Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Cynthiana ("City") violated the Open Records Act when it did not respond to an open records request submitted by email to the Cynthiana Police Department. For the reasons stated below, we find that the City did not violate the Act.
On June 14, 2018, David D. Fuller, Esq. (Appellant) appealed an open records request he had submitted to the Cynthiana Police Department seeking a copy of a Kentucky State Police death investigation. Appellant stated in his appeal "I have received no response to the request and ask that your office intervene."
On June 21, 2018, Cynthiana City Attorney John Lair, Esq. (Appellant) submitted a response on behalf of the City. Mr. Lair states that "[u]pon receipt of notification of appeal, this office immediately undertook an investigation to determine whether the [City] had received [Appellant's] request for records dated June 5, 2018 and whether the City had made timely response. " The City stated it had inadvertently neglected to respond. Mr. Lair states that Appellant "sent his request for records to Assistant Chief William Deaton by email, " and "[i]t does not appear that a hard copy was sent to any representative of the City either by hand-delivery, regular mail or facsimile. " On June 6, 2018, the Assistant Chief acknowledged receipt of the email message saying, "I have sent your request to [Chief of Police Ray Johnson] regarding this incident." Mr. Lair states that, "Chief Johnson apparently hit 'reply' instead of 'reply all' and so the response intended for Mr. Fuller appears to have only gone to Chief Denton." The response indicates that Chief Johnson had intended to notify Appellant that the City did not have possession of any responsive records. Mr. Lair states, "[i]t appears that all of those records would be in the possession of the Kentucky State Police who conducted the investigation."
Mr. Lair specifically addressed the emailed open records request in the response, arguing:
It is noteworthy that Mr. Fuller elected to send his request for records to Assistant Chief Denton who is in charge of keeping training records and evidence but is not the custodian of the official records of the City of Cynthiana. In addition, unless the requirements of KRS 61.872 have been changed, the statute requires that a request for records be forwarded by hand-delivery, mailed or sent via facsimile to the public agency. This was not done in this case. Despite these deficiencies, the Assistant Chief and Chief of Police responded to the request in good faith by attempting to notify Mr. Fuller that the police department was not in possession of the records which he sought to obtain.
Mr. Lair attached copies of the City's email messages as evidence of how Appellant's open records request was submitted and addressed.
We cannot find that the City violated the Act when it failed to respond to Appellant's open records request. KRS 61.880(1) 1 requires a public agency to respond to an open records request within three working days, and the City did fail to issue a timely response. However, the City Attorney properly raises KRS 61.872(2) 2, which provides that a request made under the Open Records Act "shall be hand delivered, mailed, or sent via facsimile, " to the public agency. The Attorney General has found 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 emailed request. See, e.g. , 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090 n. 2, 06-ORD-018; 06-ORD-086; 07-ORD-033; 12-ORD-036. 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 n. 1.
In this case, there was no express agreement to accept the request by email. The City did not raise any objection to Appellant's emailed request until the appeal. However, Appellant did not submit his open records request with the official custodian of the records. In addition, there is no evidence of consent by a clear course of conduct to accept the request by email. The record also shows that, although inadvertent, the City did not respond to the emailed request. In applying the rule of statutory construction codified at KRS 446.080(4) 3, this office concluded that "until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests," or the requests themselves, the Attorney General is confined to the statutorily recognized methods "according to common and approved usage of the language" employed in the statutes. 17-ORD-201, p. 2.; 12-ORD-036; 98-ORD-167. Accordingly, the City did not violate the Act. However, the City "should notify requesters, like [Appellant], 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" ).
A party aggrieved by this decision may appeal it 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(1) states: "If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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."
2 KRS 61.872(2) states: "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."
3 KRS 446.080(4) states: "All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning."