23-ORD-026
February 7, 2023
In re: Tyler Fryman/McCracken County Sheriff’s Office
Summary: The McCracken County Sheriff’s Office (“the Sheriff’s
Office”) did not violate the Open Records Act (“the Act”) when the email
address of its records custodian, listed on its website per KRS
61.876(2)(b), was temporarily inaccessible due to a technical error.
However, the Sheriff’s Office misdirected the requester, within the
meaning of KRS 61.880(4), when it represented that requests to inspect
records could be submitted by facsimile to a number where “no fax
machine [was] detected.”
Open Records Decision
On January 8, 2023, Tyler Fryman (“Appellant”) submitted a request to inspect
records to the Sheriff’s Office, using the email address of the records custodian listed
on the Sheriff’s Office website. However, the Appellant’s request was returned as
undeliverable with a message stating that “[t]he group sheriffrecordsrequest [sic]
only accepts messages from people in its organization or on its allowed senders list.”
The Appellant then attempted to send his request to the fax number listed on the
Sheriff’s Office website, but the facsimile transmission was undeliverable due to “[n]o
fax machine detected on the receiving end.” This appeal followed.
Under the Act, “[e]ach public agency shall display in a prominent location
accessible to the public, including on its Web site[, the] mailing address, e-mail
address, and phone number of the official custodian of the custodian of the records or
his or her designee to which all requests for public records shall be made.”
KRS 61.876(2)(b). The Appellant claims the Sheriff’s Office violated this provision by
failing to display a working email address or fax number for its records custodian on
the website.Although KRS 61.876(2)(b) does not require a public agency to display a fax
number for its records custodian on its website, it does require the record custodian’s
email address to be displayed. On appeal, the Sheriff’s Office explains that the email
address stated on its website for its records custodian is correct, but it was
temporarily unavailable due to a technical error. According to the Sheriff’s Office,
information technology personnel inadvertently changed the settings of the account
while working on a previous technical issue so that it would only receive messages
from inside the organization. The Sheriff’s Office advises this problem has since been
corrected. While the temporary unavailability of the email address may have
prevented requests from reaching the records custodian, the Sheriff’s Office did not
violate KRS 61.876(2)(b) because it displayed the correct email address on its website.
The Appellant, however, also claims the Sheriff’s Office violated the Act “by
failing to accept a request via email or fax.” Under the Act, a written application to
inspect public records “shall be . . . [h]and delivered, [m]ailed, [s]ent by facsimile, or
[s]ent via e-mail to the public agency’s official custodian of public records or his or her
designee at the e-mail address designated in the public agency’s rules and regulations
adopted pursuant to KRS 61.876.” KRS 61.872(2)(b) (emphasis added). Here, the
Sheriff’s Office explained it did not intentionally refuse the Appellant’s emailed
request because a technical issue resulted in the records custodian’s email address
failing to accept the Appellant’s email. The Sheriff’s Office has further explained the
technical malfunction has been corrected.1
In contrast, the Sheriff’s Office has not explained why no fax machine was
detected when the Appellant attempted to send his request to the fax number listed
on its website. Although the Act may not require a public agency to accept requests
by facsimile, the Act does require a public agency to enact rules and regulations that
explain how a request for records may be submitted. KRS 61.876(1)(d).2 And a person
requesting records may appeal to the Attorney General if he believes “the intent of
[the Act] is being subverted by an agency short of denial of inspection, including but
not limited to . . . the misdirection of the applicant.” KRS 61.880(4). Furthermore, the
public agency carries the burden of sustaining its action. KRS 61.880(2)(c).
Here, the Sheriff’s Office’s rules and regulations posted on its website state it
would accept requests to inspect records through a certain fax number. But when the
Appellant attempted to fax his request to that number, no fax machine was detected.
1
After receiving notice of this appeal, the Sheriff’s Office issued a response to the Appellant’s
request, which it granted in part and denied in part. That partial denial is not at issue in the present
appeal.
2
While KRS 61.872(2)(b) provides four acceptable methods of delivery, KRS 61.876(1)(b) only
requires a public agency’s rules and regulations to include “[t]he title, mailing address, and e-mail
address of the official custodian of the public agency’s records.” The absence of any requirement to
include a fax number in an agency’s rules and regulations suggests the Act does not obligate a public
agency to possess a fax machine or to actually accept requests to inspect records by facsimile.The Sheriff’s Office has not explained why it failed to receive the Appellant’s
transmission to the fax number listed in its rules and regulations. Because the
Appellant’s attempt to submit his request resulted in “no fax machine detected on the
receiving end,” and the Sheriff’s Office has not met its burden to explain why that
result occurred, the Sheriff’s Office’s rules and regulations misdirected the Appellant,
within the meaning of KRS 61.880(4). See 20-ORD-055 (finding an agency
misdirected an applicant by misstating the available means of submitting a request).
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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#10
Distributed to:
Mr. Tyler Fryman
Ms. Jana King
Sheriff Ryan Norman
Cade Foster, Esq.