Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The issue to be considered in this appeal is whether the Kentucky Transportation Cabinet violated the Open Records Act in responding to requests for information from Middlesboro Daily News staff writer Stephen Woodward. For the reasons that follow, the Cabinet did not violate the Act.
The following chronology is taken from the September 16, 2009, letter initiating this appeal, along with the attachments thereto. On or about August 21, 2009, Mr. Woodward telephoned Department of Highways District 11 in Manchester, Kentucky, "seeking comment and information" about "safety concerns in a Bell County school zone." He spoke to Public Information Officer Jonathan Dobson, who said "he would get back to [Mr. Woodward] with information because the issue would need to be researched by his office."
On August 24, 2009, Mr. Woodward sent Mr. Dobson a follow-up e-mail, to which Mr. Dobson replied that he would need "3-5 days to gather the accident data and traffic counts." Mr. Woodward e-mailed again on August 28 and Mr. Dobson told him the traffic counts should be available on August 31. On September 1 Mr. Woodward again e-mailed and Mr. Dobson explained certain staffing problems concerning the employees who were gathering the data and further advised that "some data has to be procured from the KSP" (Kentucky State Police, a department of the Justice and Public Safety Cabinet).
On September 8, 2009, Mr. Woodward received a traffic count and three-year accident report that the Department of Highways had obtained from the KSP, but he considered "that report ? noticeably incomplete." On September 11, he "finally received an official comment addressing the issue." He complains in his appeal that the Department of Highways intentionally omitted information about a fatality in March 2009 that was documented in a traffic report Mr. Woodward had obtained from the Bell County Sheriff's Office. His appeal claims that "the Dept. of Highways purposefully exceeded [sic] Kentucky's Open Records Act and omitted a fatality from the accident report because they knew the article was not going to look favorably on them."
The Transportation Cabinet responded to this appeal on September 23, 2009, via a letter from Senior Counsel J. Todd Shipp, who argues that the Open Records Act does not require public officials to respond to requests for comment from the media. He further states as follows:
It appears this matter began with a telephone call from Mr. Woodward to P.I.O. Dobson at the District 11 Office in Manchester. This is non-compliant with the Open Records Law. Requests must be in writing and reasonably identify the record(s). As you can see from Mr. Woodward's e-mail of August 24, 2009 to P.I.O. Dobson, he was asking for comment, not records. His exact words were "will you or Mr. Callebs be able to comment on the site specifically." (emphasis added) He did not ask at any time in writing for specifically described records.
Mr. Shipp also contends that even if the Open Records Act were properly invoked, the explanation for the delay given by Mr. Dobson was sufficiently detailed to comply with KRS 61.872(5) and, moreover, the Transportation Cabinet would not have been obligated to procure records for Mr. Woodward from an outside agency such as the KSP. He also advises that Mr. Dobson was not a records custodian, but a public information officer. Finally, he explains that the March 13 fatal accident "was not on the Kentucky State Police Collision Analysis website as of September 21, 2009. The Bell County Sheriff is responsible for submitting such data" to the KSP.
We agree that Mr. Woodward's telephone and e-mail communications were not sufficient to invoke the provisions of the Open Records Act. KRS 61.872(2) states as follows:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
This office has previously noted that "e-mail is not a permissible method of delivery under the Open Records Act. " 09-ORD-116, n. 2. Nor do we find that the Cabinet waived the delivery requirement by its responses, since Mr. Woodward's requests for "comment and information," which did not "describ[e]" any "records to be inspected, " did not constitute a request within the scope of KRS 61.872(2).
As noted in previous decisions of this office, requests for information are outside the scope of open records law and an agency is not obligated to honor a request for information under the law. 02-ORD-88; KRS 61.870 et seq. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 02-ORD-165, the Attorney General recognized that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." Id., p. 4 (quoting 96-ORD-251). Although Mr. Dobson voluntarily made efforts to locate records that would be helpful to Mr. Woodward, we conclude that no proper request for records was initiated by Mr. Woodward. Accordingly, the Open Records Act is not applicable and we need not consider the defenses raised by Mr. Shipp under other provisions of the Act.
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.