On the flip side, the attorney general's merit staff issued a separate decision last week in which the staff correctly determined that the Kentucky Department of Education violated the open law when it failed to issue a proper and timely response to an open records request for staff timesheets in electronic format for a three month period and emails "to and from the Commissioner" containing the word "sick" for a period of less than a year.
https://ag.ky.gov/orom/2019/19ORD151.doc
The merit staff also determined that DOE subverted the intent of the open records law, under KRS 61.880(4), by attempting to impose copying fees for hard copies of records requested (and maintained) in electronic format.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
DOE promptly responded to the March 15 request in a letter containing what the staff characterized as "boilerplate" language referencing "substantial records located in voluminous files [that] require review for possible redaction or exemption pursuant to KRS 61.878."
The attorney general's staff properly recognized that the open records law requires "not merely a perfunctory acknowledgement" but instead requires "a substantive disposition" within the three day statutory deadline for agency response.
The open records law mandates production of nonexempt public records on the third business day after receipt of the request *or* a written response detailing the reasons for delay beyond three business days and identifying the earliest date the records will be available.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48750
Quoting a 2011 open records decision, the staff noted that the use of "boilerplate language that is in no way correlated to a particular request is an unacceptable practice that violates" the law.
Turning to the issue of copying fees, the staff determined that DOE subverted the intent of the open records law by attempting to impose fees for copies of records in paper form in spite of the fact that he requested the records in electronic format.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23061
Because the requester did not provide an email address, the staff offered several alternatives to electronic transmission of the records by email including providing the requester with a link to an online storage location or mailing him copies on a compact disc, flash drive, or other physical storage device (and recovering the cost of the device plus postage).
It's interesting to note that the unspecified problems associated with production of e-mail containing the word "sick" proved to be exaggerated. After the requester filed his appeal, DOE determined that no responsive emails existed because no emails subsequently located were generated in the three month period identified in the request.
This open records decision reflects a proper resolution of the records access issues presented. It is appropriate to hold agencies to the strict letter of the law since "statutes enacted for the public benefit must be construed most favorably for the public."
