There are two important takeaways from last week's open records decision issued by Kentucky Attorney General Daniel Cameron reported below.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-0…

The first involves the necessity of a formal open records request by a public official for the records of the agency s/he serves.

The second involves the clearly unsettled status of emailed open records requests and public agencies' duty to accept them.

In January, Fayette County School Board member Tyler Murphy emailed a request for district records, including the contract with Strothman & Company for auditing services beginning with the 2019-2020 fiscal year, approved by the Board of Education in December, 2019.

Murphy also requested copies of the proposals submitted by Strothman and a competing company and the evaluation criteria and score sheets used in awarding the contract.

The district refused Murphy's emailed request.

Murphy subsequently hand-delivered his request. The district thereafter denied him access to the score sheets, characterizing them as "preliminary" records.

The Attorney General correctly rejected this claim. He concluded that "[i]n choosing the audit firm based on the composite scores presented, the district necessarily 'adopted' the work of the evaluation committee, including the individual scores of each member of that committee." The score sheets lost their preliminary status and were accessible to the public and board member Murphy.

But why should an elected official who serves the agency that possesses the records he seeks be compelled to submit a request for those records in order to discharge his duties?

Ideally, he should not. This is the first takeaway.

The open records law contemplates this situation by providing that the exceptions to the open records law, including the preliminary documents exception invoked by the district, "shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230

(See Subsection (5)).

Murphy has challenged the district on the wisdom of its choice of the same auditor for the past 13 years and clearly not endeared himself to the district on this issue.

But to place him in this arguably adversarial role, and compel him to pursue an appeal to the Attorney General — when his stated goal was to exercise "appropriate due diligence as a board member when making a decision as consequential as approving a contract for auditing services" with a price tag of a half million dollars — may not have been the most prudent course of action.

An adverse ruling by the Attorney General, and resulting negative publicity, could easily have been avoided.

But compounding its error was the district's initial refusal of Murphy's emailed request.

This brings us to the second takeaway and the more frustrating aspect of the open records decision.

In ruling that the district violated the open records law when it denied Murphy's emailed request, the Attorney General noted that the district initially insisted that he was required to fax, mail, or hand-deliver the request.

On appeal, the Attorney General continued, the district "acknowledged that at the time of Murphy's request its open records policy expressly included e-mail as an acceptable means of submitting an open records request" and that it was therefore obligated to accept the emailed request.

It is the *district's policy*, and not state law, that determines whether a requester may submit his request by mail, fax, or hand-delivery, or by fax, or by email. The Fayette County School District violated the open records law not because it refused Murphy's emailed request and was statutorily required to accept it, but because at the time of the request it's policy "included email as an acceptable means of submitting an open records request."

If the district's policy had not included email, it's refusal to accept Murphy's emailed request would have been legal and proper.

For the second time in a month, the Attorney General has construed the 2019 amendment to the open records law as narrowing the available choices for submitting a request contingent on the agency's policy.

https://apps.legislature.ky.gov/record/19rs/SB230.html

In a decision issued on April 6, the Attorney General held that:

"[A] public agency may choose the method of delivery through which it will accept an open records request – whether under subsection [61.872] (a), (b), or (c). But to do so, and to comply with the Act, its rules and regulations must state the 'procedures to be followed in requesting public records.'"

https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-0…

This means that — by adopting agency policy/procedure — the agency can limit the method by which it will accept receipt of an open records request to:

• (a) requests by mail, fax, or hand-delivery *or*

• (b) requests by fax *or*

• (c) requests by email.

Senator Wil Schroder's 2019 amendment to the open records law — which was widely greeted as a long overdue *requirement* that agencies accept emailed requests — actually limits requesters' options based on agency policy/procedure.

And, sadly, the amendment's language supports this interpretation. Attorney General Cameron construes the law according to it's language and not Senator Schroder's stated intent.

An attempt to clarify this confusion by amendment in 2020 ended when the amendment was withdrawn by its sponsor.

https://www.facebook.com/419650175248377/posts/632403250639734/?d=n

So, at best, we broke even as a result of Schroder's 2019 amendment, maintaining the status quo by providing for permissive acceptance of emailed requests. At worst, we have a negative balance as a result of the amendment. We have fewer options for submitting requests depending on agency policy/procedure.

The time has come for Senator Schroder to clarify what his intention was in 2019. If his intention was to require agencies to accept emailed open records requests, he needs to take specific action to amend the statute to reflect that intent.

For now, we must disabuse ourselves of the notion that the 2019 amendment expanded requesters' rights by mandating agency acceptance of emailed requests.

And let's hope, for the future, that the Fayette County School District places fewer impediments in Murphy's—and other open records requesters' — paths.