Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in failing to respond to Bruce M. Tyler's records requests. For the reasons that follow, we find that because the email address to which Mr. Tyler's requests were directed was incorrect, and those requests therefore undeliverable, the University did not violate the Act in its failure to respond.
In an emailed transmission dated March 4 and addressed to adkosh01gwise@louisville.edu. , Mr. Tyler requested copies "from [his] records," of "Bate numbers 023932 to 02390 . . . ." In a transmission to "Attorney Angela Koshewa" dated March 10, but containing no transactional information, Mr. Tyler requested:
The records, budget, and programs of the annual Black Family Conferences under Dr. Joseph McMillan . . . and speakers and fees paid to them from 1985 to 2008 . . . . [T]he records and programs and names and fees from speakers by the Pan African Studies Department for the same period, the University, including the Arts & Sciences Dean's Office, PAS, the Black Family Conferences, . . . and key speakers [, including, but not limited to,] Dr. Maluana Ron Karenga and Dr. Molefi Kete Asante.
Mr. Tyler asked whether his "last request . . . for records on the University Faculty Grievance Committee complaints filed recently on the last several years and the names and complaint issues under the . . . Committee system or related bodies." (Sic.)
By letter dated April 7, 2009, the University of Louisville responded to Mr. Tyler's appeal through University Counsel Angela D. Koshewa. Ms. Koshewa explained that the email address to which Mr. Tyler directed his requests, adkosh01gwise@louisville.edu, was "incorrect" and that his requests therefore did not reach her. Ms. Koshewa provided this office with instructions on how to make an open records request, located on the University Archives website, that included "clicking" to go to an email open records request form. She observed:
Dr. Tyler did not elect to use these methods. Dr. Tyler, as an employee of the University, also has a groupwise e-mail account. The groupwise directory contains my e-mail address and fax number. Also in the groupwise system if one typed "Koshewa" in the "To" box, my full name and address appear. All requests which are being received by me and [Sherri F. Pawson] in University archives are being processed appropriately according to the applicable law.
Although it is unclear why Mr. Tyler was not automatically notified that his misaddressed requests were undeliverable, our unsuccessful attempts to reach Ms. Koshewa at the incorrect address he used confirm the University's position.
On April 15, 2009, this office attempted to transmit an email message to Ms. Koshewa at "adkosh01gwise@ louisville.edu. " As noted, this was the email address to which Mr. Tyler directed his requests. Within seconds, this office received a message from the system administrator indicating that "[t]he email system was unable to deliver the message" and that the "recipient address [was] rejected." (Copy enclosed. ) Subsequent attempts to contact Ms. Koshewa by email at "adkosh01@gwise.louisville.edu" were, on the other hand, successful. (Copy enclosed. ) Because Mr. Tyler's requests did not reach the University, we find that it did not violate the Open Records Act.
In so holding, we note that this is not a case in which "government officers . . . 'bur[ied] their heads in the sand' to public matters with which they were charged."
Baker v. Jones, 199 S.W.3d 749, 751 (Ky. App. 2006). Indeed, the Archives website suggests a variety of ways in which an open records request may be submitted to Ms. Koshewa as the University's official custodian of records, 1 including mail, fax, email, or hand delivery, and provides all pertinent contact information. In Baker, the court rejected the government officer's assertion that because she was not personally served with the request, and therefore never saw it, she had no obligation to respond. The court admonished the officer that "delivery to [her] office . . . was sufficient to trigger her obligation . . . to comply with the requirements of the Open Records Act. " Id. In the appeal before us, Mr. Tyler's requests were not delivered to Ms. Koshewa's email account by virtue of the fact that he used an incorrect address. The University's obligation to comply with the requirements of the Open Records Act was not triggered, and no error can be assigned to it. Compare 09-ORD-058 (Education and Workforce Development Cabinet violated KRS 61.880(1) when it failed to respond to a misdirected open records request that, nevertheless, reached its Unemployment Appeals Branch).
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.
Distributed to:
Bruce M. TylerAngela D. Koshewa
Footnotes
Footnotes
1 Ms. Koshewa succeeds Dr. William Morison as the University's Official Custodian of Records. Dr. Morison ably served the University in this, and many other roles, from the inception of the Open Records Act to the present, and his service is worthy of recognition.