Opinion
Opinion By: Andy Beshear, Attorney General; Sarah Ellen Eads Adkins, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Public Advocacy ("DPA") violated the Open Records Act by partially denying an open records request by Appellant Chris Hawkins. For reasons stated herein, we find that DPA violated the Open Records Act, in part, by failing to make a good faith search for the requested records as described more fully below.
On September 26, 2018, Appellant submitted a Request to Inspect Public Records form to the Department of Public Advocacy. Though some factual details are absent from the record, DPA claims to have received the record on October 14, 2018. Appellant requested: "(1) email sent by Jennie Fisk's supervisor to KSP correctional Sergeant Robert Harris and email received by Jennie Fisk from Sergeant Harris, regarding disciplinary report #KSP-2018-01784 and/or 'blue colored paper.' (2) Last 2 correspondences sent to [him] from Jennie Fisk." DPA responded on October 17, 2018, with the two requested letters from Ms. Fisk, satisfying the second part of Appellant's request, but failed to provide the emails requested. DPA stated in response to this appeal that Appellant "would need to contact the Commonwealth Office of Technology for emails referenced in his letter." Appellant initiated this appeal on October 17, 2018.
As to DPA's denial of the requested emails, the Open Records Act does not require an agency to conduct an exhaustive search of records or to embark on an unproductive fishing expedition when the likelihood of finding records is slight. See 95-ORD-96 (compiling cases). However, the act does require that "an agency to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." See 95-ORD-96.
DPA was required to make a search in good faith to locate the requested emails. DPA responded on appeal that they made no search, much less a search that would rise to the level of good faith. Instead of conducting a good faith search, DPA directed Appellant to the Commonwealth of Technology for the emails he requested. By failing to conduct a good faith search for the emails, DPA violated the Open Records Act.
Finally, Appellant claims that he did not receive the letters DPA sent in response to his Open Records Request fulfilling his request for the "[l]ast 2 correspondences sent to me from Jennie Fisk" because they were confiscated by Kentucky State Penitentiary guards. This is not a violation of the Open Records Act. However, DPA attached an additional copy of the requested letters to their response to this appeal, mooting this portion of Appellant's request.
A party aggrieved by this decision shall 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.