Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Community and Technical College System subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), in declining to provide documents responsive to John T. Byrd's April 10, 2013, request for "copies of all documents related to the recently concluded investigation into a complaint filed against Mr. Danny O'Bryan by Human Resources, the Humanities Division, the English Department, and Student Services or any other KCTCS official or department" by facsimile transmission or e-mail. In a timely written response, General Counsel/Official Records Custodian J. Campbell Cantrill III advised Mr. Byrd that "Jefferson CTC staff" had located thirty-eight (38) pages of responsive documents and portions thereof, including social security numbers, home addresses, etc. would be redacted in accordance with KRS 61.878(1)(a); 1 however, KCTCS indicated that unredacted versions of the documents would be available upon receipt of a signed release by Mr. Byrd's client. Mr. Cantrill noted that KCTC "requires advance payment of costs prior to mailing responsive records." He further explained that Mr. Byrd "had the option of inspecting the records in the office of the undersigned or having them mailed" 2 to him and that a fee of ten (10) cents per page 3 would be charged for each copy provided, specifically $ 5.30 (38 pages at $.10 per page and postage) if he wished to exercise the latter option and $ 3.80 if he wished to pick up the copies instead. Given the mandatory language of KRS 61.872(3) , this office finds no error in the agency's disposition of the request.
Because Mr. Byrd had not received a copy of Mr. Cantrill's April 15 response by late in the day on April 15 (the third business day following receipt), 4 Deborah Kent, Of Counsel with the Byrd Law Firm, contacted KCTCS Legal Services by telephone regarding the status of the request. Staff Attorney Pam Duncan advised Ms. Kent by e-mail that KCTCS "fulfilled your Open Records request, and it is in the mail. " Ms. Duncan anticipated that Ms. Kent would receive the agency's written response by the next day, April 16. Upon learning that said response had not arrived in regular mail on April 19, Ms. Duncan advised Ms. Kent that KCTCS had "responded to the individual who made the request." However, she attached a copy of the April 15 letter to her April 19 e-mail and requested that Ms. Kent "check with your partner to determine whether he received the letter." With regard to a date for inspection, KCTCS advised that "the information necessary is in the letter." In reply, Ms. Kent asserted that the agency's response "may satisfy the letter of the Open Records Act, but it does not satisfy the spirit of the law." Because KCTCS was then aware that its reliance on U.S. Mail for timely communication was "misplaced," Ms. Kent asserted that its continued "reliance on that method when alternates such as scans and faxes are available and minimally inconvenient does subvert the intention of the Act." Also "subversive," in her view, was the requirement that "we either travel to Versailles for inspection or copying, or have the records mailed and wait another eight days for KCTCS' mail to arrive."
In reply, Mr. Cantrill promptly advised that all public agencies must designate an official custodian of records. "I am that custodian, " he continued, "and my office is in Versailles. Therefore, the System Office serves as a suitable facility for inspection of nonexempt public records. " Implicitly relying upon KRS 61.872(3), and quoting page 5 of "Your Duty Under the Law," http://ag.ky.gov/civil/orom/Documents/YourDutyUndertheLaw_708_.pdf, Mr. Cantrill correctly noted thatpublic agencies must, upon request, mail copies to a person whose residence or principal place of business is outside the county in which the records are located. He further explained that documents "regarding the EthicsPoint complaint are located here at my office, and the primary access to human resource records for all of the colleges also resides here at the System Office." KCTCS maintained that upon receipt of the request made by Mr. Byrd, the agency "responded pursuant to our obligations and duties" under the Open Records Act, " which "has not yet changed to require agencies to respond to electronic requests, nor to begin providing records electronically or without payment of associated costs. Your options for receiving the records were described in the letter that was both mailed and emailed to you." Mr. Cantrill advised that if Ms. Kent did not "trust the U.S. mail service," her firm could "provide shipping materials for either UPS or FedEx for us to use to send you the records when you send payment for them." He also reiterated that redaction of the records would be necessary under KRS 61.878(1)(a) unless Ms. Kent provided a release from Mr. O'Bryan authorizing the agency to provide unredacted copies to her and/or the Byrd Law Firm. Such a release, Mr. Cantrill reiterated, "would render all this discussion of open records unnecessary."
Ms. Kent maintained that any further delay was "unacceptable as it denies Mr. O'Bryan's due process rights." In light of "these unusual delays," Ms. Kent asserted that her firm's request for KCTCS to communicate "by use of common modern technology is reasonable." The agency's refusal to accommodate this request "simply because the law does not require it," although it has demonstrated having "that capacity and could us[e] it to accomplish the intent of the Act," she concluded, "is not." Ms. Kent initiated this appeal by fax on April 24, 2013, noting that Mr. Cantrill's April 15 response "did not include the records requested. It simply states that the records requested will be sent to Louisville by U.S. mail after payment of $ 3.80 is received at KCTCS." Ms. Kent reiterated that her firm asked KCTCS to forward the documents requested via e-mail or fax "in consideration of the fact that KCTCS now knows that correspondence between Louisville and Versailles may not arrive for over a week." In her view, KCTCS "is seeking to subvert the intent of the Open Records Act by delaying production of documents for another two to three weeks" because the Spring Semester at JCTC will end soon and the students "used by the school in its termination action" will not be reachable.
