Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Kentucky Department of Education violated KRS 61.880(1) by untimely responding to request and failing to explain application of open records exceptions. Department subverted intent of Open Records Act by imposing improper copying fees and delaying response with boilerplate language in lieu of detailed explanation required by KRS 61.872(5), and substantively violated KRS 61.874(2)(a) by attempting to provide paper copies where the request designated electronic copies. Applicability of exceptions under KRS 61.878(1) rendered moot issue where records were nonresponsive to request.
Open Records Decision
The question presented in this appeal is whether the Kentucky Department of Education ("KDE") violated the Open Records Act in its disposition of Tyler Fryman's March 15, 2019, request for "[t]imesheets for all staff ... from Jan 1st, 2019 to Mar 15th, 2019," and "[a]ll emails (in their electronic form) to and from the Commissioner that include the [word] 'sick' in the subject or body from Apr 17th, 2018 to March 15th, 2019." For the reasons that follow, we find that KDE procedurally violated the Act, subverted the intent of the Act short of denial of inspection, and substantively violated KRS 61.874(2)(a). The issues raised concerning KRS 61.878(1)(i) and (j) have been rendered moot on appeal.
KDE's custodian of records received Mr. Fryman's request on March 20, 2019. 1On March 25, 2019, KDE responded that the records in question were "in active use, in storage, or not otherwise available as set forth in KRS 61.872(5). Specifically, your request is for substantial records located in voluminous files and require review for possible redaction or exemption pursuant to KRS 61.878." With regard to the timesheets, KDE stated that it "estimate[d] this portion of your request to exceed 600 pages of records," but KDE provided no estimate for the number of e-mails. With regard to both sets of records, KDE stated that "these records will be ready for delivery on or before June 25, 2019."
On April 23, 2019, KDE issued a final response to Mr. Fryman's request, making the records available upon payment of copying charges, and indicating that it had made redactions to the e-mails on the basis of KRS 61.878(1)(a), KRS 61.878(1)(k) in conjunction with the Family Educational Rights and Privacy Act (FERPA), KRS 61.878(1)(l) in conjunction with the attorney-client privilege, and KRS 61.878(1)(i) and (j) in regard to "records provided to Commissioner Lewis by local school districts related to sick leave notification from teachers." As to this last category of records, KDE explained that the local school district records "were obtained by the Commissioner pursuant to his authority under KRS 156.010, 156.200, and 156.210" and the school districts themselves had asserted the preliminary nature of those documents.
Mr. Fryman initiated this appeal on May 17, 2019, asserting three objections to KDE's responses. First, he argued that KDE's initial response merely used "boilerplate" language as to the timesheets, instead of giving a "detailed explanation" for the delay as required by KRS 61.872(5). Second, he argued that KDE improperly assessed copying fees for the e-mails when he had explicitly requested them in electronic form. Third, with regard to the e-mails withheld as "preliminary," he argued that KDE "fail[ed] to mention if these made it into any final action," by which means they would have lost their preliminary status under KRS 61.878(1)(i) and (j). 2
Timeliness of response and use of boilerplate language
KRS 61.880(1) requires that a public agency make not merely a perfunctory acknowledgment, but a substantive disposition, of a request for public records within three business days. The only statutory exception to this requirement is contained in KRS 61.872(5), which 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.
(Emphasis added.) An agency response invoking KRS 61.872(5) must do significantly more by way of explanation than "parrot[ing], without citing, the language of the statute." 09-ORD-007. Instead of merely reciting that records are "in active use, in storage, or not otherwise available," a public agency must "identify which of these permissible reasons for delay appl[y], if any, or to what extent." 16-ORD-206. KDE failed to give this information.
In regard to the timesheets as well as the e-mails, KDE merely stated: "your request is for substantial records located in voluminous files and require review for possible redaction or exemption pursuant to KRS 61.878." The mere fact that records are "substantial" or files are "voluminous," without a more detailed explanation, does not render the records "unavailable." KDE's response failed to explain, "in detail, the problems associated with retrieving the records implicated by the request that would support [the] delay in providing the requested records." 02-ORD-217.
Furthermore, "[t]he need to [review and] redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request [and] does not, in and of itself, constitute a reason for additional delay." 15-ORD-029. We further note that KDE did not make any redactions to the timesheets, nor did it explain why it believed such redactions were necessary. We therefore find that KDE's representations did not amount to a "detailed explanation" to justify the delay as required by KRS 61.872(5). Accordingly, KDE's disposition of the request was untimely under KRS 61.880(1).
