Could a Kentucky city reject a public-records request because the written request arrived by fax?

Plain-English summary

Owensboro released records requested by fax but told the requester that a facsimile did not count as a proper written public-records request. The requester appealed that position. The Kentucky Attorney General said in 1992 that the Open Records Act allowed a custodian to require a written application but did not specify a delivery method. A fax served the purpose of identifying the records sought, so the city’s statement was inconsistent with the Act.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Records requesters using a fax

The AG said a fax transmission met the written-application purpose in KRS 61.872(2): it clarified which records were requested. The statute did not require an original mailed or hand-delivered letter.

City records custodians

The AG said the city’s refusal to recognize a faxed request conflicted with the Act’s instruction favoring free and open examination and strict construction of exceptions. The case concerned the city’s legal statement about fax delivery; the requested records had already been released.

Common questions

Did a fax count as a written request under the Act the AG considered?

Yes. The AG said a fax satisfied the purpose of a written application by identifying the records sought.

Did the written-application provision require an original signed letter?

The AG found no delivery-method restriction in the provision. It rejected Owensboro’s view that a facsimile was insufficient.

Did the AG order Owensboro to release records it still held back?

The opinion said the city had already released the requested records. It reviewed the city’s statement that a fax could not be a proper request.

Background and statutory framework

The appeal asked whether a faxed application met KRS 61.872(2), which allowed an official custodian to require a written description of records. The AG said the provision did not prescribe the mode of submission and read it in light of KRS 61.882(4)’s policy favoring open examination. It found the city’s categorical objection to fax transmission inconsistent with the Act.

Citations and references

• KRS 61.872(2): written-application provision analyzed by the AG.
• KRS 61.882(4): open-examination policy quoted in the opinion.
• KRS 61.880(5): circuit-court challenge provision noted in the decision.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_53281388-3846-4410-8399-5251230fb602/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_53281388-3846-4410-8399-5251230fb602

Original opinion text

OAG 92-13
January 30, 1992
_____
Open Records Appeal
File Identification No. 34
Bryan Smeathers_____
Mr. David C. Fowler
Owensboro City Attorney
P. O. Box 847
Owensboro, KY 42302
Dear Mr. Fowler:
Mr. Bryan Smeathers, Executive Director of the Owensboro-Daviess County Citizens for Railroad Overpass, Inc., has appealed to the Attorney General, pursuant to KRS 61.880, your response to his request to inspect certain records in the possession of the City of Owensboro, transmitted to your office by fax on December 23, 1991. Although you released those records in a letter dated December 30, 1991, you noted: It is my opinion that a facsimile of an original letter or document does not constitute a proper written request for inspection of public documents. Mr. Smeathers asks that we review your position on this issue to determine if it is consistent with the Open Records Act. For the reasons set forth below, we conclude that your statements are inconsistent with the Act. OPINION OF THE ATTORNEY GENERAL KRS 61.872(2) provides: Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.

Mr. David C. Fowler
Page 2
OAG 92-13
This provision does not specify the mode or method by which a written request must be made. It is intended to circumvent disputes relative to the identity of the records requested, and not to create additional obstacles to the release of those records. A fax transmission satisfies this purpose. We therefore find that your position is inconsistent with both the spirit and the letter of the Open Records Law enunciated at KRS 61.882(4), which states:
[F]ree and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others. As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Bryan Smeathers. The City of Owensboro may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). Sincerely, CHRIS GORMAN ATTORNEY GENERAL

Amye B. Majors
Assistant Attorney General
ABM/reb
cc:

Mr. Bryan Smeathers