25-ORD-109
April 30, 2025
In re: Saeid Shafizadeh/Shelbyville Police Department
Summary: The Shelbyville Police Department (“the Department”)
violated the Open Records Act (“the Act”) when it failed to substantiate
the fees imposed in its original response, but it has substantiated the
imposed fees on appeal. The Department did not violate the Act when it
withheld
“background
investigation
file[s]”
and
“polygraph
examinations” under KRS 15.400(3).
Open Records Decision
Saeid Shafizadeh (“Appellant”) submitted three requests to the Department
seeking a variety of records related to three individuals.1 In response, the
Department identified the subparts of the request for which it would be providing
responsive records, and the subparts for which it did not possess responsive records.
The Department also stated it would be withholding the “background investigation
file” and “polygraph examinations” under KRS 15.400. In citing that exemption, the
Department provided the Appellant with the entire text of KRS 15.400. Finally, the
Department stated it would mail the responsive records to the Appellant upon receipt
of the copying and postage fees.2 In response, the Appellant initiated three appeals
challenging the responses to each request.3
1
Specifically, the Appellant sought: (1) “Employment and background investigation files and
records”; (2) “Files and records containing incident reports, disciplinary, complaints, initiating
investigation letter(s), suspension notification(s), letters of separation, termination, retirement, and
resignation”; (3) “Internal affairs investigation(s)”; (4) “Performance appraisal and/or reviews”; (5)
“Trainings received and/or” reviews or certificates; (6) “Leave abuse documentation”; (7) “Polygraph
examination(s)”; (8) “File or published photo”; and (9) “Complete records of any settlements.”
2
In response to each request, the Department broke down the fees to be paid by stating the cost of
making copies and the cost of postage. The Department further stated the Appellant could opt out of
the postage fees by picking up the responsive records himself.
3
Because the only difference between the requests was the individual whose records the Appellant
sought, and because the Department’s responses were identical except for the fees imposed on the
Appellant, the Office has consolidated these three appeals. See, e.g., 22-ORD-167.The Appellant presents two issues on appeal. First, he objects to the
Department’s offer to provide him with paper copies rather than electronic copies of
the responsive records without stating the total number of pages of responsive
records. Second, the Appellant asserts the Department has not adequately invoked
any exemption to withhold records.
Under KRS 61.880(4), a person requesting records may appeal to the Attorney
General if he believes “the intent of [the Act] is being subverted by an agency short
of denial of inspection, including but not limited to the imposition of excessive fees.”
The Act provides that a “public agency may prescribe a reasonable fee for making
copies of nonexempt public records requested for use for noncommercial purposes
which shall not exceed the actual cost of reproduction, including the costs of the media
and any mechanical processing cost incurred by the public agency, but not including
the cost of staff required.” KRS 61.874(3).
Under KRS 61.880(2)(c), the burden is on the public agency to sustain its action.
To meet its burden here, the Department must substantiate the costs it actually
incurred to make copies of the requested records. The Department, in its original
response, did break down the required fees by separately stating the copying and
postage costs. But the Department acknowledges that it did not state how many
pages of records it was providing in response to each of the Appellant’s requests,
meaning the Appellant did not know what the cost was to obtain the records. On
appeal, the Department states that the copying costs were ten cents per page, which
is a reasonable fee under the Act. See Friend v. Rees, 696 S.W.2d 325, 326 (Ky. App.
1985). Thus, although the Department failed to substantiate the fees imposes in its
original response, it has substantiated the imposed fees on appeal.4
Regarding its withholding of the “background investigation file” and “polygraph
examinations,” the Appellant argues the Department failed to explain how the cited
exception applied to the requested record, and that it improperly issued a “blanket
denial.” An agency citing an exemption under KRS 61.878(1) must give “a brief
explanation of how the exception applies to the record withheld.” KRS 61.880(1). The
agency’s explanation must “provide particular and detailed information,” not merely
a “limited and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
4
Further, on appeal, the Department acknowledges that it should have informed the Appellant that
it was making paper records available to the Appellant because it does not possess electronic copies of
records. See KRS 61.874(2)(a) (“Agencies are not required to convert hard copy format records to
electronic formats.”).1996). “The agency’s explanation must be detailed enough to permit [a reviewing]
court to assess its claim and the opposing party to challenge it.” Ky. New Era, Inc. v.
City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013); see also City of Fort Thomas v.
Cincinnati Enquirer, 406 S.W.3d 842, 848–49 (Ky. 2013) (noting the agency’s “proof
may and often will include an outline, catalogue, or index of responsive records and
an affidavit by a qualified person describing the contents of withheld records and
explaining why they were withheld”).
In most cases, it is not self-evident from the text of most exemptions how they
apply to records a public agency withholds from inspection. For example, records may
be exempt if they implicate a personal privacy interest that is outweighed by the
public interest in the record. KRS 61.878(1)(a). A public agency invoking this
exemption must explain what the personal privacy interest at stake is, so that it can
be weighed against the public interest in access to the record. See, e.g., 22-ORD-040.
Other exemptions involve multiple types of records, such as “drafts, notes, or
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency.” KRS 61.878(1)(i). Thus,
when a public agency relies on an exemption that can apply to various types of
records, the public agency must describe what record it is withholding, i.e., whether
the record is a “draft,” a “note,” or “correspondence with a private individual.” Still
other exemptions require a public agency to provide specific information to justify
their use. For example, KRS 61.878(1)(h) can be invoked by a law enforcement agency
investigating violations of criminal statutes, but only if the law enforcement agency
explains how “the disclosure of the information would harm the agency by revealing
the identity of informants not otherwise known or by premature release of
information to be used in a prospective law enforcement action.”
Here, KRS 15.4005 states, in relevant part, “The [Act] notwithstanding, the
[Peace Officer’s] background investigation, . . . and polygraph examination shall not
be subject to disclosure.” KRS 15.400(3). Thus, this exemption is unique because it
categorically exempts a peace officer’s “background investigation” and “polygraph
examination.”
Here,
Appellant
requested
three
individuals’
“background
investigation file” and “polygraph examinations.” The Department’s denial quoted
KRS 15.400(3), which makes those records categorically exempt under the Act.
Therefore, the Department’s explanation for the denial of the request was adequate.
Accordingly, the Department did not violate the Act.
5
KRS 15.400 is incorporated into the Act by KRS 61.878(1)(l).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
#135, 136, 137
Distributed to:
Saeid Shafizadeh
Julee Snyder, Administrative Assistant, Shelbyville Police Department
Bruce W. Gentry, Shelbyville Chief of Police
Steve Gregory, Shelbyville City Attorney
Troy Ethington, Mayor, City of Shelbyville