23-ORD-145
June 28, 2023
In re: Scott Roberts/Jefferson County Clerk
Summary: The Office cannot find that the Jefferson County Clerk (the
“Clerk”) violated the Open Records Act (“the Act”) when she failed to
respond to a request she did not receive as a result of a spam email filter.
Open Records Decision
On May 22, 2023, Scott Roberts (“Appellant”) emailed two requests to the Clerk
to inspect various records relating to the May 2023 primary elections.1 Although the
Appellant received an automatic message acknowledging receipt of his email, he
received no further response from the Clerk by May 31, 2023. This appeal followed.
Under KRS 61.880(1), upon receiving a request for records under the Act, 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.” On appeal,
the Clerk explains she did not respond to the Appellant’s requests because the email
account’s spam filter captured the Appellant’s email. Accordingly, the Clerk claims to
have not received the request. This Office has previously found that the interception
of requests by spam filters or other anti-phishing programs that prevents requests
from reaching the recipient is tantamount to the agency not receiving the request.
See, e.g., 23-ORD-064. Accordingly, the Office cannot find that the Clerk violated the
Act when she did not receive the request.
1
Specifically, the Appellant sought video surveillance tapes of the election machines from 6:00 p.m.
on May 16, 2023, to 6:00 p.m. on May 17, 2023. The Appellant also sought, “in spreadsheet format (.csv
or .xlsx) [the Clerk’s] complete voter sign-in rosters for every precinct, absentee, early, and election
day voters from the May 2023 primary.”A party aggrieved by this decision may appeal it by initiating an 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
#217
Distributed to:
Scott Roberts
Bobbie Holsclaw
Frank Friday
Natalie Johnson
Nicole Pang
Alice Lyon