Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Eastern Kentucky University Parking Appeals Committee violated the Open Records Act in the disposition of Matthew James Dean's undated 1 emailed request for a record indirectly identified as follows:
In addition, if the members of the parking appeals committee ARE required to sign some form of confidentiality agreement, I would appreciate seeing one that has been signed by the current committee and its members.
For the reasons that follow, we find that the Committee's disposition was substantively correct, and that any procedural deficiencies were mitigated by the fact that Mr. Dean's request was submitted by email, a mode of communicating open records requests that is not currently recognized under the Act.
By letter dated January 26, 2006, 2 Mr. Dean initiated an appeal to this office in which he leveled a variety of charges against the University's Parking Appeals Committee and its adjudication of his complaint concerning receipt of a parking citation in the Fall 2004 semester. These allegations focus, in general, on the conduct of the Committee's meetings and, in particular, on the Committee members' access to, and use of, the complainant's personally identifiable information, which, in Mr. Dean's view, enjoys protection under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, et seq. Appended to Mr. Dean's letter of appeal are letters and emails dating back to November 2006, 3 documenting his ongoing dispute with the Committee.
In correspondence directed to this office following commencement of this appeal, University Counsel Cheryl K. Harris responded to Mr. Dean's appeal. Having reviewed the letters and emails appended to this appeal, Ms. Harris asserted that "the University did not consider Mr. Dean to have made an Open Records request in his two December 12, 2006, email communications." Ms. Harris focused on the absence of any requests for documentation or records in these lengthy communications. Nevertheless, she took the opportunity "to inform [the Attorney General's] Office and Mr. Dean that no . . . documents [responsive to this indirect request for confidentiality agreements signed by members of the Committee] exist[] . . . ." Having done so, we find that the Eastern Kentucky University Parking Appeals Committee's duty under the Open Records Act is fully discharged.
It is the decision of this office that although Mr. Dean's request largely satisfied the statutory requirements codified at KRS 61.872(2), 4 the Committee was not legally obligated to honor his emailed request. 5 This office has recognized on a number of occasions that "unless the parties (meaning the requester and the public agency) enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by email, " an emailed request need not be honored. 98-ORD-167; 98-ORD-193; 03-ORD-162; 04-ORD-090 (footnote 2); 06-ORD-018; 06-ORD-086; 06-ORD-134. These decisions were premised on the statutory language found at KRS 61.872(2) , providing that open records requests "shall be hand delivered, mailed, or sent via facsimile, and requiring the applicant's signature." The Committee was therefore on solid legal footing in refusing to honor Mr. Dean's request, though we suggest that the Committee develop a standard written response advising open records requesters of its policy relative to refusing emailed requests and that it promptly transmit such response to open records requesters by hand delivery, U.S. Mail, or facsimile.
The Committee has availed itself of the opportunity presented by this appeal to formally notify Mr. Dean that it maintains no records responsive to his request. Having done so, we find that it has fully discharged any legal obligation that might have been triggered by Mr. Dean's improperly transmitted open records request. This position is consistent with a long line of decisions recognizing that a public agency cannot produce for inspection a record that does not exist, and that the agency discharges its statutory duty by affirmatively so notifying the requester. See, e.g., 02-ORD-163 and 06-ORD-223, and authorities cited therein. In the absence of a prima facie showing by Mr. Dean that the Eastern Kentucky University Parking Appeals Committee maintains signed confidentiality agreements, we find that the Committee properly disposed of his records request by notifying him that no responsive records exist.
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.
Matthew James Dean
Alex Combs
Cheryl K. HarrisCoates Bldg., Room 205Eastern Kentucky University521 Lancaster AvenueRichmond, KY 40475
Footnotes
Footnotes
1 At the top of Mr. Dean's email, the following identifier appears:
Supplemental response to 12/12/06 response 12/12/06 response from EKU UC [sic] [.]
We assume Mr. Dean placed this identifier on the email, along with the handwritten designation "Exhibit 6," when he submitted his appeal. The email does not contain an original date.
2 We assume Mr. Dean's letter of appeal was prepared on January 26, 2007, inasmuch as it did not reach this office until January 29, 2007, and much of the referenced correspondence post-dates January 26, 2006.
3 Pursuant to KRS 61.880(2)(a) and 40 KAR 1:030 Section 1, we are foreclosed from considering any communications exchanged by Mr. Dean and the Committee which were not appended to his request.
4 KRS 61.872(2) requires only "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." Mr. Dean's request was, by no means, a model of clarity, but it was marginally sufficient under this provision.
5 The fact that Mr. Dean did not identify his request as a request made under authority of KRS 61.870, et seq. is not dispositive. It is not incumbent on the requester to identify his request as an open records request in order to trigger the requirements of the Act. George William Sykes v. James Kemper, Ky. App., 2000-CA-000714-MR (3/30/01). Although Sykes is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any case in any court of this state, it is indicative of the view the courts might adopt in a later published opinion relative to the duties of public agencies upon receipt of an open records request not clearly identified as such.