As Kentucky rolls out a 2019 law requiring state and local agencies to accept open records requests submitted by email for the first time in the law's forty-plus year history, two federal agencies are notifying requesters that emailed Freedom of Information Act requests will no longer be accepted.

The Federal Bureau of Investigation and the Environmental Protection Agency now direct Freedom of Information Act requesters to their e-FOIA portals. Requesters are quick to point out that web portals place undue restrictions on users, including character limits — 3000 characters in the FBI's case — and are "just a tad creepy" in requiring users to indicate whether they are filing from inside or outside the United States.

The only alternative to use of the agencies' web portals is submission of FOIA requests by U.S. Mail.

Not surprisingly, the new requirements have drawn harsh criticism.

Meanwhile, we are hearing the first rumblings of potential problems with the newly enacted requirement in Kentucky's law that agencies accept emailed requests.

SB 230, sponsored by Senator Wil Schroder, R-Wilder, unanimously passed out of both chambers in the 2019 legislative session. It was widely viewed as a long overdue step forward in Kentucky's open records law.

It provides that a state or local agency records 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."

The new law did not eliminate or modify the existing signature language.

In the past, this was the sticking point for many agencies and their legal pretext for denying emailed requests. The issue emerged in a recent Twitter debate when a Northern Kentucky prosecutor questioned a WDRB reporter's use of an "unsigned" email to transmit his records request.

Only a hyper-technical reading of the new law would support a legally authenticated signature "requirement". That "requirement" was effectively abandoned in 1994 when the law was first amended to permit submission of open records requests by fax.

At best, faxed requests contain an image of a signature and not an actual signature. Emailed requests take us another step away from a legally authenticated signature.

The clear goal of Sen. Schroder's bill was to eliminate unnecessary impediments to access and promote ease of use of the laws. Agencies disserve that purpose if they question and/or reject emailed open records requests because they do not contain a signature.

Since the language of the statute is permissive — "the official custodian *may* require written application, signed by the requester" — let's hope they don't get hung up on technicalities. Custodians are not required to obtain signatures and should, therefore, accept "unsigned" emailed requests in the same manner that they have been accepting "unsigned" faxed requests since 1994. The requester's name, "printed [typed/keyed in] legibly," should suffice.

Final resolution of this issue will most likely have to come from the attorney general, the courts, or the legislature.

As for the new federal policies that forbid emailed requests and require use of agency web portals, it's only a matter of time before problems with these systems — including those already identified — emerge, and the federal agencies are forced to revise them.