Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fayette County Public Schools (FCPS) properly handled the open records request of Lewis E. Wiggens. From the information provided this office, the following sequence of events occurred.
By e-mail, dated November 30, 1998, to Karolyn Kell, Director, Communications and Community Relations, FCPS, Mr. Wiggens asked:
Please advise as to what department or person that I may make an open records request to. Also, as to what format is necessary to obtain the records. My request will be to obtain personnel files and contracts. Specifically, I would like copies of Mr. Herb Hammond, Mrs. Diane Woods, Mr. Ken Cox and Dr. Peter Flynn's current contract and personnel files.
By e-mail dated December 1, 1998, Ms. Kell responded to Mr. Wiggens, advising him that she had referred his request to FCPS's Human Resource Department.
By e-mail dated December 2, 1998, Mr. Wiggens asked to be advised as to whom in the Human Resources Department his request had been sent to, in order that he could contact them and set up a time frame.
By letter dated January 22, 1999, Elizabeth J. Fugazzi, Assistant to the Superintendent, FCPS, advised Mr. Wiggens:
I am writing as a follow up to our phone conversation this morning. I repeat that I will be very willing to work with you on your Open Records Request as soon as I receive it. Today when I asked you to send your request to me as Custodian of Open Records, you refused to do so. Therefore, I am in the process of trying to locate the e-mail that you told me you sent to Karolyn Kell. As Custodian of Open Records, I will respond to your request within the working three days as prescribed by law as soon as you submit it.
On January 23, 1999, Mr. Wiggens e-mailed Ms. Fugazzi, stating in part, that he did not refuse to send her his open records request. He advised that he told her that the request had been made previously on December 1, 1998 and as of today's date [January 23, 1999], FCPS was in violation of the Open Records Act by about fifty days.
After a subsequent exchange of e-mails, Ms. Fugazzi provided Mr. Wiggens with a response to his November 30, 1999 e-mail message to Ms. Kell. In her response, dated January 28, 1999, Ms. Fugazzi stated:
This is in response to your e-mail message sent to Karolyn Kell on November 30, 1998, a copy of which I obtained in my office on Monday, January 25, 1999. Your e-mail specifically states, "Please advise as to what department or person that I may make an open records request to. Also, as to what format is necessary to obtain the records. My request will be to obtain personnel files and contracts." Your request via e-mail is technically insufficient under the Open Records law for two reasons:
1. KRS 61.872(2) states, "The application shall be hand delivered, mailed, or sent via facsimile to the public agency. "
2. Your e-mail to Ms. Kell simply asks for information about how to file an open records request.
Although technically not an open records request, in the spirit of cooperation, I am willing to accommodate it as such. Please be advised that I am in the process of gathering the documents you have requested. I anticipate that the records will be available for inspection on Monday, February 1, 1999. Please call my secretary, Paula, (281-0102) to arrange a time to inspect. If you would rather receive the copies by mail, Paula can advise you of the cost of the copies and mail charges, and once I have received payment from you, I will be glad to mail them to you.
By cover letter, dated February 1, 1999, Ms. Fugazzi notified Mr. Wiggens that she had enclosed the records he had requested, advising him that pursuant to KRS 61.878(1)(a) that FCPS was withholding records of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. She identified the records withheld under KRS 61.878(1)(a). She further advised that, pursuant to KRS 61.878(1)(i), all preliminary notes and correspondence (including inner-office correspondence and memoranda) which were not intended to give notice of final action and correspondence with private individuals are exempt from disclosure, and had not been provided. Ms. Fugazzi affirmatively stated that "no letters of complaint or final disciplinary action had been withheld. "
In his letter of appeal to this office, Mr. Wiggens acknowledged receipt of the records, but questioned the statement that no letters of complaint had been withheld, particularly in regards to Herb Hammond. Mr. Wiggens stated he personally knew of several letters of complaint that had been sent to the Henry Clay principal and the FCPS Central Office about Herb Hammond and had attended several meetings with other parents and FCPS personnel.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Virginia W. Gregg, General Counsel, FCPS, provided this office with a response to the issues raised in the letter of appeal. In her response, Ms. Gregg stated in pertinent part:
In Mr. Wiggens' original e-mail message to Karolyn Kell, he requests "copies of Mr. Herb Hammond, Mrs. Diane Woods, Mr. Ken Cox and Dr. Peter Flynn's current contract and personnel files." Copies of the requested contracts and non-exempt documents from the official personnel files were provided to Mr. Wiggens by letter dated February 1, 1999. As stated in the February 1, 1999 letter, no letters of complaint were located in Herb Hammond's personnel file. Additionally, no records from meetings held between Mr. Wiggens, other parents and District personnel were located in Mr. Hammond's personnel file.
