Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department for Local Government complied with the provisions of the Open Records Act in responding to Robert M. Duncan's requests for records reflecting communications concerning the Martin County Library. For the reasons that follow, we affirm DLG's disposition of Mr. Duncan's requests, and find that its actions were largely consistent with the Act.
In a series of requests submitted to DLG in May, 2000, Mr. Duncan requested copies of an increasingly broad range of records relating to the library. A summary of these requests, along with DLG's responses, follows:
5/2 Mr. Duncan requests copies of "correspondence to and from Barbara Greer, Kentucky Department for Libraries and Archives, Regional Librarian, from January 1, 1999, to present," and "correspondence concerning library tax rates issued by [Dan Yeast] during 1999."
In a response dated May 5, DLG General Counsel Timothy A. Sturgill furnished Mr. Duncan with "copies of email correspondence between Mr. Yeast and Ms. Greer dated March 24, and 27, 2000, and April 20, and 21, 2000," explaining that "these are the only records that the Department has been able to identify as responsive to [his] request."
5/8 Mr. Duncan forwards to Mr. Sturgill a copy of a letter he "received from the Department for Libraries and Archives indicating other correspondence from Mr. Yeast and Barbara Greer," and requests "all correspondence, records, and e-mails related to this letter." In addition, he advises Mr. Sturgill that his original request "was also intended to cover correspondence referred to in Barbara Greer's e-mail to Dan Yeast, Tom Armstrong, and Gene Kiser," and that if Mr. Kiser responded to Mr. Yeast's request for a response, he wishes to obtain a copy of that response.
On May 11, Richard J. Ornstein, an attorney employed by DLG, responded to Mr. Duncan's request by furnishing him with a copy of "an e-mail from Mr. Kiser dated April 21, 2000," and advising him the "the Department is not in possession of any additional correspondence related to [his] request."
2/15 Indicating that he has "reason to believe that Mr. Yeast communicated to Ms. Greer by letter, fax, e-mail, and phone on . . . April 5, 1999, [at] 8:36 a.m. and March 16, 1999, at 2:35 p.m.," Mr. Duncan resubmits his request for "any and all correspondence to and from Mr. Dan Yeast from January 1, 1999, until the present date from Barbara Greer." He also requests:
Based on Mr. Ornstein's statement that "the Department is not in possession of any additional correspondence related to [his] request," Mr. Duncan expresses concern that he has not been "given all the information held by department employees." In support, he attaches a copy of an "April 5, 1999, message to Ms. Greer . . . ."
In a response dated May 22, 2000, Mr. Ornstein furnished Mr. Duncan with a copy of a May 11, 2000, e-mail that was transmitted after DLG issued its most recent response to his requests. He reaffirmed his earlier assertion that DLG "has no record of other correspondence between an employee of this Department and to, from, or about Ms. Greer." Continuing, Mr. Ornstein observed:
Mr. Ornstein attempted to reassure Mr. Duncan that DLG staff "is aware of the necessity of honestly answering each open records request," noting that if an employee "states that he or she is not in possession of a document, . . . this person either does not have the document, or is unaware that this document exists."
5/30 Mr. Duncan again questions DLG's inability to produce e-mails generated by Mr. Yeast on April 5, and March 16, 1999, asserting that responsive e-mails must exist "because [he has] at least partial copies of documents from these dates." He explains that it is not his intention to unduly burden DLG, and that he is only interested in "understanding what advice was given to Barbara Greer and others about the Martin County Public Library. Mr. Duncan again requests copies of:
* Correspondence, including e-mails, from Dan Yeast to Barbara Greer on April 4, 1999 and March 16, 1999 and all correspondence from Dan Yeast to Barbara Greer from July 1, 1999 to present.
* Correspondence to or from Bob Arnold concerning the Martin County Library from July 1, 1999 to present.
* Correspondence to Terrell Ross concerning the Martin County Library from July 1, 1999 to present.