Mr. Cantrill subsequently advised that he received the request on April 11, and responded by U.S. mail within three business days. Upon being notified that the Byrd Law Firm had not received the agency's response as of April 19, KCTCS forwarded a copy to Ms. Kent electronically. Mr. Cantrill "cannot conjecture as to why the letter was not received by them" but confirmed that it was "mailed in a timely fashion by my staff." According to Mr. Cantrill, KCTCS has "no interest in extending the appeal process for Ms. Kent's client so we have no reason to delay." He reiterated that Ms. Kent has been advised that a signed release from her client would "obviate the open records process." Mr. Cantrill does not read the Open Records Act "to require public agencies to provide documents electronically, or gratis." Once Ms. Kent received the April 19 letter, he concluded, she had "all the information necessary to receive the records. Her failure to retrieve the records is not due to any action or alleged inaction on the part of KCTCS."
In reply, Ms. Kent advised that Mr. Cantrill's April 15 response arrived on May 2, the same day on which it received the agency's April 29 response to her appeal. Her concern "is not about payment of $ 3.80 but how to get that money to KCTCS. Then, when KCTCS gets the money, how to get the documents in a timely fashion." Ms. Kent "would even take Mr. Cantrill's suggestion to get a client release and fax it tomorrow, but if KCTCS won't scan and email the documents we still have to wait weeks for them to arrive in the mail. " Although Ms. Kent's fundamental point is well-taken, and the request may indeed be reasonable under the circumstances presented, i.e. , in light of random delays in mail delivery, the fact remains that KCTCS complied with relevant provisions of the Open Records Act, which does not currently require public agencies to provide records by facsimile transmission or e-mail, 5 in responding to her written request.
To begin, the Attorney General "is not equipped to resolve factual disputes relating to the actual delivery and receipt of an open records request or agency response." 09-ORD-023, p. 3; 08-ORD-066. However, public agencies must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act, providing that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." The record on appeal establishes that KCTCS did exactly that in first mailing a hard copy of its written response on April 15 and then sending a second copy via e-mail upon being notified of the inexplicable delay in regular mail delivery.
The Attorney General has recognized that KRS 61.880(1) "does not specify the method of transmission by which an open records response must be communicated. Compare KRS 61.872(2) (application to inspect public records "shall be hand delivered, mailed, or sent via facsimile to the public agency" )." 98-ORD-167, p. 5. Nevertheless, the Attorney General has concluded, "the phrase 'notify in writing' is commonly understood to mean to give notice by committing words to paper and transmitting them by ordinary means of communication, i.e., by mail. We find no authority in the statute, express or otherwise, for an agency[] discharging this duty by e-mailing the response in lieu of a standard written response. " 98-ORD-167, p. 5. More recently, this office specifically held that the Open Records Act "makes no mention of sending records to a requester via facsimile transmission and certainly does not require it." 11-ORD-007, p. 4. Applying the rule of statutory construction set forth at KRS 446.080(4), this office has therefore determined "that until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests, we must construe the phrase 'notify in writing' according to common and approved usage of that language." Id.; 12-ORD-036. The Attorney General has found that the requester and the agency "may enter into an express agreement, or consent by a clear course of conduct 6 to transact their open records business by email." Accord, 99-ORD-129; 03-ORD-162; 07-ORD-105; 09-ORD-224. No such agreement, or course of conduct, existed between Mr. Byrd/Ms. Kent and KCTCS. The legally relevant facts are undisputed here and the law, as currently written, is unambiguous.
Resolution of this appeal turns, in large part, on the language of KRS 61.872(3), pursuant to which:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
As the Attorney General has often recognized, the Open Records Act contemplates access to records " by one of two means : On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4 (emphasis added); 10-ORD-213. Thus, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." 7 Id., p. 5. However, KRS 61.874(1) provides that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." In addition, KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, . . . ."
KCTCS agreed, in a timely written response, to mail the documents requested to Ms. Kent upon receipt of a reasonable copying fee and postage costs or, in the alternative, to permit on-site inspection of the documents and provide copies upon request and payment of ten cents per page. Nothing else is required. In construing these procedural requirements, the Attorney General has observed:
The Act is a double-edged sword. Although it guarantees the public the right to inspect nonexempt records, it mandates that as a precondition to inspection a requester must comply with certain procedural requirements, including submission of a written request and prepayment for copies. As we have noted, we believe that the Act was never intended to frustrate access to records, and that an agency is statutorily obligated to provide a requester with timely access at a reasonable fee. Nevertheless, we also believe that an agency is justified in enforcing the procedural requirements of the Act.
96-ORD-7, pp. 4, 5; 08-ORD-239. One such requirement is prepayment for copies of records transmitted by mail. See also 94-ORD-30; 99-ORD-30; 08-ORD-135. "The statute contains no provision for waiver of the prepayment requirement for any requester. " 08-ORD-239, p. 3. Simply put, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; 92-ORD-1136. Accordingly, KCTCS acted in compliance with provisions of the Open Records Act in requiring advance payment of a reasonable copying charge that does not exceed the cost of duplication, and enforcing a standard policy relative to assessment of the charge. 05-ORD-230, p. 7. See 08-ORD-097 (Attorney General was unable to conclude that agency violated the Act in conditioning release of documents requested on prepayment of reasonable copying and postage charges); 99-ORD-030.
Here, as before, in applying the rule of statutory construction set forth at KRS 446.080(4) the Attorney General must conclude that until the legislature statutorily expands KRS 61.872 to include facsimile transmission and/or e-mail among the permissible methods of transmitting agency responses to requests made under the Open Records Act (or KRS 61.872(2) in relation to submission of the actual requests), "we are confined to the statutorily recognized methods 'according to common and approved usage of the language' employed in the statutes." 12-ORD-036, p. 2. "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962).
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.
Distributed to:
Deborah KentJ. Campbell Cantrill III
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