Kentucky public records and records management laws largely mirror Virginia's laws as described in this article relating to intentional destruction of public official/employee email.
One important distinction: The majority of correspondence in Kentucky falls within the "Routine Correspondence" records series with retention periods varying from a fixed two years to no longer than two years.
Not surprising. The University of Louisville's (and Kentucky Department for Libraries and Archives') loss of archivist, Chad Owen, was Virginia's gain. Now records management coordinator of the Library of Virginia, Owen is extensively quoted in the article:
"Ex-Windsor VA Police Officer Joe Gutierrez is alleged to have erased all text messages and emails from his town-issued cell phone prior to returning it to Windsor officials.
"Gutierrez was fired April 11 after video footage showing him holding a Black and Latinx Army officer at gunpoint during a traffic stop last December and pepper-spraying him went viral online.
"The Smithfield Times had requested under the Freedom of Information Act on April 15 to be provided with copies of all correspondence, to include emails and text messages, sent by Gutierrez from July in 2020 to date.
"Following a series of delays, Windsor Town Manager William Saunders emailed those records to the paper May 12, adding 'FYI â Officer Gutierrez blanked out his phone before returning it, so those texts were lost.'
"Per state law, public records must be retained for a defined period of time based on what particular function of government they document.
"A set of records that document a particular governmental function is what Library of Virginia officials refer to as a record series. Text messages and emails don't fall into a particular record series since they're simply delivery methods that can be used to transmit any number of records, including video, audio, still photos and text.
"'Think of the text message or email as the envelope, rather than its content,' said Chad Owen, records management coordinator for the Library of Virginia.
"Correspondence has multiple retention periods depending on the role of the person sending or receiving it and the content of the correspondence.
"A significant portion of emails and the vast majority of text messages from local government employees would fall under the GS-19 series 010039, which has a retention period of zero years after being deemed no longer administratively necessary, Owen said. This occurs once a public official decides the record is no longer needed.
"'As such, there is considerable leeway for public officials to delete or destroy text messages and emails under their control,' he said.
But there's one important exception. Under the Virginia Public Records Act, records should not be destroyed if there is pending legal action, an audit, investigation or FOIA request.
Nazario filed his lawsuit against the two officers April 2, each of whom was issued summons April 6. On April 11, the same day Gutierrez was informed of his termination, Gov. Ralph Northam directed the Virginia State Police to conduct an independent investigation of the traffic stop.
"'If there was pending action then said deletion would have been done contrary to the VPRA,' Owen said. 'I think that would ultimately be a matter of mens rea to be argued before a court.'
"Mens rea is a legal term referring to the intention or knowledge of wrongdoing."