* Correspondence from Dan Yeast, Gene Kiser, or Tom Armstrong concerning library or building projects in Martin County from July 1, 1999 to present.
On May 31, Mr. Ornstein responded to this request advising Mr. Duncan as follows:
With the exception of the records that the Department has previously provided to you on May 5, 2000, May 11, 2000 and May 22, 2000, the Department is not in possession of any record that is responsive to your requests under letters dated May 2, 2000; May 8, 2000; May 15, 2000; or May 30, 2000. While departmental personnel may have had additional email communications with Ms. Greer during the time period you have specified, the Department has no record of such correspondences. The Department does not retain copies of all emails sent or received by staff. Once the issues presented in an email are addressed, the employee usually deletes the email and does not keep a record of that correspondence.
Specifically with respect to your latest letter, the Department does not have any records that are responsive to your request for: 1) Correspondence to or from Bob Arnold concerning the Martin County Public Library from July 1, 1999 to present; 2) Correspondence to Terrell Ross concerning the Martin County Library from July 1, 1999 to present; or 3) Correspondence from Dan Yeast, Gene Kiser, or Tom Armstrong concerning library or building projects in Martin County from July 1, 1999 to present.
Dissatisfied with DLG's responses, Mr. Duncan initiated this appeal asserting that the agency's e-mail policy precludes public access to "valuable documents." Noting that at the federal level, e-mails are preserved on computer hard drives "for future documentation," he expressed the belief that "copies of e-mails are preserved within the state system."
In a supplemental response directed to this office following receipt of this office's notification of appeal, Mr. Ornstein elaborated on DLG's position. He explained:
The Department is not in possession of any correspondences related to Mr. Duncan's requests other than those already submitted to Mr. Duncan or those that were submitted to the Department by Mr. Duncan. As regards e-mail correspondence, I have conferred with the various Departmental staff members mentioned in the various open records requests and have been assured that no staff member has any record of additional e-mails regarding the various topics in the requests. The Department's Information Technology staff have checked the Departmental Server and have been unable to locate any of the various e-mail correspondences that the requests reference. Further, the Department has contacted the Governor's Office of Technology (GOT) and has been informed that e-mail correspondence is kept on the history log no longer than for a two-week period from the date that the e-mail was sent. After that period has expired, GOT is unable to retrieve those e-mails. Therefore, the Department has no way to recover the emails requested by Mr. Duncan, if there were any additional e-mail correspondence.
Having confirmed through the Governor's Office for Technology that once deleted by the user, GOT "maintains backups [for electronic messaging] for a period to not exceed two weeks," we find no error in DLG's partial denial of Mr. Duncan's requests for e-mail communications among members of its staff and various named individuals concerning the Martin County Library and related subjects. Further, we affirm DLG's invocation of KRS 61.878(1)(i) as the basis for denying Mr. Duncan access to a note of a May 15, 2000, telephone conversation between Mr. Yeast and Ms. Greer. Finally, we hold that DLG was not obliged to honor Mr. Duncan's broadly worded requests for internal communications containing the words "library, library bonding, Martin County, Barbara Greer, Ross Sinclair, Sara Callahan, or Judge Lon Lafferty" inasmuch as such requests impose an unreasonable burden on the agency in producing public records within the contemplation of KRS 61.872(6).
Partial denial of requests for e-mails on the basis of their nonexistence .
On at least three occasions, the Attorney General has indirectly recognized that electronic mail generated by public agency employees is a public record as defined in KRS 61.870(2), and is therefore subject to the Open Records Act. See, 99-ORD-22 (request for electronic mail communications generated by city officials, and concerning speed bumps, properly denied on the basis of their nonexistence); 99-ORD-206 (e-mail transmissions between state agency employees in which opinions were expressed were properly withheld on the basis of KRS 61.878(1)(j) because they were never incorporated into agency action) ; 00-ORD-16 (although state agency properly denied request for nonexistent records, its refusal to furnish requester with copies of e-mails exchanged by requester and agency because they were already in requester's custody was improper). Although we did not expressly so state, these open records decisions were clearly premised on the recognition that e-mail may be characterized as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). This position finds support in the Governor's Office for Technology's policy on Electronic Mail as a Public Record , (copy attached), recognizing that "electronic mail, created or maintained by public agencies, meets the statutory definition of a public record in Kentucky," and referenced in GOT's policy on Internet and Electronic Mail Acceptable Use (copy attached).
