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 Boone County Public Library violated the Open Records Act in the disposition of James Duvall's emailed request for, inter alia, "access to his email . . . [and] the paper in Cindy Brown's handwriting on which she and [Mr. Duvall] collaborated at [their] meeting 19 August." We find that because Mr. Duvall's request did not satisfy the requirements of KRS 61.872(2), no error can be assigned to the Library for its disposition of the request.
Mr. Duvall initiated this appeal on November 9, 2009, asking that the Attorney General review the Library's response to his records request and "the unethical actions of the Boone County Public Library Board of Trustees." In correspondence directed to this office after Mr. Duvall initiated this appeal, counsel for the Library, Debra S. Pleatman, acknowledged that "KRS 61.872 does not require a specific form for an open records request," but argued that a request "must be at least legally sufficient to put the Board on notice that a request is being made." Because Mr. Duvall's email was captioned "Will the Board grant me a hearing," it was not treated as a records request.
Nevertheless, counsel responded by advising Mr. Duvall that because his "termination was effective September 1, 2009, . . . [he] no longer ha[d] access to [his] email account at the Boone County Public Library." Counsel later characterized Mr. Duvall's appeal as "a dispute about his employment termination, not an appeal of a denial of an open records request," but maintained that both the handwritten note and email account to which he requested access were exempt from disclosure as preliminary records within the meaning of KRS 61.878(1)(i) and (j). Waiving these exceptions, counsel released the handwritten notes to Mr. Duvall but denied him access to his email account, asserting that the account "is currently archived and consists of over 2,500 messages."
Mr. Duvall transmitted his request by email. It did not contain his signature. KRS 61.872(2) states that open records requests "shall be hand-delivered, mailed, or sent via facsimile machine," and that they must be signed by the applicant, with his name printed legibly on the application, [and] describ[e] the records to be inspected." Although he was not required to identify his open records request as such, Mr. Duvall did not satisfy the minimum requirements of the Open Records Act by utilizing one of the statutorily authorized modes of transmission or by signing his request. This office has recognized, on a number of occasions, 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 email, " an agency is not obligated to honor an emailed request. See, e.g., 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090; 06-ORD-018; 06-ORD-086; 07-ORD-033; 07-ORD-105. Because Mr. Duvall's request did not satisfy the requirements of KRS 61.872(2), the Library did not treat it as such and therefore cannot be said to have expressly consented, or consented by a clear course of conduct, to conduct open records business with Mr. Duvall by email. Therefore, we can assign no error to the Library for failing to identify a statutory exception in denying Mr. Duvall's request.
On appeal, the Library invoked KRS 61.878(1)(i) and (j) in support of its denial. The Library maintained that the handwritten note and email account constituted preliminary drafts, notes, and correspondence with a private individual and preliminary memoranda in which opinions are expressed or policies formulated or recommended, but agreed to release the handwritten note. 1
Because the Library cannot be said to have violated the Open Records Act in withholding Mr. Duvall's email for the reasons set forth above, we do not address the propriety of the denial of Mr. Duvall's request for access to his email account, but remind the Library that, as a former public agency employee, Mr. Duvall enjoys a broader right of access to records relating to him by virtue of KRS 61.878(3). That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In construing this provision, the Attorney General has observed:
This statute has been referred to as the "exception to the exceptions" to the Act, and provides public employees with the right to inspect records relating to them. 93-ORD-19. It formerly referenced only "state employee[s]," and had been interpreted by this office as being applicable to state personnel governed by Chapter 18A of the Kentucky Revised Statutes only. See, for example, OAG 87-50; OAG 90-83; OAG 91-128; OAG 91-133. It now extends, by its express terms, to all "public agency employee[s], including university employees, . . . applicant[s] for employment, or . . . eligible [s] on a register. " When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly. In addition, public agency employees do not have a right to inspect examinations or documents relating to ongoing criminal or administrative investigations by an agency. 95-ORD-97; 96-ORD-27.
97-ORD-87, p. 3.
Continuing, we addressed the status of former public employees:
Although the provision does not contain a specific reference to former employees, we believe that its expansive wording, coupled with the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compel this result. The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to insure that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statute, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law." Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 682 (Ky. 1992) citing Kentucky Tax Commission v. Sandman, 300 423, 189 S.W.2d 407 (Ky. 1945).
Id. The Library should bear these authorities in mind in responding to a properly transmitted and framed open records request from Mr. Duvall. Because his request did not conform to the requirements of KRS 61.872(2) in its content and in its mode of transmission, and because the Boone County Public Library did not waive its objection to these deficiencies, we assign no error to the Library and find no violation of the Open Records Act with respect to the request which is the subject of this appeal.
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.
James A. DuvallGreta K. Southard, DirectorSharon Schneider Elliston
Footnotes
Footnotes
1 Were this appeal before the Attorney General in the proper legal posture, our resolution of the issue of access to the handwritten note would be foreclosed by 40 KAR 1:030 Section 6, which states that "[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
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