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 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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