Like any public record governed by the Open Records Act, e-mail may be excluded from public inspection under one or more of the exceptions codified at KRS 61.878(1)(a) through (l). As the Kentucky Supreme Court has observed:
With respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). With specific reference to records generated by public agency employees in the discharge of their day-to-day administrative functions, the Attorney General has opined:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(g) [now (i)]. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection.
OAG 78-626, p. 2. Clearly, this line of reasoning extends to public records generated via a communications medium neither envisioned nor available in 1978, namely, electronic mail.
Contrary to Mr. Duncan's belief, this practice does not contravene state records retention policy developed by the Kentucky Department for Libraries and Archives. Email has not been separately scheduled, but is instead scheduled according to its nature and content. If the email transmissions "documents the major activities, functions and programs of an agency and the important events in its history," it is deemed official correspondence and treated as a permanent record. See, Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0001. In such cases, the Department recommends that it be printed out in a hard copy format for permanent retention, and transferred to the State Archive when it ceases to have administrative value. Correspondence of the administrative head of an agency reflecting final agency action falls within the parameters of this records series.
Conversely, general correspondence is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency . . . which are better documented by other records maintained by the agency." Records Retention Schedule at p. 1 and Series No. M0002. It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626, p. 2. It has an indefinite retention period, but may be retained "no longer than two years." Id. Discretion rests with the agency and user to determine whether general correspondence need be retained. No requirement exists for the permanent archiving of these records which would include preliminary communications in which opinions are expressed and policies formulated, but which are not incorporated into final agency action.
Accordingly, if an employee of the Department for Local Government elects to delete general correspondence having no permanent value, his actions do not contravene state records retention policy. To the extent that that correspondence, once deleted by the user, can only be retrieved within a two week period per the GOT service level agreement, and that some of the email requested by Mr. Duncan did not fall within this two week window, we find no error in DLG's partial denial of his requests for email dating back to January 1, 1999. As we have so often observed, a public agency cannot produce for public inspection records which no longer exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. Inasmuch as DLG's records management policies appear to comport with the policies established by the Department for Libraries and Archives, and the principles articulated by the Governor's Office for Technology, we have no reason to impugn its good faith in its unsuccessful effort to locate and retrieve the no longer extant email.
Our position is not altered by the fact that DLG exercised its discretion in favor of disclosing some email records which arguably fell within the parameters of one or more of the exceptions to public inspection. As we noted in an early opinion:
The Open Records Law does not provide any mandate against the opening for inspection of any public records, even records which may be exempt from the requirements of being open for inspection.
OAG 79-326, p. 3 (citing OAG 79-275 for the proposition that "the custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 . . ."). By exercising its discretion in favor of disclosure of records which were at least arguably exempt under the Open Records Act, DLG promoted the goal of agency accountability and facilitated public oversight of its operations. It did not waive its right to withhold particular email records under a properly invoked exception to public inspection, such as KRS 61.878(1)(i) or (j), or because they no longer exist.
Denial of request for note of May 15, 2000, telephone conversation between Dan Yeast and Barbara Greer based on KRS 61.878(1)(i)
In response to Mr. Duncan's February 15, 2000, request for records reflecting letter, fax, email, or telephone communications between Mr. Yeast and Ms. Greer in March, 1999, Mr. Ornstein indicated that DLG would withhold a "note" of a March 15 phone conversation between these parties "regarding unmined mineral taxes and their impact on library districts on the basis of KRS 61.878(1)(i)." That exception excludes from the mandatory disclosure provision of the Open Records Act:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
As we have observed, "not every paper in the office of a public agency is a public record subject to public inspection . . . . Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference." OAG 78-626, p.2. In a more recent decision, this office dissected the language of KRS 61.878(1)(i):
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary , 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . . ." [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. Resolution of this portion of Mr. Duncan's appeal turns on whether the record withheld qualifies for exclusion as a preliminary note.