The use of "boilerplate language that was in no way correlated to [the] particular request ... is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1)." 11-ORD-135. KDE's "repetitive responses composed of boilerplate language" not only required Mr. Fryman "to wait for access to public records beyond the time permitted by KRS 61.880(1), but also denied [him] an adequate explanation of the cause for delay and, thereby, denied him a meaningful opportunity to challenge the delays on appeal." 18-ORD-216. This use of boilerplate language subverted the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4). 19-ORD-004.
Copying fees
Mr. Fryman complains of the copying fees assessed for the e-mails he requested in electronic form. KRS 61.874(2)(a) provides that 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, KDE argues that Mr. Fryman's request "did not include an email address or any other means by which KDE could electronically deliver the records to him," and thus KDE had no choice but to offer to mail him paper copies. This clearly is not the case, however, because KDE could alternatively have provided Mr. Fryman a link to an online storage location, or offered to mail him electronic copies of the records on a compact disc, flash drive, or other physical storage device. If KDE required further information regarding delivery methods, it could have sought clarification from Mr. Fryman rather than denying Mr. Fryman the records in the format requested. Cf . 13-ORD-104.
On appeal, KDE represented that it would "provide the email records to Mr. Fryman electronically upon receipt of confirmation of an email address to receive the records and presuming the file size will attach to and transmit via email." Again, it is KDE's duty to provide the electronic copies by some method, whether the file size can be transmitted by electronic means or not. If Mr. Fryman does not provide an e-mail address, KDE can fulfill its obligation by mailing the records on physical media, and may recover its actual costs for postage pursuant to KRS 61.872(3)(b), as well as the reasonable cost of the storage device pursuant to KRS 61.874(3). 08-ORD-254; 13-ORD-147.
By attempting to deny Mr. Fryman his chosen format for copies of electronic records, KDE violated KRS 61.874(2)(a). Furthermore, by attempting to impose improper fees, KDE subverted the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4). 19-ORD-115.
Invocation of KRS 61.878(1)(i) and (j)
Mr. Fryman also argues that KDE did not adequately explain its invocation of KRS 61.878(1)(i) and (j). 3In its final response to Mr. Fryman, KDE stated that it was asserting, on behalf of local school districts, the preliminary status of "records provided to Commissioner Lewis by [the] districts related to sick leave notification from teachers." KDE did not, however, explain why those records were preliminary.
KRS 61.880(1) requires an agency's denial of inspection to include both "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." Although KDE cited the exceptions on which it relied, it did not explain how they applied to the specific records. Thus, KDE committed a procedural violation of the Act. 16-ORD-261.
Substantively, however, we need not consider whether KDE properly invoked KRS 61.878(1)(i) and (j), due to a new issue raised on appeal. The local school district records that KDE withheld as preliminary consist entirely of e-mails, and attachments thereto, which the districts forwarded to Commissioner Lewis after March 15, 2019. 4As Mr. Fryman's request specified a date range of April 17, 2018, to March 15, 2019, KDE asserts that those records are nonresponsive and thus need not be produced. We agree. See 16-ORD-256. Therefore, the applicability of KRS 61.878(1)(i) and (j) to those records is moot.
Conclusion
We conclude that KDE procedurally violated the Open Records Act by its untimely disposition of Mr. Fryman's request and failure to explain the application of KRS 61.878(1)(i) and (j). The applicability of those subsections, however, is moot, as the records are nonresponsive to the request. KDE substantively violated KRS 61.874(2)(a) in its attempt to provide paper copies of e-mails instead of the electronic copies requested, and subverted the intent of the Act within the meaning of KRS 61.880(4) by imposing a copying fee on those records. Additionally, KDE subverted the intent of the Act through its use of boilerplate language to delay fulfillment of the request without a detailed explanation as required by KRS 61.872(5).
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.
Footnotes
Footnotes
1 Mr. Fryman originally faxed his request to KDE Commissioner Wayne Lewis, rather than to the official custodian of records, and argued on appeal that the Commissioner's office should have merely informed him of the correct custodian pursuant to KRS 61.872(4) instead of forwarding his request to custodian of records. While the procedure under KRS 61.872(4) would have been correct, we decline to penalize KDE for forwarding the request instead of requiring Mr. Fryman to resubmit it.
2 We do not address the propriety of KDE's redactions on the basis of KRS 61.878(1)(a), (1)(k), or (1)(l), as Mr. Fryman did not indicate any objection to these in his appeal.
3 Those subsections create exceptions to the Open Records Act in the cases of, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
4 KDE asserted this fact on appeal, and our in camera review of those records confirmed it.