25-ORD-102
April 15, 2025
In re: Olivia Tipton/Oldham County School District
Summary: The Oldham County School District (“the District”)
violated the Open Records Act (“the Act”) when it failed to issue a timely
written response stating that certain records did not exist, or explaining
why records were unavailable and giving the earliest date when they
would be available for inspection. The District subverted the intent of
the Act, within the meaning of KRS 61.880(4), when it did not allow its
records to be photographed or copied upon inspection. However, the
District did not subvert the intent of the Act when it contacted the
requester to schedule an appointment, within five business days, to
inspect records. The District did not violate the Act when it could not
provide records that do not exist and the requester did not establish a
prima facie case that additional records exist.
Open Records Decision
This appeal concerns two separate requests to the District for public records.
On January 21, 2025, Olivia Tipton (“the Appellant”) submitted a request to the
District to inspect five categories of records. First, she requested “[a]ll current policies
and procedures” for the Buckner Elementary Site-Based Decision Making Council
(“the Council”). Second, she requested an ethics agreement and certain
acknowledgments signed by the Council for the 2023–24 and 2024–25 school years.
Third, she requested “[t]he Board policy Waiver from March 30, 2023, including
“additional documents such as school board approval for this waiver.” Fourth, she
requested “[a]ll committee meeting notifications for the last calendar year or 2023-
2024 school year and 2024-2025 school year.” Finally, she requested “an outside
audit” that recommended the creation of bylaws for the Council. In response, the
District asked the Appellant to “share a time” when it would be convenient for her to
inspect the records, and the parties agreed to schedule the inspection for January 27,
2025.The parties disagree about what occurred at the time of the inspection. The
Appellant claims “the majority” of the requested records “were not available to view
and no explanation was given.” The District, however, claims it explained to the
Appellant that the “Ethics Agreement for the 2024-2025 school year was not provided
as it had not been finalized,” “that the Board Policy Waiver from [March] 30, 2023
was waived by” the Council, and that “there are no official notifications” of committee
meetings but only emails that “are not placed in the SBDM binders.” What is
undisputed is that the District did not provide a written notification, within five
business days after the Appellant’s request, that any records were unavailable, were
not yet finalized, or did not exist.
Furthermore, according to the Appellant, when she inspected the records that
were available, she asked to photograph the records and the District refused to allow
her to do so because the documents had not been checked for “personal information”
that might require redaction.1 The Appellant states the District offered to make
copies of the records, but refused to do so on the same day because it regarded the
request for copies “as a new records request” giving the District five additional days
to make the records available. On appeal, the District admits it “requested additional
time to ensure any documents copied were not subject to redaction of exemption [sic]
under the Open Records Act.” The District further claims the Appellant made
“additional clarifying requests . . . during the inspection,” which it “treated . . . as a
new Open Records request and stated physical copies would be available . . . on
February 3, 2025.” However, there is no record of any written request from the
Appellant for additional records on January 25, 2025. It is undisputed that the
District provided copies of some records to the Appellant on February 3, 2025, and
that those records included copies of certain email notifications of committee
meetings.
On March 5, 2025, the Appellant emailed the District and stated there were
still “missing documents” from her January 21 request, as outlined in her earlier
email of January 31, 2025. As to item 1 of the request, she claimed the policies she
received were not current. The District stated on March 6, 2025, that they were
current. As to item 2, the Appellant stated the “ethics agreement” for the current year
had not been provided. In response, the District explained that “[t]he Code of Ethics
was not signed this year.” As to item 3, the Appellant asked the District to confirm
that “no additional documents or approvals exist” regarding the “Board policy
Waiver,” and the District confirmed that was correct. As to item 4, the Appellant
complained she had not received all the emailed meeting notices. In response, the
District explained that some committees had not met during the relevant time period,
but it provided the emailed meeting notices that existed.
1 The Appellant states one of the documents she reviewed was partially covered by a folder during
her inspection in lieu of redaction.The Appellant makes several arguments on appeal. First, she argues the
District violated KRS 61.872(3)(a) when it asked her to provide a time when she could
inspect the District’s records in person. Under KRS 61.872(3)(a), a resident of the
Commonwealth of Kentucky may inspect public records “[d]uring the regular office
hours of the public agency.” The Act allows a person to petition the Attorney General
to review an agency’s action if the “person feels the intent of [the Act] is being
subverted by an agency short of denial of inspection.” KRS 61.880(4). Under certain
conditions, an agency’s request that a person schedule an appointment to inspect
records can amount to a subversion of the intent of the Act within the meaning of
KRS 61.880(4). See, e.g., 15-ORD-182 (agency continually cancelled appointments);
93-ORD-48 (agency limited inspection of records to three hours of its 8½-hour
business day). However, KRS 61.872(3)(a) “does not prohibit an agency from
coordinating with a requester for a mutually convenient time, in the immediate
future and during business hours, [as] a means of facilitating inspection.” 20-ORD-
013. Thus, “a public agency does not violate the Act when it merely attempts to plan
ahead for the requester’s visit and have the responsive records readily available.” 24-
ORD-239. Accordingly, the District did not subvert the intent of the Act, within the
meaning of KRS 61.880(4), when it asked the Appellant for a convenient time to
inspect the records.
Next, the Appellant claims the District did not grant timely inspection of the
records. Under KRS 61.880(1), a public agency has five business days after receipt of
a request in which to grant or deny inspection of records. Here, the Appellant’s
inspection occurred on January 27, 2025, the fourth business day after the District’s
receipt of her request. The Appellant argues this was untimely because the bylaws of
the Council “require documents to be available with in [sic] 3 days.” However, the
Attorney General is only authorized under KRS 61.880(2)(a) to adjudicate disputes
arising under the Act, not issues arising under an agency’s bylaws or internal policies.
