Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government Division of Community Corrections ("LFUCG") subverted the intent of the Kentucky Open Records Act short of denial of inspection, within the meaning of KRS 61.880(4), in responding to Joshua Powell's October 8, 2018, request for copies of all e-mails to or from any employee of the Fayette County Detention Center containing discussion of Mr. Powell himself or of inmates Saquan Freeman, Adrian Dunn, Caitlyn Conway, Justin Smith, or Dawan Mulazim. For the reasons that follow, we find that LFUCG unlawfully required the use of its own printed request form demanding further information.
On October 10, 2018, records custodian Major Lisa Farmer sent a response to Mr. Powell stating:
In response to your request faxed on October 8, 2018 for the email searches listed below, please complete the attached "Search request for E-mail" for each search. The completion and submission of this form is required for all E-mail searches .
(Emphasis added.) On the same day, Mr. Powell initiated this appeal.
In his letter of appeal, Mr. Powell stated that he "filled out this form to the best of [his] ability" on October 10, 2018, but the form called for him to provide "overly detailed information not known to those outside of the Lexington Jail email service," such as the individual e-mail address of each Fayette County Detention Center employee. Mr. Powell provided a copy of the form he had completed, in which he listed several e-mail addresses (as the form required) and specified a date range of March 1, 2017, to October 10, 2018. He asserted that LFUCG may "not 'require' this extra form when statute only requires a 'requester's name, signature and description of records."
On appeal, LFUCG first contends that this appeal is premature because it was initiated before October 15, 2018, the date when LFUCG's final disposition of the request was due pursuant to KRS 197.025(7). 1 We reject this argument because in this case Mr. Powell is not appealing a denial of records, but a condition imposed on his request that subverts the intent of the Open Records Act "short of denial of inspection" under KRS 61.880(4). Since LFUCG has already imposed that condition, the appeal is not premature. Cf . 14-ORD-012 (appeal not premature prior to final disposition of request where alleged subversion under KRS 61.880(4) had already occurred). The final disposition of Mr. Powell's request is not at issue in this appeal. 2
Secondly, LFUCG argues that this appeal is moot because "LFUCG has begun an email search in earnest . . . and the non-exempt records discovered by the e-mail search will be made available." The mere initiation of a search for records does not create mootness. 40 KAR 1:030, Section 6, provides: "If 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." (Emphasis added.) LFUCG does not allege that it has yet made any records available to Mr. Powell, nor does it represent that it will make all of the requested records available to him. "[U]nless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 09-ORD-007. "This is particularly true when, as here, the [agency] has not made the requested records available to the requester and its commitment to do so is both prospective and conditioned on the possible application of exceptions to disclosure." 14-ORD-196. Furthermore, the subject of the present appeal is not a denial of inspection at all, but the subversion of the intent of the Act short of a denial. For these reasons, the appeal is not moot.
Finally, LFUCG argues that Mr. Powell's request was too vague in its description of records and that LFUCG merely "asked" Mr. Powell to submit the form as a "clarification of the scope" of his request. That argument is at odds with the record in this appeal. In regard to requests to receive copies of public records by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
Mr. Powell's October 8, 2018, request provided such definite, specific, and unequivocal terms, identifying the requested records by type (e-mails) , sender/recipient (all jail employees), and subject matter (certain named persons). The only specificity his original request did not provide was an expressly limited date range, as he asked for records "[f]or any date"; however, this should not have posed any unreasonable burden for LFUCG. 3 Such records would most likely have constituted "Routine Correspondence" under Series L5450 of the Lexington/Fayette Urban County Government Records Retention Schedule, 4 which instructs: "Retain for two (2) years, then destroy." Thus, LFUCG would only have needed to search two years of e-mails if it followed its own destruction schedule; and if not, any resulting burden would have been of LFUCG's own making. In light of these facts, we find that Mr. Powell's description of records was sufficiently precise under KRS 61.872(3)(b).
Furthermore, LFUCG mischaracterizes its October 10, 2018, response as a mere request for clarification. The language of that letter is unambiguous: "The completion and submission of this form is required for all E-mail searches." (Emphasis added.) KRS 61.872(2) provides, in pertinent part:
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 .
(Emphasis added.) A public agency has no authority to "add a requirement not found in the statutes."
Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). This includes the use of a form demanding more information than is required by KRS 61.872(2). 03-ORD-086.
LFUCG subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), by requiring the use of a special form for making a written request for e-mails. As the Attorney General observed in 94-ORD-101:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
In 07-ORD-257, we further stated that "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." In accord with those decisions, we find that LFUCG unlawfully required the use of a specific form for requesting e-mails, which demanded more information than required by statute.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 197.025(7), which extends the Department of Corrections' response time for open records requests to five business days, has been construed to apply to correctional facilities and jails. See, e.g. , 00-ORD-182.
2 Since any questions relating to the propriety of LFUCG's invocation of exceptions to the Open Records Act have not yet arisen or been reviewed under KRS 61.880(2), Mr. Powell may pursue a separate open records appeal with this office after the records are released to him, if he disputes a claimed exception. 14-ORD-196.
3 While not expressly citing KRS 61.872(6), LFUCG argues that it could have "den[ied] the request outright as unduly burdensome."
4 https://kdla.ky.gov/records/recretentionschedules/Documents/Local%20Rec… (last visited Oct. 17, 2018).