25-ORD-404 – Jason Kremer/Northern Kentucky Water District

Opinion Content:

December 16, 2025

In re: Jason Kremer/Northern Kentucky Water District

Summary: The Northern Kentucky Water District (“the District”)
violated the Open Records Act (“the Act”) when it denied a request for
records under KRS 61.872(6) without proving by clear and convincing
evidence that repeated requests were intended to disrupt other essential
functions of the District.

Open Records Decision

On October 24, 2025, Jason Kremer (“Appellant”) submitted an eight-part
request for records to the District. 1 The District timely denied the request, asserting
under KRS 61.872(6) that the request was “intended to disrupt other essential
functions of the” District. As support for its denial, the District referenced its
production of 547 pages of records responsive to a previous request submitted by the
Appellant 2 and the continued correspondence the Appellant had directed to the
District and its employees. The District further referenced an allegation of criminal
activity by the Appellant, his complaints about the District that were submitted to
the Public Service Commission, and his threat to submit a complaint about the
District to this Office. This appeal followed.

Under KRS 61.872(6), “[i]f the application places an unreasonable burden in
producing public records or if the custodian has reason to believe that repeated
requests are intended to disrupt other essential functions of the public agency, the

1 Specifically, the Appellant sought: (1) records documenting that “accusations that [he] declined or
refused to communicate with [District] staff; (2) records of phone calls between him and District staff;
(3) records associated with a particular phone call on October 21, 2025, and the name of a District
employee; (4) records documenting “second-follow-ups”; (5) correspondence from the District’s counsel
and records custodian instructing the Appellant to only communicate with him; (6) communications
regarding an alleged theft of the Appellant’s property; (7) communications between the District and
the Public Service Commission regarding the Appellant; and (8) copies of the physical mailing
envelopes associated with his original records request and certain associated information.
2 That request was the subject of 25-ORD-395.

official custodian may refuse to permit inspection of the public records or mail copies
thereof. However, refusal under this section shall be sustained by clear and
convincing evidence.” The “clear and convincing evidence” standard is a difficult
threshold for an agency to meet, as it “requires the party with the burden of proof to
produce evidence substantially more persuasive than a preponderance of evidence,
but not beyond a reasonable doubt.” Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1989).
Thus, the trier of fact “must be persuaded that the truth of the contention is ‘highly
probable.’” Id. (quoting McCormick on Evidence § 340(b), at 796 (2d ed. 1972)).

To determine whether a request is “intended” to disrupt the essential functions
of an agency, the Office considers different factors than those described above. This
exemption requires the agency to provide evidence of factors separate from the
request itself, because the official custodian must have “reason to believe” the
requester’s “intent” is not to inspect records, but to cause disruption. Id. Although it
is difficult for an agency to prove by clear and convincing evidence that a requester
solely intends to disrupt its essential functions, it is not impossible. For example, in
02-ORD-230, intent to disrupt was established by a broadly worded request (“ALL
Richmond District Court Facilities Corporate Records”), coupled with an extensive
history of failure to retrieve requested records and a criminal conviction for harassing
communications directed to city employees. Similarly, in 05-ORD-121, the Office
found intent to disrupt when an individual made an “overly broad and blanket
[request] for previously requested and provided records” and had established a prior
“pattern of conduct” in which he requested “voluminous documents [and] either did
not inspect the records or inspected only a small portion of them.” In 22-ORD-048,
intent to disrupt was proven by a requester’s repeated failure to retrieve records and
requesting copies of all city ordinances, which he knew were temporarily not in the
city’s possession due to an ongoing digitization process. In 15-ORD-015, intent to
disrupt was found when a requester had repeatedly failed to pay for copies of
voluminous records in a timely manner and demanded the agency pay him $500,000
to stop submitting requests. But outside such “extreme and abusive circumstances[,]
it is the legislative intent that public employees exercise patience and long-suffering
in making public records available for public inspection.” OAG 77-151.

Here, the District argues that intent to disrupt is demonstrated by three
factors: (1) “the requests are repetitive and designed to duplicate work”; (2) the
circumstances surrounding the Appellant’s appeals to the Office; and (3) ongoing
disputes between the District and the Appellant before other agencies. The Office will
address each in turn.

First, it does not appear that the Appellant’s two submitted requests are
identical. 3 Although it is likely that there may be an overlap of records that are
responsive to both requests, the Office concludes that the requests, overall, are
substantially unique. Thus, this request is district from 05-ORD-121, in which the
requester had demonstrated a pattern of submitting requests for previously
requested records. Moreover, in 05-ORD-121, the agency demonstrated that the
requester had a pattern of requesting a large number of records and then failing to
inspect the majority of them. The District has not established such a pattern of
conduct by the Appellant here.

The District also refers to the circumstances surrounding the Appellant’s
multiple appeals to the Office. The Appellant has filed three appeals with the Office.
One appeal is final and resulted in 25-ORD-395. The District explains that the
Appellant submitted the appeal that was the subject of 25-ORD-395 before inspecting
the records made available. Although the Office does agree that the submission of an
appeal prior to inspection of the record production can be evidence of an intent to
disrupt, the Office declines to find that this fact, standing alone, constitutes clear and
convincing evidence of the Appellant’s intent to disrupt the District’s functions. This
is because, in 25-ORD-395, the Office found that one portion of the District’s response
had failed to comply with the Act. Given the evident merit of at least a portion of the
Appellant’s appeal, the Office declines to find that the timing of that appeal is
evidence of an intent to disrupt the District’s essential functions.

Finally, the District explains that it and the Appellant have been engaged in
legal proceedings before other administrative agencies that relate to “the same
dispute.” According to the District, the existence of these other proceedings is
evidence of the Appellant’s goal of “forcing unnecessary administrative expenditure
and diverting resources away from essential operations.” 4 However, the Office has
previously found the fact that a requester “has been a critic of” a public agency, 05-
ORD-152, or pursues legal action against the agency, see OAG 89-79, is not clear and
convincing evidence of an intent to disrupt the agency’s essential functions.

In the Office’s prior decisions in which a public agency demonstrated by clear
and convincing evidence that a requester intended to disrupt essential functions of a
public agency, certain common factors can be found. In general, the requesters have

3 A description of the Appellant’s prior request is available at 25-ORD-395 n. 1.
4 Of course, the General Assembly arguably has determined that responding to requests under the
Act is an “essential operation,” insofar as the “free and open examination of public records is in the
public interest” and any exemption from the Act’s disclosure requirements must be “strictly
construed.” KRS 61.871.

exhibited a previous pattern of failure to retrieve, inspect, or pay for voluminous
records after requesting them, coupled with clearly harassing behavior or repeated
requests for the same records. This appeal does not present the same type of evidence
found in 22-ORD-048, 15-ORD-015, 05-ORD-121, or 02-ORD-230. Accordingly, the
Office cannot find that the District has sustained, by clear and convincing evidence,
its claim that the Appellant’s “requests are intended to disrupt other essential
functions of the public agency” within the meaning of KRS 61.872(6). Therefore, the
District violated the Act when it denied the Appellant’s request. 5

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 [email protected].

Russell Coleman
Attorney General

/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Jason Kremer
Tom Edge, Esq.

5 The Office makes no finding regarding whether fulfilling the Appellant’s request would amount to
an unreasonable burden under KRS 61.872(6).