See, e.g., 21-ORD-001 (declining to adjudicate issues unrelated to the Act). To the
extent the District granted inspection of records within five business days, it did not
violate the Act.
However, the District did not grant inspection of all the requested records
within five business days. Rather, it advised the Appellant on January 27, 2025, that
some records either did not exist or were not immediately available. Yet it did not do
so in writing. “The Act consistently requires agencies to respond in writing to open
records requests, even when they are unable to supply the records requested.” Eplion
v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). Further, the District apparently
did not understand the Appellant’s request for committee meeting notices to include
notifications by email; therefore, the emails were not immediately available for the
Appellant’s inspection on January 27, 2025. If a record is in active use, in storage, or
otherwise unavailable, KRS 61.872(5) requires a written response, “within [five]
business days, along with ‘a detailed explanation of the cause . . . for further delay.’”Cabinet for Health & Fam. Servs. v. Todd Cnty. Standard, Inc., 488 S.W.3d 1, 3 (Ky.
App. 2016) (quoting 11-ORD-074); see also 01-ORD-38 (noting “any extension of [the]
deadline for disclosure must be accompanied by a detailed explanation of the cause
for delay, and a written commitment to release the records on the earliest date
certain”). Here, the District did not provide, within five business days, a written
response stating which records did not exist and giving a detailed explanation for the
delay in producing other records with a statement of the earliest date when they
would be available for inspection.2 Thus, the District violated the Act.
The Appellant further complains that the District refused to allow her to
photograph the records she inspected on January 27, 2025. The Act provides that
“[u]pon inspection, the applicant shall have the right . . . to obtain copies of all public
records not exempted by the terms of KRS 61.878.” KRS 61.874(1). In general, a
requester has the right to photograph records upon inspection. Only county clerks
have been granted statutory authority to “establish procedures . . . restricting the use
of devices” to copy public records. KRS 64.019(1). “In the absence of such express
authority, a public agency subverts the intent of the Act when it prohibits a requester
from photographing its records with a personal device,” unless there is a provable
risk that the records will be damaged or altered in the process. 22-ORD-267. Here,
the District asserts it did not anticipate the request for copies and wanted time to
redact any exempt material from the records. However, the Act contemplates that
records should be reviewed and redacted “within five business days for every request,
unless KRS 61.872(5) applies.” 25-ORD-076. Accordingly, “the proper course of action
would be to prepare a redacted copy for the Appellant to inspect on the premises.” 22-
ORD-267 n.1. By refusing to allow the Appellant to use her own device to copy public
records “upon inspection,” as permitted by KRS 61.874(1), the District subverted the
intent of the Act within the meaning of KRS 61.880(4).3
Finally, the Appellant claims the code of ethics, or “ethics agreement,” signed
by the Council for the 2024–25 school year “remains inaccessible.” However, the
District has explained that the Council did not sign that document for 2024–25. Once
a public agency states affirmatively that a record does not exist, the burden shifts to
the requester to present a prima facie case that the requested record does exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here,
the Appellant has not attempted to do so. Accordingly, the District did not violate the
Act when it could not produce a record that does not exist.
The Appellant’s second request was submitted on February 19, 2025, seeking
three items. First, she requested “Administration policy 02.432, Waiver of Board
2 The District’s position that the Appellant made a new request on January 27, 2025, giving the
District an additional five business days to respond, is not supported by the record on appeal.
3 If any redactions to the inspected documents were necessary, the District has not explained why it
would not have been possible to make those redactions while the Appellant was still on the premises.Policy,” for school years 2022–23 and 2023–24. Second, she requested “Powers and
Duties of the Board of Education Procedure 01.51, Administrative procedures,” for
the same period of time. Finally, she requested a copy of an email “sent to all
Principals asking them to request waivers from the SBDM councils for AR 4040 in
relation to 504’s.” In a timely response, the District provided what it claims are “all
documents responsive to her requests.” On March 4, 2025, the Appellant inquired
whether the policies and procedures were “still current.” In response, the District
stated the documents provided “were the previous policies/procedures that were in
effect for the years [requested] until July 1, 2024.” The District provided links to the
current policies and procedures with an effective date of July 1, 2024, but stated it
could not “verify if there were any changes.”
On appeal, the Appellant claims she only received the policies and procedures
for the 2024–25 school year, and therefore did not receive what she requested because
“[t]he policy changed.” However, the District states “the same policies were in effect
during [2022–23 and 2023–24] and no additional procedures are linked to the policies
requested.” Thus, the District asserts there is no “separate or additional
documentation [that] would be responsive to the policies active during the 2022-2023
and 2023-2024 school years.” Once a public agency states affirmatively that no
further records exist, the burden shifts to the requester to present a prima facie case
that additional records do exist. See Bowling, 172 S.W.3d at 341. A requester’s bare
assertion that an agency possesses additional responsive 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 additional
records, the requester must provide some statute, regulation, or factual support for
this contention. See, e.g., 21-ORD-177; 11-ORD-074. Here, the Appellant produces a
policy numbered 1070, with a revision date of July 1, 2022, which she located with an
internet search. However, the District explains that policy 1070 is not responsive to
the Appellant’s request. Thus, the Appellant has not presented a prima facie case
that a different set of responsive policies and procedures exists. Accordingly, the
District’s disposition of the Appellant’s February 19, 2025, request did not violate 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#118
Distribution:
Ms. Olivia Tipton
Emily H. Vessels, Esq.
Jason Radford, Superintendent
Suzanne Hundley, Chair