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 State Board of Elections ("Board") violated the Open Records Act in the disposition of Jessica Huseman's November 30, 2018, request for "copies [of] communication between any employee of the board of elections or the secretary of state's office and the Department of Justice," and "email or text message communication between any employee of the board of elections and Lindsay Thurston and/or Susan Galyon," from June through November 2018, containing certain key words. For the reasons that follow, we find that the Board subverted the intent of the Act within the meaning of KRS 61.880(4) by charging fees for blank copies and violated the Act by failing to respond to a follow-up request, but did not violate the act by charging a fee for hard copies of records.
Ms. Huseman requested communications containing the key words "list maintenance," "NVRA," "National Voter Registration Act," "Section 8," "voter registration," "change of address," "change-of-address," or "mailer." She requested that the Board notify her if the copying fees would exceed thirty dollars ($ 30). The Board initially responded on December 5, 2018, informing her that the records would be provided by January 3, 2019. Because the December 5 letter is not part of the record on appeal, we cannot determine whether the Board complied with the requirements of KRS 61.872(5) to extend a public agency's response time past the three business days allowed under KRS 61.880(1). The timeliness of the response, however, does not appear to be an issue raised on appeal.
On January 3, 2019, the Board provided Ms. Huseman with 86 pages of records, 30 of which were completely blank, accompanied by an invoice for $ 8.60 at ten cents ($ .10) per page. The cover letter stated: "To the extent the documents requested contained preliminary drafts, notes, or correspondence with private individuals, or privileged communications, the records were not produced pursuant to KRS 61.878(1)(i) and (j)." On January 4, 2019, Ms. Huseman e-mailed the records custodian and inquired, "Can you please provide a digital version? All of the documents I requested are digital. " The Board did not respond to this e-mail.
Ms. Huseman appealed to this office on April 4, 2019, alleging that the Board failed to identify the withheld records and to explain the application of KRS 61.878(1)(i) and (j), as required by KRS 61.880(1). She further contended that the Board improperly charged her for blank pages and failed to acknowledge her January 4, 2019, e-mail requesting electronic copies of the records.
On April 22, 2019, the Board responded to this appeal, 1 asserting that its actions were proper. We subsequently requested a copy of all withheld records for in camera review pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and asked the Board to explain its inclusion of blank documents among the records provided to Ms. Huseman.
In a supplemental response on May 17, 2019, the Board asserted that it had not actually withheld any records and the earlier references to KRS 61.878(1)(i) and (j), and that privileged communications had been "inadvertently included in the response letter." Based on this representation, we find that the issues relating to exceptions under KRS 61.878(1) are moot. We note, however, that KRS 61.880(1) does require "particular and detailed information" rather than a merely "perfunctory" reference to the language of an exception, as well as some meaningful identification of the records withheld. Edmondson v. Alig, 926 S.W.2d 856, 858 (1996); 14-ORD-133.
As to the blank pages, the Board explained that the records had been "scanned double-sided" because some of the originals were double-sided, and stated that the Board would "be glad to reimburse" the charge for the 30 blank pages for which it had billed Ms. Huseman if this office should find it improper. We regard this statement as an implicit admission of error, and accordingly find that the Board improperly charged Ms. Huseman for copies of blank pages, thus imposing an excessive fee and subverting the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4). 2
Ms. Huseman further argues that she should not have been charged any copying fee at all, in light of her January 4, 2019, request to receive the records in electronic form. Pursuant to KRS 61.874(2)(a), public records "shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. " Where a party specifically requests electronic copies of electronic records, a public agency may not impose a fee for making paper copies. 19-ORD-087; 14-ORD-148. Here, however, Ms. Huseman's original November 30, 2018, request did not specify electronic copies. Indeed, in light of her express reference to the possibility that copying fees might exceed thirty dollars ($ 30), the Board properly understood her request as one for paper copies, and complied with that request on January 3, 2019. Therefore, we find no violation or subversion of the Act as to the copying charge for non-blank pages.
Nevertheless, we find that the Board violated the Act by failing to respond to Ms. Huseman's e-mail on January 4, 2019, requesting "a digital version" of the records. This communication constituted a new open records request, to which the Board was obliged to respond within three days, excluding weekends and legal holidays. KRS 61.880(1). "A failure to respond to an open records request is tantamount to a denial of the request without specific basis." 05-ORD-176 (citing 02-ORD-116). Accordingly, the Board's lack of response to the e-mail constituted a 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 proceedings.
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