Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Laurel County Board of Education ("Board") violated the Open Records Act ("Act") in its disposition of two open records requests submitted by Sharon K. Oxendine ("Appellant"). For reasons stated below, we find that the Board consented to transact its open records business by email when it accepted Appellant's request by email, without objection, and then responded by email. This matter is moot regarding records responsive to one request made available during the course of the appeal, pursuant to 40 KAR 1:030 Section 6. 1 The Board violated the Act when it failed to respond to the remaining request timely, and by failing to affirmatively indicate whether the responsive records exist. The Board also violated the Act by failing to provide a legitimate detailed explanation of the cause for the delay and provide a specific date when the records would be available. However, the Board did not substantively violate the Act where, pursuant to KRS 61.872(5) no evidence shows that a responsive disciplinary record exists.
On February 11, 2019, Appellant submitted an open records request by email to Superintendent Doug Bennett. Appellant sent the request seeking copies of two groups of records, described as follows:
Under the Kentucky Open Records Act § 61.872 et seq., I am requesting copies of all disciplinary actions that were taken for [Laurel County Schools Psychologist Tara Hall] use of school email to recruit KAPE members during the last 12 months. I am also requesting a copy of all email correspondence that Tara Hall has had within the last 12 months that contain the key words or phrases, "Donna," "KAPE," "KEA," "the other guys," "liability insurance," and "joining."
Appellant also sent a copy of the request by U.S. Mail on the same date. On February 18, 2019, our office received the appeal. In the appeal, Appellant stated that she had not received a response from the Board as of the appeal date.
On March 1, 2019, Board Attorney Larry G. Bryson responded to the appeal. Mr. Bryson argues that the Board timely responded because Appellant's email "was not a proper request." He states that a written application is required pursuant to KRS 61.872(2), and cites decisions of this office to argue that "an emailed request need not be honored." However, Mr. Bryson also states that Superintendent Bennett received the request by U.S. Mail on February 19, 2019. He argues that Mr. Bennett timely responded, excluding Saturday, Sunday, and a legal holiday, on February 22, 2019.
Mr. Bryson included a copy of the February 22, 2019 initial response with the Board's appeal response. The record shows that Superintendent Bennett sent the initial response by email. The initial response did not address Appellant's request for copies of the school psychologist's disciplinary records. However, in addressing that request on appeal, Mr. Bryson states "[n]o discipline records exist for the employee that Ms. Oxendine requested." The Board does not describe its search for responsive disciplinary records in the initial response and does not address it on appeal. However, no evidence in the record shows that the disciplinary records exist.
We find that the Board consented to conduct open records business by email and was, therefore, obligated to respond to the emailed request in a manner consistent with the requirements of the Act. The Board argues Appellant was required to comply with KRS 61.872(2), which provides that "the application shall be hand delivered, mailed, or sent via facsimile to the public agency. " However, "[a] public agency is not obligated to accept an open records request transmitted by email, but may 'consent, by a clear course of conduct, to transact [its] open records business by email. '" 06-ORD-134 n. 1. "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. Further, "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.
The record shows that the Board did not immediately notify Appellant that it does not accept emailed requests, and the Board did not raise an objection until the appeal. The record also shows that the Board issued its initial written response and provided the existing responsive records by email. When a public agency responds to a request by email, we construe such a response as consent to communicate electronically. See 06-ORD-134 n. 1; 07-ORD-064, p. 2. Accordingly, we find that that the Board consented to transact its open records business by email through a clear course of conduct. Therefore, the requirements of the Act apply to its response.
This matter is moot regarding the request for the email correspondence. During the appeal, the Board located the records responsive to that request and made them available to Appellant. In accordance with 40 KAR 1:030 Section 6, any issues relating to those records are now moot.
Regarding the additional request for disciplinary records, the Board committed two violations of KRS 61.880(1). In relevant part, KRS 61.880(1) provides:
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.
Having found herein that the Board was obligated to respond to the request Appellant sent via email on February 11, 2019, we find that the Board's initial written response was due on or before February 14. As such, the Board failed to issue its initial written response within three business days as required by KRS 61.880(1).
The initial written response also lacked the specificity required under KRS 61.880(1) because it failed to advise Appellant that responsive disciplinary records did not exist. This office has consistently recognized that a public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See
Bowling v. Lexington-Fayette Urban Cty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037. However, in addressing the obligations of a public agency when denying access to public records based upon their nonexistence, this office has consistently observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9 (other citations omitted); 12-ORD-162. Accordingly, a response by a public agency violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but the agency discharges its duty under the Open Records Act in affirmatively so indicating. 98-ORD-154, p. 2 (citation omitted); 03-ORD-205, p. 3; 99-ORD-98; 04-ORD-205; 09-ORD-145; 10-ORD-060. Accordingly, the Board committed a second violation of KRS 61.880(1).
The Board further violated the Act by failing to properly invoke the statutory exception to KRS 61.880(1) and specify a reason for the delay in producing the requested records. KRS 61.872(5) requires that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain . 01-ORD-38, p. 5 (emphasis added). A public agency must expressly invoke KRS 61.872(5) and provide the required detailed explanation of the cause for delay and date certain for production of the responsive records. See 18-ORD-188. In failing to provide this required information, the Board violated the Act.
However, although the Board failed to advise Appellant that responsive disciplinary records did not exist, there is no evidence in the record that the records do exist. This office has consistently recognized that a public agency cannot provide a requester with access to a nonexistent record or that which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that a certain record exists in the possession of the agency. See Bowling, 172 S.W.3d at 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). While Appellant may have some reason to believe that a responsive disciplinary record exists, she provides no affirmative evidence to support finding that the record exists, and does not provide facts or law to support finding that such records do exist. Therefore, based on the representation made by the Board that no responsive disciplinary records exist and no evidence in the record to the contrary, we find no substantive violation of the 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.
Footnotes
Footnotes
1 40 KAR 1:030, Section 6 states: "Moot complaints. If 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."