Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Juvenile Justice violated the Open Records Act in responding to Sally Wasielewski's August 26, 1998, request to inspect various records relating to the revocation of supervised placement hearings authorized by KRS 635.100. For the reasons that follow, we find that the Department did not fully comply with the Act in its response.
Ms. Wasielewski's August 26 request was transmitted by facsimile. In it, she asked that she be permitted to inspect policies, procedures, administrative regulations, and protocols governing KRS 635.100 revocation hearings generally, and as they pertain to the selection of employees, independent contractors, "or others" who conduct the preliminary and administrative hearings. Additionally, she requested access to "form documents (correspondence, checklists, summary forms, charts) used by or created by DJJ" for revocation hearings. In closing, Ms. Wasielewski indicated that she would be in Frankfort, where the Department's offices are located, on Friday, August 28, and that she could "stop by to pick up any materials . . . available." Alternatively, she agreed to await a response "within the statutory time."
In an e-mail response dated September 3, 1998, Raymond DeBolt, general counsel for the Department of Juvenile Justice, advised Ms. Wasielewski that she could "at anytime convenient to [her], examine any and all policies & procedures, and any related forms, that exist." He explained that the delay in responding to her faxed request was occasioned by the loss of that request. Although he received a hard copy of the request on August 31, he "assumed that it had been taken care of since it referenced [her] presence here on the 28th." It is from this response that Ms. Wasielewski appeals, questioning whether "'come on down and look' is a good faith response to this request . . . when [the agency] has neither admitted nor denied having any of the items requested," and whether an e-mail response is sufficient under the statute. The answer to both of these questions is, in our view, a conditional no.
We begin by analyzing the content of the department's response. In previous decisions, this office has addressed the question of how specific a public agency must be in responding to a request for records under the Open Records Act. Resolution of this issue, in general, turns on the specificity of the request. In OAG 91-101, we held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested records exist. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The University's response neither admitted nor denied the existence of the minutes. We concluded that unless the University was unable to determine whether the minutes exist by virtue of the requester's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.
In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record or records, we held that the city's general denial was appropriate. At page 3 of that decision, we observed:
Because [the requester] did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. It was enough, in our view, to advise him that no particular record exists. To paraphrase an earlier open records decision, [the requester's] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
Citing OAG 91-58, p. 4. "To require an unequivocal [response to] a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3.
Ms. Wasielewski requested access to:
1. All policies, procedures, administrative regulations, protocols governing the revocation of supervised placement hearings authorized by KRS 635.100 and other statutory authority.
2. All policies, procedures, administrative regulations, protocols governing which employee(s), independent contractors, or others may be assigned or selected for the duties of conducting the preliminary hearing and the actual hearing referenced in para 1 of this request. If there is a job category ("hearing officer") which governs this please identify it.
3. All form documents (correspondence, checklists, summary forms, charts) used by or created by DJJ pertinent for the above proceeding, such as Notice of Violation, Notice of Place and Time for hearing; Summary of Findings; Conclusions on review by the Commissioner; logs used to record the proceedings, including audiotape logs.
Although she couched her request in terms of "all" responsive records, Ms. Wasielewski narrowed its scope by identifying a specific subject, namely "revocation of supervised placement hearings authorized by KRS 635.100." This request was sufficiently specific, in our view, to warrant an unequivocal response. Mr. DeBolt responded by advising Ms. Wasielewski that she could "examine any and all policies & procedures, and any related forms, that exist." Consistent with the principle that a public agency must "make a good faith effort to conduct a search using methods which can reasonable be expected to produce the records requested" set forth in 95-ORD-96, we find that the Department of Juvenile Justice is obligated to locate all records which are responsive to Ms. Wasielewski's request, and to advise her if any portion of her request cannot be honored because no responsive records exist. It must then make the responsive records available to her for inspection. Only then will the department have fully satisfied its obligations under the Open Records Act.
We turn now to the issue of the manner in which the department's response was communicated. As noted, Ms. Wasielewski submitted a written request by fax. The department responded some six working days later by e-mail. Ms. Wasielewski questions whether such a response "is sufficient under the statute."
This is an issue of first impression for the Attorney General, and there is little to guide us in resolving it. The obvious starting point for our analysis is the statutory provision governing agency response to an open records request, namely KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This provision does not specify the method of transmission by which an open records response must be communicated. Compare KRS 61.872(2) (an application to inspect public records "shall be hand delivered, mailed, or sent via facsimile to the public agency" ). Nevertheless, we believe that the phrase "notify in writing" is commonly understood to mean to give notice by committing words to paper and transmitting them by ordinary means of communication, i.e., by mail. We find no authority in the statute, express or otherwise, for an agency's discharging this duty by e-mailing the response in lieu of a standard written response. Applying the rule of statutory construction codified at KRS 446.080(4), we find that until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests, we must construe the phrase "notify in writing" according to common and approved usage of that language.
This decision should not be construed to undermine "public confidence in the integrity and reliability of electronic records." KRS Chapter 369 § 1. In 1998, the General Assembly enacted legislation aimed at promoting confidence in records "generated, communicated, received, or stored by electronic means. . . ." Id. at § 2. Chief among the provisions of this new act is the as yet uncodified provision which states:
Nothing in . . . this Act shall be construed to:
While we find that the parties (meaning the requester and the public agency) may enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by e-mail, we do not believe that an agency can unilaterally elect to respond to a request in this fashion. Accordingly, we find that absent Ms. Wasielewski's agreement to accept the Department of Juvenile Justice's response electronically, the department did not comply with KRS 61.880(1) in communicating its response by e-mail. Consistent with the principles set forth above, the department is directed to immediately issue a written response to Ms. Wasielewski's request advising her which, if any, of the records identified in her request cannot be furnished, and to then make available for her inspection all records which are responsive to her request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.