26-ORD-099 – Valerie Frost/City of Winchester

Opinion Content:

March 16, 2026

In re: Valerie Frost/City of Winchester

Summary: The City of Winchester (“the City”) violated the Open
Records Act (“the Act”) by failing to provide a detailed explanation of the
cause for its delay in providing the requester with copies of any
responsive and nonexempt records as required under KRS 61.872(5).

Open Records Decision

On January 21, 2026, Valerie Frost (“the Appellant”) submitted a request to
the City for “copies of records held by the City Manager’s Office relating to the
submission, receipt, routing, or intake of an Open Records Request concerning me,
Valerie Frost, that was stamped or recorded between the years of 2022-2026.” In
particular, she requested “any and all system-generated metadata or logs associated
with the Open Records Requests.” 1

If no such “time-based metadata exists,” the Appellant requested the City to
“please confirm in writing: 1. whether the absence of timestamps is due to system
configuration, record-retention policy, or manual practice; and 2. identify the
system(s) used by the City Manager’s Office to receive and process Open Records
Requests.” 2 That same day, the City Clerk confirmed receipt of the Appellant’s
request but stated, “Please be advised that I do not know how to get this information

1 This portion of the request included: (1) “server logs or backend submission records”; (2) “email
headers or routing metadata”; (3) “intake platform or portal records”; (4) “workflow, ticketing, or
tracking system entries”; or (5) “any other electronic records reflecting date and time of receipt or
processing.”
2 The Act does not require a public agency to compile information, respond to questions, or create a
record to comply with a request. See Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013)
(“The [Act] does not dictate that public agencies must gather and supply information not regularly
kept as part of its records[.]”).

but will try. It will take longer than the normal five business days to process your
request.” 3

On February 9, 2026, the Appellant requested an update regarding the status
of her request, and the City Clerk responded that she was “still in the process of
recovering data” and that she had been “out of the office due to weather.” Having
received no final response on behalf of the City, or any records, the Appellant sent an
email to the City Clerk on February 17, 2026, stating, “It has now been well beyond
five (5) business days since my request was submitted. While you indicated that
additional time would be required, no specific statutory basis for delay or date certain
for production has been provided.” This appeal followed.

Under KRS 61.880(1), a public agency must determine within five business
days whether to grant a request for public records or deny it and notify the requester,
in writing, of its decision. A public agency is permitted to extend the period for
production of the records under KRS 61.872(5), but only if the records are “in active
use, in storage or not otherwise available,” and the agency provides “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.”

Under KRS 61.880(4), “If a person feels the intent of [the Act] is being
subverted by an agency short 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,” the person may complain in writing to the Office, “and the
complaint shall be subject to the same adjudicatory process as if the record had been
denied.” Here, the City complied with KRS 61.880(1) insofar as it sent a written
response within five business days, but it neither granted or denied the request
within that period nor satisfied the requirements of KRS 61.872(5). For this reason,
the City’s initial response violated the Act.

In light of KRS 61.872(5), however, the Office has consistently recognized that
persons requesting large volumes of records may “expect reasonable delays in records
production.” 12-ORD-228. The reasonableness of such a delay “is a fact-intensive
inquiry.” 21-ORD-045 (noting that the Office considers “the number of the records,

3 Under KRS 83A.085(3)(b), the City Clerk is charged with “[p]erformance of the duties required of
the ‘official custodian’ or ‘custodian’ in accordance with KRS 61.870 to 61.882.” KRS 61.870(5) defines
“Official Custodian” as “the chief administrative officer or any other officer or employee of a public
agency who is responsible for the maintenance, care and keeping of public records, regardless of
whether such records are in his actual personal custody and control.” On the other hand,
KRS 61.870(6) provides that “‘Custodian’ means the official custodian or any authorized person having
personal custody and control of public records[.]”

the location of the records, and the content of the records” when “determining
whether a delay is reasonable”).

Here, the City did not initially estimate the volume of records implicated, nor
did it indicate on appeal that volume was a factor in delaying access to any existing
records; likewise, the City failed to provide information regarding the location or
content of such records. The City’s only explanation was its initial response
acknowledging it was “behind” in processing the request and noting its offices were
“closed for two days due to weather” and that the City Clerk had been “out of the
office a lot lately due to illness in my family.” The City Clerk also explained she “has
no IT, so I’m checking with the people that work on our computers [to determine] if
they can get the information that you are requesting. . . . I do not know anything
about intake logs, databases or tracking systems or how the City’s electronic
submission system works. All of that was set up before my time as [the records
custodian].” 4

None of these reasons justify the ongoing delay in either providing the
Appellant with copies of any existing, responsive, and nonexempt records or, in the
alternative, properly invoking KRS 61.872(5) by explaining in sufficient detail the
legally permissible reasons for delaying access to any such records and the specific
date by which the City will make the records available. Rather, the Office has
consistently recognized “the absence of an agency’s official records custodian does not
alleviate the agency of its duty to determine within five business days whether it will
grant or deny a request.” See 09-ORD-091 (statutory period for a response “cannot be
extended to accommodate the schedules of agency staff”); 02-ORD-165 (“If the records
custodian goes on vacation, or is unable to attend to his duties because of illness, or
an accident, the agency is obligated to designate another person to review and handle
open records requests in the absence of the regular custodian of the records[.]”); 23-
ORD-157. Furthermore, “even if weather conditions were a proper basis for delay
under KRS 61.872(5),” the City has advised it was only closed for two days because
of inclement weather, and the City did not otherwise comply with KRS 61.872(5) by
providing a detailed explanation. 21-ORD-076.

In all instances, a public agency bears the burden of justifying its action.
KRS 61.880(2)(c); KRS 61.880(1); 24-ORD-063. Based on the limited information
provided here, the City has not met its burden of proof to justify the ongoing delay in
providing the Appellant with copies of any existing, responsive, and nonexempt
records or affirmatively stating which records, if any, the City does not possess.

4 The City Clerk provided a timeline of the correspondence between the City and the Appellant,
including copies of emails relating to previous requests by the Appellant. However, the City did not
provide any further explanation of its position or context in which to view the correspondence it
provided, none of which alters the relevant legal analysis or the conclusion that it violated the Act.

Accordingly, the City subverted the intent of the Act within the meaning of
KRS 61.880(4).

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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/ Michelle D. Harrison
Michelle D. Harrison
Assistant Attorney General

Valerie Frost, Appellant
Joy Curtis, Winchester City Clerk
JoEllen Reed, Mayor of Winchester
William Dykeman, Winchester City Attorney