Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Kentucky State Treasurer (Treasurer) relative to the May 16, 2006, emailed request of Mindy Bonin for "a copy of ALL emails sent by any person(s) in the Treasury Department including b[ut] not limited to Treasurer Jonathan Miller, to any person(s) in the Unclaimed Property Division for the dates of March 15, 2006 through April 1, 2006," violated the Open Records Act. For the reasons that follow, we find that the Treasurer timely responded to Ms. Bonin's request, but the response did not satisfy the requirements of KRS 61.872(5).
In her letter of appeal, dated May 23, 2006, Ms. Bonin stated that, as of that date, she had not received a reply to her request.
After receipt of notification of the appeal and a copy of the letter of appeal, David J. Hale, counsel for the Treasurer, provided this office with a response to the issues raised in the appeal. In his response, he first addressed Ms. Bonin's claim that she had received no reply to her request by advising that Treasury employee Kenneth Mansfield had timely responded to Ms. Bonin's email by responding to her email on May 19, 2006. A copy of the response was attached to the Treasurer's response.
Mr. Mansfield's May 19, 2006, response to Ms. Bonin's request, stated:
We will have to get these from the Commonwealth Office of Technology (COT) backup system. As you can imagine, with the current investigation into merit hiring issues and having to produce for the courts all the messages to and from the governor's email account, we might not be high on their priority list. I will keep you up to date on our progress in obtaining these records for you.
In addition to the above, the Treasurer asserted there were several deficiencies with Ms. Bonin's request. First, he argued that it was sent by email, instead of being hand delivered, mailed or sent by facsimile, as required by KRS 61.872(2) and was a blanket request for information, requiring the Treasurer to compile records not otherwise part of a compilation for the agency or public's use. Secondly, he argued that compiling the requested records might place an unreasonable burden on the agency because COT will not be available to assist compiling the records and the Treasurer's information technology staff will need significant amounts of time to obtain all records subject to the request, given its broad scope and the workload of the limited IT staff. Additionally, the Treasurer argued that undoubtedly the blanket request would include emails containing personal or confidential information regarding the owners or claimants to unclaimed property, which would require the redaction of such information, placing a further burden on the agency. Finally, the Treasurer requested that Ms. Bonin be required to disclose whether the non-exempt records requested would be utilized for commercial purposes.
We are asked to determine whether the actions of the Treasurer violated the Open Records Act. We find that the Treasurer's response, although timely provided, did not fully comply with the Open Records Act.
First, we address the issue of the timeliness of the Treasurer's response. In 96-ORD-207, this office addressed the issue of computation of time for a timely response under the Act. In that decision, we stated:
The computation of time statute, KRS 446.030 (1) (a), which would be applicable to time requirements of the Open Records Act, reads as follows:
In the instant case, the emailed open records request was received on Tuesday May 16, 2006. 1 This would be the date or day of the act after which the three-day period of time begins to run. Thus, Wednesday May 17, 2006, would be day one. Thursday, May 18, 2006, would be day two. Friday, May 19, 2006, would be day three, the day the email response was sent. Thus, the response was timely sent within three business days after receipt of the request, as required by KRS 61.880(1). 02-ORD-81.
Next, we address whether the response satisfied the requirements of the Open Records Act. In 01-ORD-38, p. 6-8, this office offered the following discussion relative to a public agency's obligations in responding to an open records request:
KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5) . That statute provides:
In construing this provision, the Attorney General has observed:
99-ORD-13, p. 5, 6.
In the appeal before us, the Treasurer notified Ms. Bonin in the initial response that copies of the records would have to be retrieved from COT, which was busy producing email messages to and from the governor's email account for the courts and Treasury may not be high on COT's priority list, but she would be kept "up to date on our progress in obtaining these records for you." In his supplemental response, the Treasurer advised that COT would not be able to assist his office and the agency's information technology staff would need "significant amounts of time to obtain all records subject to Ms. Bonin's request as currently submitted." These responses were deficient in that they failed to provide Ms. Bonin with the earliest date certain when the records would be available for her inspection. KRS 61.872(5) envisions designation of the place, time, and earliest date certain, when the records will be available for inspection. The responses were deficient in failing to state the place, time, and earliest date certain on which the records would be available and, thus, did not satisfy the requirements of KRS 61.872(5) . 01-ORD-38.
We next address the Treasurer's argument that Ms. Bonin's broad request for any and all records of a particular category was not properly framed and placed an unreasonable burden on the agency to locate and produce the records. In 06-ORD-028, this office discussed a similar argument, observing:
When assessing whether an open records request places an unreasonable burden upon an agency, this office has long recognized:
OAG 90-112, p. 5, citing OAG 84-278, p. 2. In 00-ORD-180, the requester sought copies of "any/all complaints" brought against the Kentucky Department of Corrections or any of its divisions and the Kentucky Parole Board during the preceding two years that involved "the issue of drug testing by Kentucky probation and/or parole officers." In our view, this description of the requested records was "specific and narrow enough" for the Department to identify and locate the records. Id., p. 6. Likewise, a request to inspect only those records "relating to an investigation of the Thomson-Hood Veterans Center regarding the circumstances of an injury to Joseph Adams on June 11, 2002," was narrow enough to meet this standard. 04-ORD-028, p. 8. Such is the case here.
Ms. Bonin requested "a copy of ALL emails sent by any person(s) in the Treasury Department including b[ut] not limited to Treasurer Jonathan Miller, to any person(s) in the Unclaimed Property Division for the dates of March 15, 2006 through April 1, 2006." Although the request is somewhat broad and does not precisely describe the records sought, the requested records are for a narrow two week timeframe. The Treasurer does not describe, with any degree of specificity, the volume of records implicated by these requests, the difficulty in accessing the records, or the problems associated with redacting exempt material from these records. Inasmuch as the burden of proof rests with the agency, we find, on the facts currently before us, that request cannot be denied on the basis of KRS 61.872(6).
Finally, the Treasurer has asked Ms. Bonin to disclose whether the non-exempt records requested would be utilized for commercial purposes. KRS 61.874(4)(b) authorizes public agencies to require a certified statement of commercial purpose from a requester seeking access to records for a commercial purpose as defined in KRS 61.870(4)(a). See 02-ORD-89.
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.
Mindy BoninP.O. Box 2182Abingdon, VA 24212
Kenneth MansfieldCommunications DirectorKentucky State TreasuryUnclaimed Property Division1050 U.S. 127 SouthFrankfort, KY 40601
Brooke ParkerChief of Staff Kentucky State Treasury1050 U.S. 127 SouthFrankfort, KY 40601
Rob JonesDirectorOffice of Civil and Environmental Law700 Capitol AvenueCapitol Building, Ste. 118Frankfort, KY 40601
David J. HaleReed Weitkamp Schell & Vice500 W. Jefferson Street, Ste. 2400Louisville, KY 4020202812
Footnotes
Footnotes
1 In its supplemental response, the Treasurer argues that Ms. Bonin's request was deficient because it was not "hand delivered, mailed or sent via facsimile" as required by KRS 61.872(2). We agree a public agency is not obligated to accept an open records request transmitted by email, but may "consent, by a clear course of conduct, to transact [its] open records business by email. " 98-ORD-167, p. 5. The Treasurer's response by email could be construed as consent to communicate with Ms. Bonin electronically about her request by subsequent email transmissions.