24-ORD-001
January 12, 2024
In re: Jerry Shrecker/City of Owensboro
Summary: The Office cannot find that the City of Owensboro (“the
City”) violated the Open Records Act (“the Act”) when it failed to respond
to a request it did not receive as a result of a spam email filter.
Open Records Decision
On November 8, 2023, Jerry Shrecker (“the Appellant”) emailed a request to
the City seeking copies of various policies and procedures related to the Owensboro
Police Department. Having received no response to his request by November 29, 2023,
the Appellant initiated this appeal.
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 City explains it did not respond to the Appellant’s request because the spam filter
for the email account to which the Appellant submitted his request rejected the
Appellant’s email.1 Accordingly, the City claims not to have received the request. This
Office has previously found that the interception of requests by spam filters or other
anti-phishing programs that prevent requests from reaching the recipient is
tantamount to the agency not receiving the request. See, e.g., 23-ORD-182; 23-ORD-
153; 23-ORD-064. Accordingly, the Office cannot find that the City violated the Act
when it did not receive the request.2
1
In support of its claim that its anti-phishing program blocked the Appellant’s request, the City
provides a photograph of its software showing that the email the Appellant sent on November 8, 2023,
was blocked. The Appellant submitted another request on December 4, 2023, which was approved by
the software and received by the City.
2
The Appellant mailed a copy of his appeal to both the City and the Office, but the Office did not
receive the appeal until December 11, 2023. Before the Office processed the appeal, the City responded
to his request and provided the Appellant with responsive documents. The Appellant also claims on
appeal that the City has failed to post in a prominent location on its website its policies and procedures,A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
#577
Distribution:
Jerry W. Shrecker
Mark Pfeifer
as well as the contact information for its official records custodian. See KRS 61.876(2). However, that
issue is not properly before the Office. In 22-ORD-165, the Office held that a person must first submit
a complaint to the public agency about its alleged failure to post on its website the materials required
under KRS 61.876(2). That is because, under KRS 61.880(2)(a) and KRS 61.880(4), the Office only has
jurisdiction to review a person’s request and the agency’s response, or lack thereof, and then determine
whether the agency has complied with the Act. Because the Appellant’s request to the City made no
mention of its alleged failure to comply with KRS 61.876(2), the City had no opportunity to respond to
the allegation before the appeal was initiated. A person does not invoke the Office’s jurisdiction merely
by submitting a complaint that an agency is not complying with certain requirements of the Act.