Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Office of the Oldham County Judge-Executive relative to Jordan Harrod's July 20, 2017, e-mail request for the "hire dates, initial pay amounts, any and all pay increases (including category of increase date given)" for six named current and former employees, violated the Kentucky Open Records Act. 1 Human Resources Manager Tina Schaaf confirmed receipt of Mr. Harrod's request via e-mail dated July 25, 2017, advising that she would be on vacation until August 1 and would respond to his e-mail upon her return. On appeal, Ms. Schaaf merely advised that Mr. Harrod's request "did not reference the term Open Records Request anywhere in the document. Moreover, even if it is considered an Open Records Request, our office is not required to respond to Open Records Requests made by email [under] KRS 61.872(2)." Ms. Schaaf indicated, "[w]e are, however, working on the request. The information requested requires researching older files and systems." 2 Based upon the following, this office is unable to find that a violation was committed notwithstanding the agency's partially flawed perception of KRS 61.872(2) and 61.880(1).
When asked to determine whether a request was adequate, this office held that even if "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. OAG 76-588; 06-ORD-197; 10-ORD-106; 15-ORD-176. A public agency cannot reject a request, or avoid its duty under the Act, for example, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3; 10-ORD-122 (to the extent public agency maintained that requester was required to complete a particular form provided on its website, its policy made it more difficult to inspect a public record than it was before the Act was enacted and was "contrary to the letter and spirit" of the Act); 15-ORD-013. The agency's position that Mr. Harrod was required to reference the Open Records Act specifically is contrary to KRS 61.872(2) and prior decisions applying that provision; however, existing legal authority otherwise validates the agency's position relative to KRS 61.872(2) with one disclaimer.
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, " a public agency is not obligated to honor an e-mailed request. See, e.g., 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090 (footnote 2), 06-ORD-018; 06-ORD-086; 07-ORD-033; 12-ORD-036; compare 07-ORD-105. "Such a 'course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email. '" 12-ORD-036 p. 2, n. 1. These decisions were premised on the statutory language found at KRS 61.872(2), providing that a request made under the Open Records Act "shall be hand delivered, mailed, or sent via facsimile, " must contain the applicant's signature, "with his name printed legibly thereon, describing the records to be inspected. "
In the instant case, Ms. Schaaf responded within three working days per KRS 61.880(1) but indicated that she would "respond" to Mr. Harrod's e-mail when she returned. Ms. Schaaf did not raise any objection to Mr. Harrod's method of transmission, apparently based on her flawed assumption that his e-mail was not a request made under the Open Records Act simply because it did not contain language to that effect. Because Ms. Schaaf did not respond upon returning to work, Mr. Harrod filed this appeal, dated August 29, 2017; in other words, Mr. Harrod's appeal resulted from the agency's failure to communicate with Mr. Harrod any further via e-mail or in writing. Compare 16-ORD-133. Nevertheless, in applying the rule of statutory construction codified at KRS 446.080(4), this office concluded that "until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests," or the requests, the Attorney General is "confined to the statutorily recognized methods 'according to common and approved usage of the language' employed in the statutes." 12-ORD-036, p. 2; 98-ORD-167. Because no agreement or course of conduct existed here, this office has no basis upon which to find the Judge-Executive's Office violated the Open Records Act; however, in the future the Judge-Executive's Office "should notify requesters, like [Mr. Harrod], that it does not accept emailed requests and direct him to KRS 61.872(2) to [ensure] proper submission of subsequent open records requests." See 12-ORD-036 (encouraging public agencies "to immediately notify requesters utilizing e-mail that the agency does not accept e-mailed open records requests and that the requester should submit the request by hand delivery, U.S. Mail, or facsimile" ).
In light of the agency's initial response to Mr. Harrod's e-mail, this office must clarify that Ms. Schaaf's absence would not excuse or mitigate the Judge-Executive's failure to fully discharge his duties under KRS 61.880(1) upon receipt of a properly submitted request. 14-ORD-026. The Judge-Executive's Office, like any public agency, is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests. 10-ORD-199. A "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests" in his absence); 09-ORD-091 (statutory period for agency response "cannot be extended to accommodate the schedules of agency staff"); 94-ORD-86; 15-ORD-174; 16-ORD-279; 17-ORD-105. To the contrary, a public agency response advising that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act. 96-ORD-238, p. 2. "The duty to respond to an open records request, and to afford the requester timely access to the records identified in this request, is as much a public servant's legal duty as any other essential function." 01-ORD-21, p. 4. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 682 (Ky. 1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra , at 1041; 10-ORD-199; 14-ORD-026.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. Accordingly, the Attorney General has consistently held that requests for information, as opposed to requests for public records, "need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080; 12-ORD-096. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. See KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added). In lieu of creating a record, a public agency is required "to make any non-exempt records that may contain the information being sought available for inspection, assuming that any exist." 11-ORD-007, p. 3. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis); 14-ORD-225.
2 See 16-ORD-194 for the information that may be permissibly redacted from payroll records under KRS 61.878(1)(a).