To email an open records request, or not to email an open records request? That is the question.

Stated less succinctly: Are public agencies in Kentucky required to accept open records requests submitted by email following passage of SB 230, sponsored by Sen. Wil Schroder (R-Wilder) in the 2019 Regular Session, or did the ambiguously worded amendment actually limit the rights of open records requesters? And was this ambiguity intentional or just bad bill drafting?

The pertinent section of the open records law was last substantially amended in 1994. Prior to 1994, all open records applicants were required to submit their requests by U.S. Mail or hand-delivery. In 1994, lawmakers amended the statute to permit submission of open records requests by fax, thus effectively eliminating the requirement of a "wet" signature — as opposed to a copy of a signature — that appeared in the statute.

Lawmakers did this in 1994 by simply adding the word "facsimile" to the list of permissible modes of transmission: "The application shall be hand delivered, mailed, *or sent via facsimile* to the public agency."

Within a few years, the attorney general recognized that if the requester and the public agency "entered into an express agreement, or consented by a clear course of conduct, to transact their open records business by email," emailed requests were also permissible.

Here again the requirement of a "wet" signature, which still appeared in the statute, was effectively waived.

"Permissive" was, of course, the operable word.

In increasing numbers, public agencies accepted emailed requests, but they retained the option to decline them as long as their policy was uniform and not selective. One basis for refusing an emailed request was the absence of a "wet" signature.

Kentucky took some ribbing for this antiquated position in 2018.

https://www.muckrock.com/news/archives/2018/nov/20/kentucky-snail-mail/

As amended, KRS 61.872(2) now provides:

"Any person shall have the right to inspect public records. The official custodian may require:

(a) Written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The written application shall be hand delivered, mailed, or sent via facsimile to the public agency;

(b) Facsimile transmission of the written application described in paragraph (a) of this subsection; or

(c) E-mail of the application described in paragraph (a) of this subsection[.]"

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750

The signature requirement remains, but email appears for the first time. The Coalition and others celebrated SB 230 as a long overdue step forward for the open records law.

https://www.facebook.com/419650175248377/posts/471933800020014?sfns=mo

But faxed and emailed requests are broken out in the new law in a way that some read to limit, rather than expand, the requester's options. Under this interpretation of the statute, the agency, and not the requester, determines what mode of transmission the requester must use.

If this interpretation is correct, agency acceptance of emailed open records requests is, at best, permissive, and SB 230 accomplished nothing. At worst, the requester's options may be dependent on the agency's "requirement" and, therefore, actually narrower.

Its not just a few naysayers who are advancing this interpretation of the amendment. I first learned of it at a meeting of the County Clerks Association, and it may also be gaining traction with the Kentucky League of Cities. The clear implication was that support for the amendment was contingent on agency acceptance of emailed requests remaining permissive.

The bill summary for SB 230 that appears on the Legislative Research Commission's website states that it is intended to "Amend KRS 61.872 to *allow* application for inspection of records to be by email and fax." The legislative committee meetings at which Sen. Schroder discussed the bill confirm this intent. There was, however, some discussion of that nagging "signature" requirement and the suggestion that nothing in the amendment changes it.

https://apps.legislature.ky.gov/record/19rs/sb230.html

Enter the attorney general.

In an open records decision issued late last week, he analyzed the signature requirement, observing:

"The Open Records Act permits a public agency, when receiving a request for records, to require a '[w]ritten application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.' KRS 61.872(2)(a). The 2019 amendment to KRS 61.872, for the first time, explicitly included e-mail as an authorized means of transmitting an open records request, along with hand delivery, regular mail, and facsimile transmission. KRS 61.872(2)(c).

Although the statute does not define the phrase 'signed by the applicant' as used in the context of e-mailed requests, we believe the term 'signed' should be construed broadly in such cases, so as not to frustrate the normal usage of electronic mail as a method of transmission, which was the clear intent of the 2019 amendment. KRS 446.080(1) provides that '[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature.' In so construing KRS 61.872(2), we take notice of the fact that typed names are commonly used as signatures in e-mail communications, due to the purely electronic nature of the process, as distinguished from letters sent by ordinary mail, hand delivery, or facsimile. Accordingly, we find that [the requester's] typed name was sufficient, in the context of e-mail, for his request to be deemed 'signed' under KRS 61.872(2)."

https://ag.ky.gov/orom/2019/19-ORD-180.doc

In a decision issued earlier in the week, the attorney general included a footnote recognizing that the agency whose actions were appealed, the Kentucky State Police, acknowledged that "effective June 27, 2019, it has an 'obligation to respond' to e-mailed open records requests under KRS 61.872(2). Thus, KSP may no longer continue its former policy of refusing to discuss open records matters by e-mail."

https://ag.ky.gov/orom/2019/19-ORD-175.doc

State and local officials who question whether KRS 61.872(2), as amended in the 2019 Regular Session, obligates them to accept open records requests submitted by email would do well to read these open records decisions. The attorney general's position on this issue is clear, and it is his office which will review this issue when It is presented on appeal.

In the meantime, let's hope that this problem is one of sloppy bill drafting and not intentional deception.