRS 61.880(1).
On appeal, the University argues that the reason for delay should have been
obvious because the Appellant’s request implicated a large number of records. While
it is true that persons requesting large volumes of records may “expect reasonable
delays in records production,” 12-ORD-228, the reasonableness of such a delay “is a
fact-intensive inquiry.” 21-ORD-045. Furthermore, even if the University had
informed the Appellant that the records were voluminous, that alone would not have
been a sufficiently “detailed explanation” under KRS 61.872(5). See, e.g., 21-ORD-248
n.2 (finding insufficient the explanation that a request “covers a large number of
records; therefore, additional time is necessary to compile and review the requested
records and identify any exempt records or records that otherwise require redaction”).
Therefore, the University’s initial response did not comply with the Act.
The University further claims this appeal is moot as to the January 9, 2025,
request because it issued a final response to the request on January 17, 2025, after
this appeal was initiated.6 However, the University does not claim it has provided all
requested records to the Appellant. Under 40 KAR 1:030 § 6, an open records appeal
is moot only “[i]f the requested documents are made available to the complaining
4
Further, the Appellant has not established that the draft version of the evaluation was
“inappropriately deleted.”
5
The University argues that, even if the draft comments still existed, they would be exempt from
disclosure as “preliminary drafts” under KRS 61.878(1)(i). Because the nonexistence of the records is
dispositive of this issue, it is not necessary to decide whether the University could have denied the
request under KRS 61.878(1)(i).
6
That response is the subject of a separate appeal.party after a complaint is made.” Furthermore, because the University received the
Appellant’s request on January 9, 2025, its final response was due on January 16,
2025, absent a proper invocation of KRS 61.872(5). Therefore, the University violated
the Act when it failed to grant or deny the Appellant’s request within five business
days.
The Office takes this opportunity to restate the factors it considers when
determining whether a delay is reasonable under KRS 61.872(5). In making this
determination, 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 to respond 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).
Importantly, the Office has consistently determined that an agency has not
adequately explained that records are “in active use, in storage, or not otherwise
available” when it only asserts that the request implicates a large number of records.
See, e.g., 25-ORD-008; 24-ORD-249; 21-ORD-248; 21-ORD-011. This is because the
“detailed explanation” required by KRS 61.872(5) is not achieved by a general
assertion that many responsive records exist. Rather, the agency must provide an
estimate of the actual number of responsive records.
Finally, the Office directs agencies to 24-ORD-249 as an example of an agency
that, on appeal, demonstrated that a seven-month delay to review 39,000 responsive
records was reasonable. There, in addition to providing an estimate of the number of
responsive records, the agency explained that the records implicated the attorney-
client privilege,7 among other exemptions, and further explained the delay caused by
the way the records were stored. Id. Moreover, the agency committed to providing the
requester with responsive records in rolling batches. Id. Thus, under the
circumstances as explained by the agency, the Office determined its delay, although
lengthy, was reasonable.
7
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).By contrast, here, the University’s original response did not identify the
number of potentially responsive records, did not describe the content of the records
and which exemptions might be implicated, and did not explain any additional cause
of delay due to the way the records were stored. The agency always carries the burden
of proof to sustain its actions. KRS 61.880(2)(c). At bottom, the Office cannot assume,
absent a showing by the University, that its delay is reasonable.
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
#18
Distribution:
Sarah H. Thomas, M.D.
William E. Thro, Esq.
Ms. Amy R. Spagnuolo