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23-ORD-145

June 28, 2023

In re: Scott Roberts/Jefferson County Clerk

Summary: The Office cannot find that the Jefferson County Clerk (the
“Clerk”) violated the Open Records Act (“the Act”) when she failed to
respond to a request she did not receive as a result of a spam email filter.

Open Records Decision

On May 22, 2023, Scott Roberts (“Appellant”) emailed two requests to the Clerk
to inspect various records relating to the May 2023 primary elections.1 Although the
Appellant received an automatic message acknowledging receipt of his email, he
received no further response from the Clerk by May 31, 2023. This appeal followed.

Under KRS 61.880(1), upon receiving a request for records under the Act, a
public agency “shall determine within five (5) [business] days . . . after the receipt of
any such request whether to comply with the request and shall notify in writing the
person making the request, within the five (5) day period, of its decision.” On appeal,
the Clerk explains she did not respond to the Appellant’s requests because the email
account’s spam filter captured the Appellant’s email. Accordingly, the Clerk claims to
have not received the request. This Office has previously found that the interception
of requests by spam filters or other anti-phishing programs that prevents requests
from reaching the recipient is tantamount to the agency not receiving the request.
See, e.g., 23-ORD-064. Accordingly, the Office cannot find that the Clerk violated the
Act when she did not receive the request.

1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023 primary.”A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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
emailed to OAGAppeals@ky.gov.

Daniel Cameron

Attorney General

s/ Marc Manley

Marc Manley

Assistant Attorney General

#217

Distributed to:

Scott Roberts
Bobbie Holsclaw
Frank Friday
Natalie Johnson
Nicole Pang
Alice Lyon

Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
Scott Roberts
Agency:
Jefferson County Clerk
Forward Citations:
Neighbors

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