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 Personnel Cabinet, Department for Personnel Administration, violated the Open Records Act in its handling of Scott J. LeCates's request for payroll records of employees of the Department of Vocational Rehabilitation. Mr. LeCates submitted his request on October 28, 1998. Having received no response, he initiated this appeal on November 6, 1998. For the reasons that follow, we find the Cabinet's response was procedurally deficient, but substantively correct.
Shortly after receiving Mr. LeCates's appeal, the Attorney General issued written notification to the Cabinet that an open records appeal had been filed in this matter. The Attorney General indicated that pursuant to 40 KAR 1:030 Section 2 the Cabinet could respond to the appeal, but that its response must be received no later than Monday, November 16, 1998. The Attorney General received no response to the appeal, written or otherwise.
On December 1, 1998, and with the deadline for issuance of a decision in the appeal fast approaching, this office contacted the Personnel Cabinet to ascertain the status of Mr. LeCates's request. Department of Personnel Administration Commissioner Joan Walker, who was familiar with the request, advised us that it had been forwarded to the Cabinet's office of legal services, where all open records requests are processed. We then contacted the office of legal services. In a conversation with Daniel F. Egbers, general counsel, we learned that Mr. LeCates's request had been misfiled, but that our notification was received. Mr. Egbers stated that on November 23, he e-mailed the Cabinet's response to Charles Wells, Director of the Kentucky Association of State Employees, Mr. LeCates's employer. We asked that Mr. Egbers furnish us with a copy of that response, the full text of which follows:
In response to your inquiry concerning records involving the Mercer Consulting Group, health care and Kentucky Kare, please be advised that the Personnel Cabinet does not have any documents or records that meet the description you gave. I have identified records that Chris Dyke described with respect to the RFP for the Hay group and these may be inspected at my office by appointment. Due to the volume involved, I suggest that the inspection identify records to be copied. We do not have payroll listings of Department of Vocational Rehabilitation employees who worked at least 40 hours, or were scheduled to do so during the last year. If such records exist, I assume that they would be in the custody of the Workforce Development Cabinet. I apologize for the delay in getting back to you on these issues. I had inadvertently misfiled your requests. Please advise if you have any questions concerning these matters.
Within the hour, Mr. Wells acknowledged Mr. Egbers's response by e-mail, indicating that he would forward the response to Chris Dyke, who is also an employee of KASE. Neither Mr. LeCates nor the Attorney General were notified of this exchange.
The Personnel Cabinet violated KRS 61.880(1) in its handling of Mr. LeCates's request. 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.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 858 (1996). It also requires a timely, written response directed to the person making the request. To date, Mr. LeCates has received no response to his request. The response which the Cabinet did, in fact, issue was delinquent by seventeen business days. This violation is exacerbated by the fact that the Cabinet was notified on November 9 that Mr. LeCates had appealed its failure to respond to his request. Another nine business days would elapse before the Cabinet issued a response, and, as noted, neither Mr. LeCates nor this office received a copy. Assuming Mr. LeCates was advised of the Cabinet's position, through Mr. Wells or Ms. Dyke, he was, nevertheless, forced to wait almost a full month to learn that the Cabinet is not the custodian of the records he seeks, and that he must redirect his request to the Workforce Development Cabinet. We trust that this violation of KRS 61.880(1) represents an aberration from standard practice in the Cabinet's office of legal services, but urge that office to review the cited provision to insure that future responses conform to the Open Records Act. 1
Substantively, we find no error in the Cabinet's response. Mr. Egbers stated that the Cabinet does not have custody of payroll listings of Department of Vocational Rehabilitation employees who worked at least forty hours, or were scheduled to do so during the last year. He indicated that if such records exist, they are in the custody of the Workforce Development Cabinet. KRS 61.872(4) does not require more. 2 As noted, however, this response should have been directed to Mr. LeCates within three days of receipt of his 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.
Footnotes
Footnotes
1 We also note that the Cabinet's use of electronic mail to respond to an open records request may be problematic. In 98-ORD-167, we held that unless the parties (meaning the requester and the public agency) enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by e-mail, an agency must "give notice by committing words to paper and transmitting them by ordinary means of communication, i.e., by mail." 98-ORD-167, p. 5. Although Mr. Wells acknowledged Mr. Egbers' response by e-mail, it is unclear whether Mr. LeCates consented by his course of conduct, to receipt of an e-mail response.
2 KRS 61.872(4) provides that "if the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."