Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Laurel County Schools District ("District") violated the Open Records Act by not responding to an Open Records request delivered via email. For the reasons set forth below, we find that the District did not violate the Act.
On September 24, 2018, Rebecca Ebersole ("Appellant") requested "any communications which may contain" the names or initials of three individuals for the period from August 1, 2018, through the date of the request. Appellant stated that she submitted the request to the District Superintendent at the email address given to her by the Kentucky Department of Education. Having received no response to her request, Appellant again sent her request on October 1, 2018, also to the District Superintendent's email address. Appellant appealed to this office by letter dated November 5, 2018, stating that she had not received any response to her requests.
Larry G. Bryson, attorney, responded to the appeal on behalf of the District. The District cited to KRS 61.872(2) and prior open records decisions of this office for the proposition that Appellant's emailed request was not valid under the Open Records Act and the District was not required to respond to the request. For the reasons stated below, we find that the District did not violate the Act in not responding to the emailed request. However, we encourage the District to adopt a practice of responding to email requests by immediately notifying requesters that it does not accept emailed open records requests and that the requester should submit the request by hand delivery, U.S. Mail, or facsimile.
KRS 61.880(1) 1 requires a public agency to respond to open records requests within three working days, but the District did not issue such a timely response to Appellant. However, on appeal, the District properly raised 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. As stated by the District, there is no evidence of consent by a clear course of conduct to accept the request by email. Accordingly, the District did not violate the Act in not responding to the emailed requests. However, the District "should notify requesters, like [Appellant], that it does not accept emailed requests and direct [Appellant] 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 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 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.