Fayette County

AG: Lexington violated Open Records Act

The Kentucky attorney general's office has ruled that Lexington's Urban County Council violated the Open Records Act when it denied District 2 write-in candidate Randy Tobia's request for e-mails sent to and from District 2 Councilman Tom Blues' city e-mail address.

"Although Mr. Tobia's request was broad in scope, the council failed to demonstrate the existence of an unreasonable burden in producing the requested records, by clear and convincing evidence, and its denial therefore constituted a violation of the Open Records Act," the attorney general's office wrote in its ruling.

Tobia could not be reached for comment.

The city has no comment on the ruling, said Susan Straub, Mayor Jim Newberry's spokeswoman.

It's unclear whether the city plans to appeal the ruling to Fayette Circuit Court.

On Sept. 22, Tobia filed an open records request with the council asking for all of Blues' e-mails since he took office on Dec. 31, 2006. Tobia also requested any "memos, e-mails, notes and logs to and from Tom Blues and any city/county attorney."

Vicki Steele, the council's records custodian, denied Tobia's request on the basis that the attorney general had previously stated that the documents being requested must be identified with a "reasonable particularity" and that any attempt to fulfill Tobia's request would require innumerable employee hours.

The attorney general's office has recognized an agency's "general right to deny a request" that was not specific, but after a 2008 Kentucky Supreme Court opinion in the case of the Department of Corrections v. Chestnut, "no such requirement can be read into the law," the attorney general's office said.

In Department of Corrections v. Chestnut, the Supreme Court said that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden."

Tobia requested official records that are required to be retained permanently and the general correspondence retained for two years, the attorney general said. "The council offers no estimate of the volume of records implicated by the request, where or how those records are stored, or the difficulties associated with retrieval, review and redaction of the records."

The council's assertion that fulfilling Tobia's request would require uncountable hours "is no evidence at all" the opinion said.

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