23-ORD-153
June 29, 2023
In re: Pam Cradic/Menifee County Clerk
Summary: The Office cannot find that the Menifee 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 23, 2023, Pam Cradic (“Appellant”) emailed two requests to the Clerk
to inspect various records relating to the May 2023 primary elections.1 Having
received no further response from the Clerk by June 1, 2023, the Appellant initiated
this appeal.
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
not to have 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
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.”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.2
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
#227
Distributed to:
Pam Cradic
Krystal Chapman
Betty Megan Williams
2
After the appeal was initiated, the Clerk responded to the requests and advised that neither the
surveillance video nor the requested voter roster are available at this time. A public agency may delay
access to public records that are “in active use, storage, or not otherwise available” if it notifies the
requester of the earliest date on which the records will be available and gives a detailed explanation
for the cause of delay. KRS 61.872(5). Although the Clerk explained that the video was unavailable
because it must continue to record until 30 days after the election, KRS 117.295(1), she did not notify
the Appellant of the earliest date on which the video would be available. Accordingly, the Clerk’s
response failed to comply with KRS 61.872(5). The Clerk also did not explain why the voter rosters are
currently unavailable or the earliest date on which those records would be available. However, the
Office notes that numerous appeals involving multiple county clerks regarding the same records have
been submitted. From all these appeals, it is clear the county clerks do not actually possess electronic
copies of the voter rosters that can be made available for public inspection. Rather, the vendors with
which they have contracted are responsible for providing the county clerks with electronic copies of
the voter rosters, as only those vendors have access to the data contained within the e-polling signature
devices from which the voter roster can be generated. As such, the voter rosters were not “in active
use, storage, or not otherwise available” at the time of the request. Rather, they did not exist at the
time of the request, and did not come into existence until created by the vendor.