While writing about the University of Louisville’s failure to respond to an emailed open records request submitted by the Kentucky Center for Investigative Reporting, I discovered a January 2015 article published by KyCIR entitled “Fax Machines, Snail Mail and Transparency in Kentucky.”
Buried in the basement of the Capitol where I labored many years to meet statutory deadlines for issuance of open records decisions, I did not see the article in 2015. I acknowledge that I bristled at the suggestion that “Kentucky’s open records law doesn’t dictate one form of transmission over another.”
The article focused on agencies that continue to “bask in pre-Digital Age means of communicating with the information seeking public.” In what can generously be described as derisive terms, the author suggested that a fax machine, “a fossil” and “technological relic from the 1990s. . .comes in handy” in transmitting open records requests.
In fact, the open records law does dictate forms of transmission. In 1994 the law was amended to permit fax transmission of open records requests in addition to mail and hand delivery. Since 1994, the law has stated that an open records “application shall be hand delivered, mailed, or sent via facsimile to the public agency.”
As email use became increasingly common in the years that followed, the attorney general’s staff struggled with the obsolescence of the statutory language. Nevertheless, we were constrained by that language and the knowledge that before 1994 “mail” meant U.S. Mail and email was not on the table in the legislative discussions surrounding the 1994 amendments.
We first attempted to address this problem in 98-ORD-167, an open records appeal in which the issue was placed squarely before us.
There we concluded that “’the parties (meaning the requester and the public agency) may enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by e-mail.’ Such a course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email.”
“But,” we admonished, “neither party can unilaterally compel the other party to conduct their open records business by email.” In later years we emphasized that public agencies must adopt uniform policies relating to acceptance of emailed open records requests and that if that policy authorizes rejection of such requests, the agency must immediately notify the requester to submit his request by hand delivery, mail, or fax.
Too little, too late? Perhaps.
But Kentucky’s courts have yet to interpret this 1994 amendment to the open records law, and the role of the Attorney General in reviewing an open records dispute is a narrow one.
The language of the statute, as well as its legislative history, impeded our ability to fashion a Post-digital age solution. Moreover, “prudence counsels caution” in an era when today’s digital innovation becomes tomorrow’s “technological relic.”
The term “email,” the Bluegrass Institute’s Center for Open Government noted in its recent proposal for legislative revision of the open records and meetings laws, appears in only one place in either law. That is in the 2008 amendment to the open meetings law authorizing public agencies to email notice of special meetings to agency members and media organizations as long as they file “a written request with the public agency indicating their preference to receive electronic mail notification in lieu of personal delivery, facsimile machine, or mail.”
In our proposal, we strongly urge lawmakers to undertake modernization of the open records and meetings laws aimed at eliminating anachronisms and ambiguities in the law, including but certainly not limited to, references to facsimile machines.
We hasten to note, however, that in the case referenced above the University of Louisville failed to issue a response to KyCIR’s emailed open records request within the three business day statutory timeframe, responding 12 business days later and only after KyCIR filed an open records appeal with the Kentucky Attorney General.
Whatever mode of transmission Kentucky’s lawmakers settle on when they undertake revision of the law, human error, omission, neglect or recalcitrance cannot be legislated away.