Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Henderson County Board of Education subverted intent of Open Records Act under KRS 61.880(4) by requiring noncommercial requester to use a notarized statement form certifying his noncommercial purpose; requester's typed name was sufficient to comply with signature requirement for an e-mailed request under KRS 61.872(2), and the Board lacked authority to impose additional requirements.
Open Records Decision
The question presented in this appeal is whether the Henderson County Board of Education ("the Board") violated the Open Records Act or subverted the intent of the Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in regard to Philip Lombard's August 9, 2019, request for copies of various records relating to fees charged to high school students for band activities. For the reasons stated below, we find that the Board subverted the intent of the Act.
By e-mail dated August 9, 2019, Mr. Lombard requested electronic copies of "the fee amounts your high [school] charges for marching band, concert band, and band camp ... and policy documents ... and forms associated with the same," as well as "any written policy or forms having to do with fee waivers or discounts." He stated that his request was for the purpose of "a comparative survey and this is not for any commercial use."
On August 12, 2019, the Board responded by telling Mr. Lombard he "must complete the attached Certification of Commercial Purpose Addendum" before obtaining the records. The attached form required a notarized signature certifying whether the request was for a commercial or noncommercial purpose, and, in the case of a commercial purpose, specifying that purpose.
Mr. Lombard appealed to this office, arguing that a notarized certification of a noncommercial purpose was an unlawful requirement. In a response to the appeal on September 10, 2019, the Board argued that its certification requirement was "[i]n accordance with KRS 61.874(4)." The Board further asserted that "Mr. Lombard completed the form, as requested," after which he received the records in electronic form.
The Open Records Act permits a public agency, when receiving a request for records, to require a "[w]ritten application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.872(2)(a). The 2019 amendment to KRS 61.872, for the first time, explicitly included e-mail as an authorized means of transmitting an open records request, along with hand delivery, regular mail, and facsimile transmission. KRS 61.872(2)(c).
Although the statute does not define the phrase "signed by the applicant" as used in the context of e-mailed requests, we believe the term "signed" should be construed broadly in such cases, so as not to frustrate the normal usage of electronic mail as a method of transmission, which was the clear intent of the 2019 amendment. KRS 446.080(1) provides that "[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature." In so construing KRS 61.872(2), we take notice of the fact that typed names are commonly used as signatures in e-mail communications, due to the purely electronic nature of the process, as distinguished from letters sent by ordinary mail, hand delivery, or facsimile. Accordingly, we find that Mr. Lombard's typed name was sufficient, in the context of e-mail, for his request to be deemed "signed" under KRS 61.872(2).
Having complied with all the requirements of KRS 61.872(2), Mr. Lombard had no obligation to sign a "specific form devised by the public agency." 94-ORD-101. Furthermore, having stated that the purpose of his request was noncommercial, he was not required to complete a notarized statement certifying that this was true. 19-ORD-088.
KRS 61.874(4) allows an agency to "require a certified statement" when "records are requested for a commercial purpose," but not when they are requested for a noncommercial purpose. A public agency cannot "add a requirement not found in the statutes."
Commonwealth v. Chestnut , 250 S.W.3d 655, 662 (Ky. 2008). As we have previously held, "no legal authority permits" a public agency to require a certified statement from a noncommercial applicant. 02-ORD-89.
Moreover, the fact that Mr. Lombard complied with the Board's certification requirement, and received the records, does not prevent us from finding that "the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection." 1KRS 61.880(4). In addition to being unauthorized by law, an agency's requirement of a sworn certification of noncommercial purpose "creates a potential chilling effect on submission of open records requests ... that is inconsistent with the basic policy of the Open Records Act codified at KRS 61.871." 202-ORD-89. Therefore, in accordance with our prior decisions, we find that the Board's certification requirement subverted the intent of the Act within the meaning of KRS 61.880(4).
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 Cf. 09-ORD-090 (providing records for a fee did not moot the question of whether the fee was excessive under KRS 61.880(4)); 18-ORD-241 (providing records in response to subsequent hand-delivered request did not moot the question of whether agency subverted intent of the Act by refusing to accept the same request by facsimile).
2 The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest...." KRS 61.871.