In the 25 years I served as an assistant attorney general, I reviewed and consulted on open records appeals on a daily basis. I developed a sensitivity to the most common – and often unnecessary – impediments to public access, some that arose from requester error and some from agency obstructionism. Since leaving the office I have attempted, when asked, to assist both requesters and agencies in resolving their open records disputes short of a formal appeal to the Kentucky Attorney General or the courts.
On April 27, I received a request to assist Muckrock, a Massachusetts’ group described on its website as a “non-profit collaborative news site that gives you the tools to keep our government transparent and accountable,” which was looking for guidance on the “specificity and readily available” requirement for an open records request it had submitted to – and which was denied by – the Kentucky Department of Education (DOE).
After reviewing Muckrock’s request and DOE’s denial, I immediately identified at least one of the problems with the request. Muckrock had made the often-fatal error of requesting “any and all records” that related to a particular topic for a two-year, and in one case, a five-year period.
Muckrock did not want copies of a single record or selected records related to the topic. It wanted copies of all responsive records related to that topic for the stated timeframe. Had Muckrock used the word “all” instead of “any and all” the result might have been different. The net effect is the same, but agencies dislike the phrase “any and all” and point to support for their position in conflicting attorney general’s open records decisions. This semantic distinction without a difference creates a loophole in the law which agencies often exploit in denying requests.
DOE denied Muckrock’s request for copies of all responsive record based on the “specificity and readily available requirements. . .for requests for copies of documents under KRS 61.872(3)(b)” but indicated that it would permit Muckrock to inspect the records on site. KRS 61.872(3)(b) establishes a higher standard of specificity for requesters, like Muckrock, seeking to access records by receipt of copies through the mail. A public agency’s duty to mail copies is triggered when it receives a request for precisely described records that are readily available within the agency. If a requester prefers to inspect the records on site, he or she is only required to “describe” the records.
The Kentucky Supreme Court has approved the description in a request for onsite inspection that was “adequate for a reasonable person to ascertain [its] nature and scope.” The Court has not addressed the degree of precision required for requests seeking records by receipt of mailed copies. There are sound reasons for different description standards in requests for records by onsite inspection versus requests for records by receipt of copies by mail, but those reasons may not be implicated here.
The DOE refused to mail copies of the requested records to Muckrock but agreed to allow Muckrock to come to Kentucky to inspect the records in its office, without any stated restrictions, and thereafter obtain copies of the records.
This begs the question: If the description in the request was “adequate for a reasonable person [at DOE] to ascertain [its] nature and scope” in order to locate and compile all responsive records for onsite inspection by Muckrock, why was the DOE unable or unwilling to mail copies of these same records to the group? We hope that DOE was not obfuscating in the hope that Muckrock would withdraw its request.
The Center for Open Government will follow, and report on, developments in this case as they unfold.
–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She is one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a nearly 25-year career as an assistant attorney general in the Kentucky Attorney General’s Office.