Saturday, September 3, 2016

Public agencies cannot subvert Open Records Act by storing information with private contractors

Public agencies cannot hire private contractors to manage their website and then ignore requests for records and claim they aren't in possession of the records.

On July 25, 2016, Attorney General Andy Beshear issued the opinion, In re: Lawrence Trageser/Spencer County Fiscal Court, 16-ORD-141.

The first question the attorney general's office took up was whether the fiscal court had violated the Open Records Act by not searching for requested records sufficiently. The opinion ruled that the Spencer County Fiscal Court violated the law by not searching enough for requested records.

The second question was whether the county also violated the law by failing to maintain access to emails through use of county government addresses maintained by a private contractor. 
The opinion found the county subverted the intent of the Act by failing to maintain access to emails using county government addresses. 

Trageser’s request was submitted Jan. 26, 2016, and sought all records dealing with communications of two magistrates, Jim Williams and Brian Bayers, specifically through email by their county government email addresses. 

The fiscal court replied the search would take time and gave a specific date the request would be fulfilled, explaining someone would have to examine the emails to see if any exemptions applied. On March 22, 2016 the county provided its full response to the request.
Its reply stated that a private entity runs the website, and the fiscal court did not have custody or control over the email addresses. Therefore, Trageser's request could not be fulfilled because the Open Records Act applies to records “in the possession or control of a public agency.” Since the records were held by the private entity, the fiscal court argued the Open Records Act did not apply. 

Beshear's opinion stated that KRS 61.87(2) provides that a public record is “documentation . . . which are prepared, . . . used in the possession of or retained by a public agency.”

The emails, Beshear held, were prepared and used by the fiscal court. He also pointed out that the magistrates themselves have access to their own emails, and that search could have been done to obtain the requested records, per 14-ORD-181, which made the search inadequate and a violation of the Open Records Act. 

It is not the actual place where a record is kept, rather the nature and purposes of the record which makes it a public record, said Beshear citing 14-ORD-192. 

Because the fiscal court is not maintaining access to its own records, it violated the records retention schedules and warrants a referral to the Department for Libraries and Archives. The attorney general's opinion said the county governments cannot take the public records out of the emails by simply hiring an outside contractor to maintain them.

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