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 City of Elizabethtown violated the Open Records Act in denying Stephen McBride's May 29, 2018, request to inspect "[a]ny ordinance, policy, rule, regulation or any other form of administrative action of the City of Elizabethtown that deals with the possession, carrying, transfer, sale, purchase, ownership, transportation or storage of firearms by the general public or by employees of the City of Elizabethtown." Mr. McBride submitted his request via e-mail. City Clerk Mary Chaudoin notified him by e-mail also dated May 29, 2018, "The City of Elizabethtown only accepts Open Records Request[s] on the attached form or on company letterhead. " Citing 94-ORD-101 and 09-ORD-036, Mr. McBride initiated this appeal by letter dated June 14, 2018, challenging the City Clerk's denial of his request.
Upon receiving notification of Mr. McBride's appeal from this office, City Attorney Deborah L. Shaw responded on behalf of the City. Ms. Shaw noted that in 94-ORD-101, the Attorney General held that a requester satisfies "the statute," i.e. , KRS 61.872(2), if he submits a written application, whether submitted on the agency's form or not, which contains each of the following: 1) applicant's signature; 2) applicant's name printed legibly; and 3) a description of the records to be inspected. Mr. McBride's request did not contain his signature. According to Ms. Shaw, the request attached to Mr. McBride's appeal is not a copy of the request he submitted. Ms. Shaw enclosed a copy of the request Mr. McBride submitted via e-mail; it did not contain a signature. She further noted that in 09-ORD-036 the Attorney General recognized that KRS 61.872(2) requires the written application to be "hand delivered, mailed or sent via facsimile to the public agency. Mr. McBride's request has only been received through the attached email. " Although Ms. Shaw discussed the records being sought with Mr. McBride, as well as the form of the request, "Mr. McBride verbally refused to comply." The City has yet to receive a request "containing a signature or delivered pursuant to KRS 61.872(2). Upon receipt of a proper request, the City will provide the information Mr. McBride is requesting. "
Resolution of this appeal turns on KRS 61.872(2), pursuant to which "[a]ny 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. " Accordingly, this office has consistently recognized that a public agency "may require, if it desires to do so, that a request or application be in writing." 94-ORD-101, p. 3. "A signature may be required in order to trigger the requirements of KRS 61.880(1)." 10-ORD-106. Further, "e-mail is not a permissible method of delivery under the Open Records Act. " 09-ORD-190, p. 3 (citation omitted); 16-ORD-088. "'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 emailed request need not be honored." 07-ORD-033, p. 2 (citations omitted); 09-ORD-190. "Although KRS 61.872(2) does not recognize e-mail as a proper mode of transmission for an open records request, public agencies are encouraged 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. " 14-ORD-050, p. 2; 12-ORD-036. Here, the City did exactly that. Accordingly, the City did not violate the Open Records Act in declining to process Mr. McBride's request because it was only submitted via e-mail. See 07-ORD-033; 16-ORD-088.
The City was also permitted to require an original signature as opposed to a signature block per KRS 61.872(2). However, the copy of the request attached to Mr. McBride's appeal does contain a signature, whereas the copy attached to Ms. Shaw's appeal response lacks the required signature. This office is unable to conclusively resolve such a factual discrepancy. Here, as in 09-ORD-120 and 10-ORD-122, for example, this office declines to make a finding on the factual dispute presented. Regardless of whether the subject request otherwise satisfied KRS 61.872(2), e-mail is not a statutorily authorized means of transmission.
That said, the City's apparent policy of requiring all requesters, including Mr. McBride, to complete a specific form or use company letterhead is contrary to KRS 61.872(2). "If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains" the applicant's signature, the applicant's name printed legibly, and a description of records to be inspected. 94-ORD-101, p. 4 (emphasis added); 07-ORD-257, p. 5 (to the extent policies and procedures of the city "do not mirror the statutory requirements" of the Act "they are invalid and have no force and effect" as public agencies "cannot, by ordinance or any other legislative device regulate access to public records in a manner which conflicts" with provisions of the Act); 09-ORD-170; 11-ORD-080. Any local policy or procedure "that deviates from the specific requirements of the Open Records Act constitutes a violation of the Act. This includes a requirement that the requester utilize an open records request form developed by the agency." 07-ORD-257, p. 5. "Inasmuch as the requester's purpose in seeking access to public records is irrelevant, and KRS 61.872(2) narrowly restricts what information a public agency may require from the requester, this office has consistently disapproved the required use of preprinted forms requesting additional information." Id. , p. 6; 09-ORD-036; 10-ORD-122.
When asked to determine whether a request was adequate, this office has long 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. A public agency cannot reject a request, or avoid its duty under the Act, merely because the requester did not use a particular form or employ specific legal terminology. 01-ORD-247, p. 3; 10-ORD-122; 15-ORD-013. In other words, the applicant's "failure to utilize the 'formal process' established by the [public agency] " is not a proper basis for rejecting a request to inspect public records. 04-ORD-048, pp. 4-5; 95-ORD-33 (a requester is not required to state why he is asking to inspect records or to produce an I.D. in order to see records); 09-ORD-036; 15-ORD-176. Based upon the plain language of KRS 61.872(2), this office finds the City violated the Open Records Act in denying Mr. McBride's request solely on the basis that he did not complete a specific form or submit his request using company letterhead.
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 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.