Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Personnel Cabinet ("Cabinet") violated the Open Records Act in its disposition of Christopher Southworth's requests for personnel files and copies of open records requests. For the reasons stated below, we find that the Cabinet committed procedural violations of the Act, but did not subvert the intent of the Act short of denial of inspection.
Mr. Southworth ("Appellant") stated that he is involved in an appeal before the Personnel Board in which the Cabinet is an intervening party. He requested records related to his Personnel Board action, which he submitted to the Cabinet's Office of Legal Services by email at 8:55 p.m. on December 12, 2018. The Cabinet denied the request via email at 8:21 a.m. the next morning, directing Appellant to submit the request via "fax or USPS as required by our office." Appellant protested to the Cabinet, by email, that he had submitted an earlier (September 2018) email request that the Cabinet accepted. The Cabinet responded that KRS 61.872(2) allows the official custodian of the records to require that the request be hand delivered, mailed, or sent via facsimile to the public agency. 1 The Cabinet further stated that, "If you were at some point allowed to email your request in, that method was not authorized by the Kentucky Revised Statutes. Please fax, mail or hand deliver your request, as directed by KRS 61.872."
On appeal, Appellant states that he considers this change in the Cabinet's practice of accepting his open records requests by email to be a subversion of the Open Records Act. During the email exchange with the Cabinet about accepting his request via email, the Cabinet also stated that Appellant was not to use state resources for personal use. Appellant believed this response constituted subversion of the intent of the Act by threatening him with an ethics violation for submitting an Open Records request.
Appellant submitted three open records requests in person on Friday, December 14, 2018, only two of which are at issue in this appeal. The first request designated "2018-191" by the Cabinet, was for copies of all PAN's (Personnel Action Notification) throughout the entire careers of 27 named employees of the Kentucky Department of Revenue. The second request, designated "2018-192," was for copies of all open records requests submitted to the Cabinet via email from August 1, 2017, to December 14, 2018.
On Monday, December 17, 2018, the Cabinet responded to the requests at issue, stating that it needed until January 19, 2019, to fulfill them. The Cabinet did not provide a reason for the delay. Appellant complains, in his open records appeal, that there was a deadline of January 18, 2019, to produce documents as part of the discovery process in the Personnel Board matter, and that the delay by the Cabinet was intended to interfere with his ability to present his case before the Personnel Board. Appellant argues that this delay was a subversion of the Open Records Act.
On appeal, the Cabinet admitted that it had inadvertently failed to notify Appellant of the reason for the delay, but stated it sent him an email on December 27, 2018, apologizing for the confusion in the date of expected production being a Saturday, and explaining the need for 30 days to provide the records. Regarding 2018-191, the request for personnel records, the Cabinet explained that it required "additional time to respond to [Appellant's] request due to the length and complexity of your request, as it requires us to review, copy, and redact an extensive amount of documents from approximately twenty-seven (27) personnel files. Furthermore, the response is delayed due to staff absences and office closure for the Christmas and New Year holidays." On appeal, the Cabinet more fully explained that each of the responsive records required redaction of personal privacy information such as the employees' home addresses, dates of birth, and Social Security Numbers. Further, due to the "nature, length and complexity of the response, the anticipated holidays (4 days) and holiday-related staff absences, it was anticipated that a response would take up to thirty (30) calendar days from December 4, to January 18, 2019." The Cabinet stated that it inadvertently gave the date of January 19, a Saturday, as the date the records would be ready, rather than the intended date of Friday, January 18, 2019.
On January 3, 2019, the Cabinet notified Appellant, by telephone, that the response to 2018-191, consisting of 723 pages, could be picked up upon receipt of payment. The records were delivered to Appellant on January 4, 2019. The Cabinet argued that the open records appeal regarding the personnel files of 27 employees is moot as the Cabinet sent Appellant an email correcting the expected date of delivery and explaining the delay, and because the records were provided prior to the institution of this appeal.
