26-ORD-183 – Mike Scogin/Scott County School District

Opinion Content:

April 29, 2026

In re: Mike Scogin/Scott County School District

Summary: The Scott County School District (“the District”) subverted
the intent of the Open Records Act (“the Act”) when it initially failed to
properly invoke KRS 61.872(5). However, the District justified its delay
on appeal.

Open Records Decision

On either March 23 or March 24, 2026, Mike Scogin (“the Appellant”),
submitted an 11-part request to the District. In relevant part, that request sought
“emails, texts[,] or memos among school board members and school board members
and school administration regarding” the matter identified in the request. 1 In a
March 31, 2026, response, citing KRS 61.872(5), the District stated it would produce
non-exempt records on April 10, 2026, because the records “come from different
sources within the [D]istrict” and because the records must be reviewed and redacted
for exemptions such as “FERPA and KRS 61.878(1)(a).” 2 This appeal followed.

Under KRS 61.880(1), a public agency has five business days to fulfill or deny
a request for public records. This period may be extended if the records are “in active
use, in storage or not otherwise available,” but the agency must give “a detailed
explanation of the cause . . . for further delay and the place, time, and earliest date
on which the public record[s] will be available for inspection.” KRS 61.872(5). Under
KRS 61.880(4), a person may 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

1 The remaining 10 parts of the request sought different categories of information. The District
correctly denied this portion of the request as seeking information, not records. The Appellant does
not challenge this portion of the response on appeal.
2 The Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”), is incorporated
into the Act by KRS 61.878(1)(k).

of denial of inspection, including but not limited to . . . delay past the five (5) day
period described in [KRS 61.880(1) or] excessive extensions of time.”

To start, the Appellant claims the District’s invocation of KRS 61.872(5) was
untimely. The Appellant says his request was submitted on March 23, meaning a
response was due on March 30. But District says that, although the request is dated
March 23, it was not received until March 24, making its deadline to respond March
31. As such, there is a factual dispute between the parties regarding when the District
received the request. The Office has regularly found that it is unable to resolve factual
disputes between a requester and a public agency, such as when an agency received
a request. See, e.g., 23-ORD-276. So here, the Office cannot resolve the dispute
regarding when the District received the Appellant’s request.

Turning to the District’s invocation of KRS 61.872(5), its initial response did
not provide a “detailed explanation” for why the District could not timely provide the
requested records. The District’s explanation was that the “records come from
different sources within the [D]istrict” and the records would require redacting
pursuant to FERPA and KRS 61.878(1)(a). However, the District did not estimate the
number of records implicated by request. “A detailed explanation that neither
provides an estimate of the number of records implicated nor explains why such an
estimate is impossible tends not to be detailed enough to allow review of the
reasonableness of the delay.” 25-ORD-244 (noting that “without knowing the number
of records implicated by a request, it may not be possible to determine whether the
delay imposed by the agency is reasonable”). Because the District did not explain how
many records it needed to review and redact, its initial response did not adequately
explain why it could not provide the requested records timely, and therefore,
subverted the intent of the Act.

On appeal, the District provides more detailed facts to justify its delay. Under
KRS 61.880(2)(c), the public agency has the burden of proof to “substantiate the delay
and that it is acting in good faith.” 21-ORD-045. When determining whether a delay
is reasonable under KRS 61.872(5), the Office has considered the number of records
the requester has sought, the location of the records, and the content of the records.
See, e.g., 22-ORD-176; 01-ORD-140; OAG 92-117. Here, the District explains that it
reviewed “over a thousand records and thousands of pages of records” for
responsiveness and then for applicable exemptions. Moreover, the District identified
FERPA as one applicable exemption. The Office has previously recognized that the
law governing confidentiality is a factor in determining whether a delay is reasonable.
See, e.g., 22-ORD-176 (recognizing that a violation of FERPA could result in a loss of
federal funding). Ultimately, the District sought a delay of only eight business days
to review over a thousand records and make mandatory redactions under FERPA.
This delay is reasonable. Therefore, the District has met its burden of proof to justify
its delay in producing records.

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

Mike Scogin, Appellant
Billy Parker, Scott County Schools, Superintendent
Crystal Hord, Scott County Schools, Director of Human Resources
Joshua M. Salsburey, Esq.