For the reasons that follow, we conclude that any procedural deficiency which may have occurred as a result of the ambiguity in the nature of Mr. Wiggens's November 30, 1998 request was mitigated by FCPS's substantive response which provided him with the records he requested.
The first issue to be addressed is whether Mr. Wiggens's November 30, 1998 e-mail to Ms. Kell constituted an open records request. FCPS takes the position it was a request for information as to whom a request for copies of certain personnel records should be made and in what format, listing the names of the four FCPS employees for which records of their current contracts and personnel files would be sought. Mr. Wiggens argues it was an open records request.
We begin by noting that neither Mr. Wiggens nor the FCPS fully complied with the procedural requirements of the Open Records Act in the exchange that precipitated this appeal. KRS 61.872 (2) imposes certain obligations on a person who wishes to inspect public records, and permits the custodian to "require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." KRS 61.880(1) imposes corollary obligations on a public agency in responding to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, 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 three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Mr. Wiggens's November 30, 1998 e-mail indicated that he was going to make an open records request for certain FCPS employee contracts and personnel files. Although the e-mail indicated the nature of the records he would request, nothing in the e-mail suggested that it was, in fact, to be treated as an open records request. We agree with FCPS's view that this was more of a request for information rather than a formal open records request. It was not unreasonable for FCPS's to interpret Mr. Wiggens's November 30, 1999 language "my request will be" to mean that a formal request would be forthcoming. At that point of time, Mr. Wiggens had not made his open records request invoking his right of inspection. KRS 61.872. 1 On the other hand, Mr. Wiggens did make an affirmative request via his December 2, 1998 e-mail to Ms. Kell to be advised as to whom in the Human Resources Department his request had been sent to, in order that he could contact them and set up a time frame. FCPS has not indicated that a response to this was made.
These circumstances support more a misunderstanding between the parties than an attempt to subvert the intent of the Open Records Act. Accordingly, we find that any procedural violation that may have been occasioned by the ambiguity described in Mr. Wiggens's November 30, 1998 e-mail is mitigated by the FCPS's subsequent actions in regard to the substance of Mr. Wiggens's records request.
Turning to the substantive issues in this appeal, we find that FCPS substantially complied with the Open Records Act by providing Mr. Wiggens with copies of the records he requested. Mr. Wiggens questions the portion of FCPS's response which stated, "no letters of complaint or final disciplinary action have been withheld. " In his letter of appeal, Mr. Wiggens states:
I personally know that several letters of complaint were sent to the Henry Clay principal and/or the FCPS Central office. There also have been several meetings held among myself, other parents and FCPS personnel concerning Herb Hammond. No record of these meetings have been entered into this file.
Addressing this contention in her response to the letter of appeal, Virginia Gregg reaffirmed FCPS's statement in its February 1, 1999 response that no letters of complaint or records from meetings held between Mr. Wiggens, other parents and District personnel were located in Herb Hammond's personnel file.
Mr. Wiggens requested copies of certain FCPS employee contracts and personnel files. The FCPS provided copies of these records. Thus, we conclude the agency's actions were responsive to Mr. Wiggens's request and we find no violation of the Open Records Act. The fact that certain records which Mr. Wiggens was seeking were not contained in the records he requested and received does not in and of itself constitute a violation of the Open Records Act.
Mr. Wiggens did not, in the instant appeal, specifically request copies of letters of complaint or records from meetings held between Mr. Wiggens, other parents and District personnel relating to Herb Hammond. He may wish to submit another request and specifically request those documents.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.872(2) provides that an application to inspect public records "shall be hand delivered, mailed, or sent via facsimile to the public agency. " Under KRS 61.872(2), an official custodian may require a written application for a request of public records. In the instant case, FCPS advised Mr. Wiggens his request was technically insufficient because he had not met the requirements of KRS 61.872(2). However, because the FCPS provided Mr. Wiggens with the records he requested, we need not address that issue here. In 98-ORD-167, we found no authority in KRS 61.872(2), express or otherwise, for an agency's discharging this duty by e-mailing its response in lieu of a standard written response. In that decision, we held that absent an agreement by the requester to accept the agency's response electronically, the agency did not comply with KRS 61.880(1) in communicating its response by e-mail. We did opine, however, that the parties (meaning the requester and the public agency) may enter into an express agreement, or consent by a clear course of conduct, to transmit their open records business by e-mail.