Having reviewed a copy of the note, submitted to this office upon request per KRS 61.880 (2)(c), we find that DLG properly characterized it as a preliminary note. It represents a brief record written down as an aid to Mr. Yeast's memory, and as above, is in the nature of a tool used in hammering out official action rather than the official action itself. See, for example, OAG 79-333; OAG 88-52; 93-ORD-67; 99-ORD-206; compare 97-ORD-112. We therefore affirm DLG's denial of Mr. Duncan's request for this record.
Denial of request for internal communications containing the words "library, library bonding, Martin County, Barbara Greer, Ross Sinclair, Sara Callahan, or Judge Lon Lafferty" based on KRS 61.872(6)
Responding to Mr. Duncan's broadly worded February 15 request for these records, Mr. Ornstein explained that the Department could not estimate the number of communications potentially implicated given the fact that "the words 'library' and 'Martin County' are quite common and could have been used any number of times since January 1, 1999." It was his position that honoring such a request would impose an unreasonable burden on DLG, and relied on KRS 61.872(6) in denying same. We believe that DLG's position finds support in prior decisions of this office. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Attorney General has observed:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
92-ORD-1261, p. 3. The records to which Mr. Duncan requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. Given the lack of specificity of this request, Mr. Ornstein could not estimate the number of records it encompassed or the amount of time DLG employees would expend in locating, retrieving, and producing the records.
Mr. Duncan asked that DLG provide him with copies of records relating to, or containing, a series of words or names. In order to comply with such a request, DLG would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it in the period identified in his request, to determine if these words appear in or on the record. As DLG correctly observes, this could include a myriad of documents. Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, public employees "are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4. As framed, Mr. Duncan's request imposes an unreasonable burden on DLG.
At page 6 of 99-ORD-14, this office observed:
It is our view that a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
On this basis, we affirm DLG's denial of this portion of Mr. Duncan's request, but encourage him to work with DLG toward an amicable resolution of this dispute - Mr. Duncan by framing his request more narrowly, and DLG by continuing to work with him in a spirit of cooperation.
We extend this holding to Mr. Ornstein's denial of the almost equally open-ended request for all letters, emails, and faxes, "to and from Ross Sinclair and Tom Crawford" to several named individuals for a period exceeding one year, but note that this request comes closer to satisfying the requirements that requested records be identified with reasonable particularity. If Mr. Duncan can identify with specificity the topics of communication between these parties, it will then be incumbent on DLG to conduct a search using methods which can reasonably be expected to produce the requested records, namely by questioning each of the named individuals to ascertain if communications of the character described in the request exist. If such communications do exist, and do not qualify for exclusion under one or more of the exceptions codified at KRS 61.878(1)(a) through (l), it will then be incumbent on DLG to release them to Mr. Duncan. As framed, Mr. Duncan's request has not yet triggered these duties.
Conclusion
In sum, we find that the Department for Local Government acted in a manner consistent with the requirements of the Open Records Act in partially denying Mr. Duncan's requests. DLG produced for his inspection existing email that was responsive to his request, and offered a cogent explanation for its inability to produce other email. We find no error in its denial of his request for preliminary notes, and its refusal to honor a request which, by any reasonable measure, was overly burdensome. Nevertheless, we urge DLG to bear this office's observations, as well as the observations of the Kentucky Court of Appeals in Edmondson v. Alig, Ky. App., 926 S.W.2d 856, (1986), in mind in responding to future requests submitted by Mr. Duncan and others.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.