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UK violated Kentucky Open Records Act over request for emails and texts, Attorney General rules

Posted at 11:59 AM, Oct 17, 2022
and last updated 2022-10-17 11:59:38-04

LEXINGTON, Ky. (LEX 18) — The University of Kentucky has violated Kentucky's Open Records Act by failing to respond to portions of a request for copies of emails and text messages, according to a ruling by Attorney General Daniel Cameron on Thursday, October 13.

Charlotte Flanary, who works in compliance for the Kentucky Democratic Party, made the open records request on September 7, 2022. In the request, Flanary requested electronic copies of all e-mails and text messages exchanged between the UK Head Coach Mark Stoops or Associate Head Coach Vince Marrow and two "private individuals." The open records request also asked for "any tweet, quote tweet, or retweet" on the University's official Twitter account from Stoops or Marrow that related to a specific person. The scope of the request included any communications "sent on behalf of the individuals named."

The University responded by saying the request for all emails was "too broad" and that it was unclear what exactly Flanary was wanting from the open records request. As a result, the University didn't address her request for emails unless she specified the timeframe for which she believed the communication took place and specific search terms. The University also didn't respond to her request for text messages or tweets.

Flanary responded by saying she didn't have to narrow the scope of her request because she was requesting specific emails from individuals she identified. The University responded by saying they didn't deny the request but asked for a specific timeframe and subject so they could "conduct the appropriate searches." This appeal followed.

In this case, Cameron says the University violated Kentucky's Open Records Act for not responding to portions of the request within the five business days provided under state law. The University responded to her request for emails but did not respond to her request for text messages and Twitter postings.

Also, during the appeal process, the University reiterated that they did not deny the request for emails but asked narrow the scope of her request before responding. However, the ruling states that the University didn't explain how the request was unclear.

"Under KRS 61.872(3)(b), a public agency must provide copies of records to a requester who resides or works in a different county 'after he or she precisely describes the public records which are readily available within the public agency,'" according to Attorney General Cameron's ruling. "Here, [Flanary] requested specific types of communications sent by or on behalf of two specific employees to two other specific private individuals. This is a sufficiently precise description to identify the requested records."

Cameron states in the ruling that the University said it would "respond in a reasonable period" after Flanary narrows her request, but Cameron rules that she has already declined to do that. Therefore, the University has "a duty to respond in a timely manner to the request as framed."

The University may need more than the five business days provided to respond to the request, depending on the number of records, according to the ruling.

"Alternatively, such a broad request might carry the risk of implicating so many responsive records that the request could become unreasonably burdensome under KRS 61.872(6)," Cameron's ruling states. "But the University did not deny the [Flanary's] request on that basis, and her request nevertheless precisely describes the records sought."

Cameron's ruling says a public agency may have grounds to deny an unreasonably burdensome request, but it doesn't mean the public agency is excused from "determin[ing] within five (5) [business] days ... whether to comply with the request" and "notify[ing] in writing the person making the request, within the five (5) day period, of its decision."

"Accordingly, the University subverted the intent of the Act, short of a denial of inspection, when it demanded that the Appellant narrow her request before the University would 'determine ... whether to comply' and issue its written decision," according to the ruling.

The University can appeal the decision by sending it to the appropriate circuit court within 30 days from the date of the decision (October 13).

University of Kentucky spokesperson Jay Blanton said the University is reviewing the opinion before commenting further.

"However, to clarify, the issue we raised is regarding being able to narrow the request so that we could gather the appropriate records and respond," said Blanton. "We are committed [to] transparency on these matters. We were simply asking to narrow a very broad request and, in fact, had responded to a similar, but narrower request, recently from another media outlet."