18-ORD-241

18-ORD-241

December 26, 2018

In re:        Christopher Phelps/Logan County Clerk

        Summary:        In absence of evidence to refute assertion that appellant’s faxed request for public records was never received, the Attorney General cannot conclusively resolve the related factual issues or find a violation or subversion of the Open Records Act.                 

Open Records Decision

        The question presented in this appeal is whether the Logan County Clerk (“the Clerk”) violated the Open Records Act or subverted the intent of the Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in regard to Christopher Phelps’ November 2, 2018, request for copies of certain deeds. For the reasons stated below, we cannot find a violation or subversion of the Act.

        Mr. Phelps, on behalf of real estate appraisers G. Herbert Pritchett & Associates, Inc., initially made his request by telephone. In response, the Clerk left a voice mail message indicating that a telephonic request would not be honored. Subsequently, when Mr. Phelps’ office manager Linda McGraw called the Clerk’s office to verify the fax number, a deputy clerk allegedly informed her that “requests for open records are not accepted by fax.”  Mr. Phelps states that Ms. McGraw nevertheless made the request by fax and that the Clerk’s office never responded. Therefore, Mr. Phelps drove from Hopkins County to Logan County to request the records in person. He alleges that the Clerk unlawfully refused to honor requests by fax.

        The Clerk argues that this appeal is moot because Mr. Phelps has obtained the records he requested. We decline to find the appeal moot because it raises an issue under KRS 61.880(4) as to whether “the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant.”  Under the statute, such complaints “shall be subject to the same adjudicatory process as if the record had been denied.”  We have held that providing records for a fee does not moot the question of whether the fee was excessive. 09-ORD-090. Similarly, providing records in response to a subsequent in-person request does not moot the issue of whether a public agency subverted the intent of the Open Records Act by refusing to accept the request by fax. Accordingly, we decline to find the appeal moot.

        Unquestionably, facsimile transmission is a valid method of submitting an open records request under KRS 61.872(2).¹  The Clerk asserts, however, that his office never received Mr. Phelps’ faxed request, pointing out the absence from the record of “a confirmation page that the fax was actually sent and received.”  This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. (See 12-ORD-204 and authorities cited therein.) In the absence of proof that the Clerk’s office received the faxed request, this office is unable to determine that the lack of response was a violation or subversion of the Open Records Act. 12-ORD-223.

        With regard to the Clerk’s alleged policy of refusing open records requests by fax, the Clerk does not admit to having such a policy, but acknowledges “that there was a disagreement over the form of writing that would be required.”  It is the Clerk’s recollection that he planned to consult with legal counsel, upon receipt of Mr. Phelps’ request, to clarify whether a faxed request was sufficient. The question thus remained unresolved because the Clerk did not receive the fax. Given our decision today, there need be no further doubt on the part of the Clerk that facsimile transmission is a sufficient method of delivery under KRS 61.872(2). Under the facts presented, however, we find no violation or subversion of the Open Records Act.

        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.

                                                Andy Beshear

                                                Attorney General

                                                James M. Herrick

                                                Assistant Attorney General

#477

Distributed to:

Mr. Christopher Phelps

Mr. Scottie Harper

Joseph E. Ross, Esq.