Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Fayette County Public Schools violated KRS 61.874(2)(a) by failing to adhere to a request for hard copies of responsive records. Absent proof that the requester received a timely written response, FCPS violated KRS 61.880(1) by failing to respond to the open records request.
Open Records Decision
The issue presented in this appeal is whether the Fayette County Public Schools ("FCPS") violated the Open Records Act ("Act") in its disposition of an open records request submitted by Edward E. Dove (Appellant"). FCPS violated KRS 61.874(2)(a) by failing to adhere to Appellant's request for a hard copy of the responsive records. Absent proof that Appellant received a timely written response, FCPS violated KRS 61.880(1) by failing to respond to the open records request.
On June 4, 2019, Appellant submitted an open records request to FCPS seeking information relating to the Martin Luther King Academy. Appellant indicated that he was willing to pay the cost for receiving copies, and provided a mailing address for the response. On July 26, 2019, Appellant mailed a follow-up letter to the FCPS General Counsel. Appellant stated, "I mailed the attached Open Records Request to [FCPS]. I have yet to receive a response." Having received no responses, Appellant filed this appeal on August 28, 2019.
On September 6, 2019, FCPS responded to the appeal, stating it received Appellant's open records request on June 14, 2019, and "a response to the request was sent to [Appellant] three business days later, on June 19, 2019." FCPS attached to its appeal response an email and a copy of the responsive records as evidence that it met its duties under KRS 61.880(1). 1FCPS stated that it sent the response "via email," and attached a copy of the email and responsive records as verification. However, Appellant did not provide an email address with the open records request or the follow-up letter. No evidence exists in the record that Appellant received the email or the responsive records.
FCPS violated KRS 61.874(2)(a) by failing to adhere to Appellant's request for hard copies of the responsive records. KRS 61.874(2)(a) provides, in relevant part, 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." (Emphasis added). Appellant designated receipt of the responsive records by hard copy through the mail in his open records request. 2Accordingly, FCPS violated the Act by failing to adhere to Appellant's request for hard copies of the responsive records by mail, and instead attempting to respond by providing electronic copies by email.
FCPS did not meet its burden of proof that Appellant received its emailed response. Consequently, FCPS violated KRS 61.880(1) by failing to issue a timely written response to Appellant's request. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." On appeal, FCPS argued that it met its duties under KRS 61.880(1). However, appellant did not provide an email address with his request, and no evidence exists in the record that Appellant owns the email address to which FCPS delivered the required written response. Further, FCPS provides no evidence that the Appellant received the email or responsive records. "The burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency." 95-ORD-61, p. 5; KRS 61.880(2)(c); KRS 61.882(3). Absent proof that FCPS delivered a timely written response to Appellant, we find that the agency violated KRS 61.880(1).
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.
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