23-ORD-064
March 22, 2023
In re: Anne Coorssen/Oldham County Schools
Summary: Oldham County Schools (“the District”) did not subvert the
intent of the Open Records Act (“the Act”) when it did not respond to a
request it did not receive as a result of a technical error that has since
been corrected.
Open Records Decision
On January 25, 2023, Anne Coorssen (“the Appellant”) emailed to the District’s
Superintendent and his secretary the first of four requests to inspect records. She
emailed them her second request on February 9, and her third and fourth requests
on February 10, 2023. She received no response. She then sent them additional emails
asking about the status of her requests, but having received no response to any of her
emails, the Appellant initiated this appeal on February 25, 2023.1
Upon receiving a request to inspect public records, a public agency “shall
determine within five (5) [business] days . . . 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 five (5) day period, of its decision.” KRS 61.880(1). After the
appeal was initiated, the District responded to the Appellant’s requests and provided
records responsive to all four of them.2 However, it claims to have first received the
1
The Appellant initiated four separate appeals. However, the Office has consolidated them because
the appeals involve the same parties and subject matter. See, e.g., 23-ORD-002; 23-ORD-34.
2
However, with respect to the Appellant’s request for a “copy of all contracts, agreements, and other
documents including but not limited to email correspondence, board enclosures, board minutes and
letters to or from the Kentucky School Boards Association regarding the adoption and implementation”
of a specific policy, the District provided some responsive emails and claimed no other documents exist
because the District “has not engaged in any formal process to adopt” the policy. The Appellant does
not challenge the District’s assertion that no additional records exist in response to this request.Appellant’s requests when it received notice of this appeal. The District explains that,
upon further review of the Superintendent’s and his secretary’s email accounts,
apparently an anti-phishing tool in the District’s email program had blocked the
Appellant’s emails from reaching the intended recipients.3 Accordingly, neither the
Superintendent nor his secretary ever received the requests.
Because the District has now provided the records responsive to the
Appellant’s requests, this Office asked the Appellant whether it should consider this
appeal moot. See 40 KAR 1:030 § 6 (“If the requested documents are made available
to the complaining party after a complaint is made, the Attorney General shall
decline to issue a decision in the matter”). The Appellant argues the appeal is not
moot because she believes the District’s failure to respond within five business days
subverted the intent of the Act. See KRS 61.880(4) (“If a person feels the intent of [the
Act] is being subverted by an agency short of denial of inspection, including but not
limited to . . . delay past the five (5) day period described in [KRS 61.880(1)] . . . the
person may complain in writing to the Attorney General, and the complaint shall be
subject to the same adjudicatory process as if the record had been denied”).
This Office previously has found that timely access to public records is an
important purpose of the Act, and a public agency’s failure to comply with the
procedural requirements of the Act constitutes a violation that is not cured by its
later production of records. See e.g., 19-ORD-080; 18-ORD-241; 13-ORD-052. If
requested records are not exempt from inspection, KRS 61.880(1) requires the public
agency to produce them within five business days of its receipt of the request. The
types of violations KRS 61.880(4) describes are those inhibiting a requester’s
statutory right of timely access to records, i.e., they are “short of denial.” As such,
claims that a public agency has subverted the intent of the Act under KRS 61.880(4)
do not become moot simply because the public agency eventually provides the
requested records. See, e.g., 18-ORD-241. Accordingly, this appeal is not moot.
Nevertheless, the District did not subvert the intent of the Act’s requirements
to provide timely access to records. KRS 61.880(1) requires a public agency to respond
within five business days of receiving the request. Here, the District did not receive
the requests because it did not know the Appellant’s emails were blocked by its email
program. Because the District has explained why it did not receive the requests, and
further explains it has taken corrective action to ensure the Appellant’s email address
will not be blocked in the future, the Office finds that the District did not subvert the
3
Specifically, the Appellant allegedly possesses a District email account. However, she used her
personal email account to submit the requests. Because her personal email account was similar to, but
not the same as, her District email account, the software automatically presumed the Appellant’s
personal email account was attempting to spoof the credentials of her District email account in order
to send a phishing email. The District has since “whitelisted” the Appellant’s personal email address,
i.e., registered it as an acceptable email account.intent of the Act. See, e.g., 23-ORD-026 (finding that an agency did not violate the Act
when the email address of its records custodian was temporarily unavailable due to
a “technical error”).
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#087-90
Distributed to:
Anne Coorssen
Eric G. Farris