Regarding the request for copies of open records requests for 15 months, 2018-192, the Cabinet stated that it inadvertently gave the date of "January 19," a Saturday, as the date the records would be ready, rather than the intended date of Friday, January 18, 2019. The Cabinet admitted that it also inadvertently failed to notify Appellant of the reason for the delay, but had sent Appellant an email on December 27, 2018, apologizing for the confusion in the date, correcting the expected date of delivery, and explaining the reason for requiring thirty days to provide the records. 2 The Cabinet stated that it has also completed delivery of the requested records for 2018-192. 3
In response to Appellant's claim that the Cabinet had threatened him with an ethics violation for filing an open records request, the Cabinet stated that Ms. Ireland, the Cabinet employee who initially responded to Appellant's emailed records request, does at times advise employees to refrain from use of state resources for personal business, in accordance with Office of the Chief Information Officer Enterprise Policy (CIO-060) and KRS Chapter 11A. The Cabinet admitted that Ms. Ireland was incorrect in her assumption that Appellant was using state resources to make an open records request, but denied that her admonishment to him was a threat. The Cabinet explained that Ms. Ireland has not been involved in Appellant's Personnel Board Appeal and that her duties in responding to open records requests are separate from any matter before the Personnel Board.
Appeal of 2018-191 is not moot . The Cabinet argues that the Open Records appeal regarding the personnel files of 27 employees is moot as it had sent Appellant an email correcting the expected date of delivery and the records were provided as of January 4, 2019. We do not agree that the appeal should be denied as moot. 40 KAR 1:030 Section 6 states, "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." This office has previously determined that "unless 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, p.5. As the Cabinet provided redacted records in response to 2018-191, the appeal is not moot and we address the issues of the appeal below.
Change in practice regarding submission of requests by email . Under the Open Records Act "e-mail is not a permissible method of delivery ? ." 09-ORD-116, n. 2; 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; 18-ORD-137. Here, the Cabinet had accepted at least one earlier records request by email, but upon receipt of Appellant's email on December 13, 2018, immediately notified Appellant of the requirement to submit such requests by hand, fax, or mail. As the denial of the emailed request was immediate, as was the Cabinet's direction on how to submit records requests, and Appellant submitted his requests the following day, we find that the Cabinet did not violate the Open Records Act in refusing Appellant's email request. See 07-ORD-033; 16-ORD-088.
Delay of production beyond three days . Appellant hand delivered the two requests at issue on Friday, December 14, 2018, and the Cabinet responded the following Monday, December 17, that it required until January 19, 2019, to produce the records. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
This office has often held that any extension of the statutory time frame of three business days "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. " 08-ORD-021, p. 6; see 06-ORD-126. The Cabinet's response to Appellant's requests did state the "earliest date certain" on which the records would be released, but did not invoke KRS 61.872(5), did not specifically state that the records were "not otherwise available[,]" and did not provide a detailed explanation for the delay. These errors constitute procedural violations of the Open Records Act, which the Cabinet acknowledged in its response to the appeal. The Cabinet's email to Appellant on December 27 and its further explanations on appeal belatedly corrected these procedural errors.
Subversion of the Act by threatening ethics violation . Appellant complains that the Cabinet's directive to "not use state resources for personal use" in response to a request for records was a subversion of the Open Records Act. Under the facts of this appeal, we find the Cabinet did not subvert the intent of the Act short of denial. The Cabinet did not unreasonably delay access to records and did not misdirect Appellant in a substantive manner. 12-ORD-191(misdirected requester to another agency without reasonable basis). The Cabinet was under a reasonable, albeit incorrect, assumption that Appellant was using state resources for personal use, and merely stated guidance that state employees are not to use state resources for personal use.
In summary, the Cabinet committed procedural violations of KRS 61.872(5) but did not subvert the intent of the Open Records Act short of denial of inspection by requiring Appellant to submit his requests by hand, fax or mail, or through delaying production of the records.
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 61.872(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.
2 The Cabinet's email of December 27, 2018, stated:
We apologize for the confusion on the dates. Also, we require an additional 30 days on this request related to any open records emails sent to Amy Ireland, because staff will be absent for the holidays, we will be closed four (4) days for the holidays, and it will take Amy quite some time to go through more than one year of emails to see if she has any responsive documents, to include copying and redaction, where applicable.
3 The record on appeal does not indicate the date of delivery of the records requested in 2018-192 and therefore, we make no decision regarding whether the actual delivery exceeded the expected delivery date of January 18, 2019.