Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Bourbon County Schools' response to that portion of an open records request of James M. Lovell for copies of "any and all messages, or e-mails forwarded by Woodrow Carter, Superintendent," to certain named individuals for the period of Thursday, May 9, 2002 through the date of the request, June 6, 2002, "which were forwarded from or would indicate the source e-mail address is wcarter@Bourbon. k12.ky.us, " violated the Open Records Act. For the reasons that follow, we conclude the agency's response did not constitute a violation of the Act.
In a letter dated June 11, 2002, signed by Arnold W. Carter, Superintendent; Paulette Congleton, Office Manager; and Julie Florence, Receptionist, Bourbon County Schools provided the following response to this portion of Mr. Lovell's request, advising him:
1. There are no email documents on file that may have been forwarded to any of the persons you have listed in your request.
As a result of this response, Mr. Lovell initiated an appeal to this office. In his letter of appeal, Mr. Lovell states, in part:
The Superintendent's response to request number 1 for any and all messages or e-mails forwarded by Woodrow Carter to certain persons by stating that "there are no e-mail documents on file that may have been forwarded to any of the persons you have listed in your request." Attached please find a copy of two e-mail messages which were forwarded to me by another person and which would be documents that should have been included in the Superintendent's response to me. Please note when the source e-mail address on these e-mail messages is checked by double clicking on it, it reads " wcarter@bourbon. K12.ky.us ". This is the e-mail address for Superintendent Woodrow Carter.
The creation and forwarding of such e-mail messages by the Superintendent may be a violation of the policies of the Bourbon County Schools concerning the use of the internet. The response of Mr. Carter to my request appears to be made so as to subvert the intent of KRS 61.870 to 61.884 and certainly brings into question the truthfulness and accuracy of any response he makes to any open records request.
After receipt of Notification of the appeal and a copy of Mr. Lovell's letter of appeal, John C. Fogle, III, counsel for the Bourbon County Schools, provided this office with a response to this issue raised in the appeal. In his response, Mr. Fogle advised, in relevant part:
1. After receipt of Mr. Lovell's June 6, 2002, Open Records Request, and prior to the June 11, 2002, response submitted on behalf of the public agency, Superintendent Arnold W. Carter, with the assistance of staff, reviewed the office computer he utilizes for potential messages or e-mails responsive to the request. As pointed out in the June 11, 2002, responsive letter, there were no e-mail documents on file that may have been forwarded to the persons listed in the requesting letter. While Mr. Lovell apparently seeks to create an issue by attaching certain e-mail messages he claims to have obtained from third parties to his June 21, 2002, open records [appeal], such does not alter the fact that no such e-mails or messages were maintained on file as of the time of the initial Open Records Act response. It is well established that a public agency has no obligation to disclose records which do not exist or cannot be located within its files. See, e.g., OAG 91-200.
As additional bases in support of the agency's action, Mr. Fogle asserts that the e-mails or messages do not fall within the definition of "public record" under KRS 61.870(2) and, if they did, they would be exempt under KRS 61.878(1)(i), as correspondence with private individuals not intended to give notice of final agency action. He also argues that the demand for records responsive to request Item No. 1, coupled with the volume and frequency of prior requests, constitutes a repeated request intended to disrupt essential functions of the Bourbon County Public Schools, thus providing a basis for the records custodian to refuse to permit inspection of the public records, under KRS 61.872(6).
In a reply letter to this office in answer to Mr. Fogle's response, Mr. Lovell verified that he had received the e-mails attached to his letter of appeal from a third party and stated that his open records requests had been made, not to disrupt the essential functions of the Bourbon County Schools, but to improve the schools for the benefit of the children.
We are asked to determine whether the Bourbon County Schools' response to the request for a copy of the requested e-mails or messages violated the Open Records Act. For the reasons that follow, we conclude the response did not violate the Act.
In 00-ORD-132, this office analyzed the status of e-mail as a public record, and the duties of public agencies relative to retention and disclosure of same. At pages 7 through 10 of this decision, we stated:
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:
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:
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 [the requester'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.
In its response to Mr. Lovell, the agency indicated that it had searched its records, both its files and the computer that the Superintendent utilized, for the requested e-mails and messages. As a result of its searches, the agency advised Mr. Lovell that no records responsive to his request were found in or maintained on its files. This office has long observed that a public agency cannot produce for public inspection records that it no longer has or which no longer exist. OAG 83-111. Accordingly, we conclude that the response of the Bourbon County Schools advising Mr. Lovell that the requested records could not be located within its files or did not exist was proper and did not constitute a violation of the Open Records Act. The fact that a third party may have a copy of e-mails from the public agency does not alter this conclusion.
Moreover, a records retention question is not raised unless the e-mail message represents official correspondence of the agency, which has been defined as an e-mail transmission that "documents the major activities, functions and programs of an agency and the important events in its history." Only under this circumstance is the e-mail or message 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, and discussion above of 00-ORD-132. The copies of the e-mails provided to this office by Mr. Lovell do not appear to fall within this class of records. However, in the instant appeal, we have insufficient information before us to address this issue.
Finally, it is not the role of the Attorney General in an open records appeal to address the issue of whether the Superintendent's use of the agency's e-mail system constituted a violation of the policies of the Bourbon County Schools concerning the use of the internet. Thus, we do not address that issue.
Because the foregoing is dispositive of the appeal, we need not address other bases set forth by the agency in support of its actions relative to the request.
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 proceeding.
James M. LovellP.O. Box 521509 Pleasant StreetParis, KY 40362-0521
Arnold W. CarterSuperintendentBourbon County School District3343 Lexington RoadParis, KY 40361
John C. Fogle, III121 Bridge StreetFrankfort, KY 40601