Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health Services violated the Open Records Act in its disposition of the open records requests of Ned L. Bellau, through his counsel, E. David Marshall, dated August 8, 2002, and August 14, 2002, for certain e-mail records from the Cabinet. For the reasons that follow, we find that the actions of the Cabinet relative to the requests were in compliance with the Act.
By letter dated August 8th, Mr. Bellau submitted a request to the Department for Medicaid Services, Cabinet for Health Services, requesting the following records:
1. E Mails from Ned Bellau to Brooke Stiles for dates 1/16/02 thru 8/07/02
2. E Mails from Brooke Stiles to Ned Bellau for dates 1/16/02 thru 8/07/02
3. E Mails from Russ Fenley to Brooke Stiles for dates 6/01/02 thru 8/07/02
4. E Mails from Brooke Stiles to Russ Fenley for dates 6/01/02 thru 8/07/02
5. E Mails from Brooke Stiles to Maggie Garner for dates 5/01/02 thru 8/07/02
6. E Mails from Maggie Garner to Brooke Stiles for dates 5/01/02 to 8/07/02
7. All e mails from Brooke St[i]les to anyone for dates 7/15 to 8/07/02
By letter dated August 12, 2002, John H. Walker, Assistant General Counsel, on behalf of the Cabinet, responded to Mr. Bellau's request. In his response, Mr. Walker advised:
The Department for Medicaid Services does not maintain a catalog or listing of electronic mail sent by its employees. To assemble such a list of e mails among the various people you identify would require a significant investment in personnel and time. Replication of any e mails within the statewide computer system would require the employment of an expert in computer technology to manage the search of the entire state system for intra-office communications. The time and expense of such a venture is significant. After locating information, then that data would have to be subjected to the standard confidentiality review. Consequently, your request must be denied pursuant to KRS 61.872(6) in that to fill your request would constitute an unreasonable burden upon the state agency.
By letter dated August 14, 2002, Mr. Bellau's counsel submitted an amended request. This request stated, in relevant part:
? This amended request simply asks for copies of selected emails in the current mailboxes of Ned Bellau, Brooke Stiles and Russ Fendley. We are requesting that these emails be provided in electronic format or hard copy, whichever proves to be easier for the Department for Medicaid Services to provide. We are confident that this request will not require a significant investment in personnel and time.
The specific emails requested are as follows:
Emails from Ned Bellau to Brooke Stiles
Emails from Brooke Stiles to Ned Bellau
Emails from Brooke Stiles to Russ Fendley
Emails from Russ Fendley to Brooke Stiles.
We are asked to determine whether the actions of the Cabinet in response to Mr. Bellau's requests violated the Open Records Act. For the reasons that follow, we conclude that the agency's actions were in substantial compliance with the Act. Facts relevant to the disposition of this appeal are set out below.
The Cabinet denied the initial August 8th request pursuant to KRS 61.872(6), arguing that to fulfill the request would constitute an unreasonable burden upon the state agency. Rather than pressing this issue, Mr. Bellau amended his request, and on August 12th, requested copies of e-mails in the current mailboxes of Ned Bellau, Brooke Stiles, and Russ Fendley.
On August 29, the Cabinet responded by advising him that, with the help of the Governor's Office of Technology, it had obtained copies of all Mr. Bellau's messages on the day he left employment and would provide him with a CD containing the e-mails. The Cabinet further advised him that it would not provide him with e-mails from the current mailboxes of Ms. Stiles and Mr. Fendley, as those e-mails pertain to their work as DMS employees and were irrelevant to Mr. Bellau and were exempt under KRS 61.878(1)(k). In it September 16th response to this office, the Cabinet expanded it August 29th response by asserting that the information in those e-mails was exempt from disclosure under authority of KRS 61.878(1)(k) and 42 CFR 431.300 et seq. Although the first CD provided by the Cabinet was blank, after subsequent efforts, Mr. Bellau was able to open the file in another CD that contained eight e-mails from his mailbox.
In his responses, Mr. Bellau asserts that he did not delete or attempt to delete e-mails from his mailbox on his last day and does not understand how so few were preserved by DMS. He states he assumed that the procedures used by DMS to copy files before deleting an e-mail account are incorrect and the procedures must contain "some sort of date selection criteria, which excluded the other files from being written to the DMS, backup copy" pertaining to his open records request to DMS dated August 14, 2002.
Mr. Bellau argues that he should be allowed to receive copies of any emails that were sent to him by Ms. Stiles that may still reside in her personal mailbox, which may be contingent upon the personal cleanup practices of Ms. Stiles. He further argues that the Cabinet should have taken reasonable measures to ensure that the requested e-mails were preserved after receipt of his initial request on August 8, 2002, just three days after he left the Cabinet.
In its response to the amended request, the Cabinet explained it was standard agency practice to "clean or sanitize" the computer of a person that leaves employment of the Cabinet and this had been done to Mr. Bellau's computer. Addressing the computers of the other individuals identified in the amended request, the Cabinet explained that once e-mails are deleted from the system, they are gone after ten (10) business days. The Cabinet indicated that it would attempt to locate any of the requested e-mails remaining on the other identified computers.
As a result of this search, the Cabinet advised Mr. Bellau in its August 29th response that it was providing him with a CD containing a copy of all Ned Bellau's e-mail messages on his computer on the day he left employment. It further advised that it was not providing copies of current e-mails from the computers of Ms. Stiles and Mr. Fendley, as those messages were not relevant to Mr. Bellau and pertained to their work as DMS employees and, as such, were Medicaid records that are confidential and exempt from disclosure under 42 CFR 431.300 et seq. , in tandem with KRS 61.878(1)(k).
Mr. Bellau claims that the e-mail records should exist. The Cabinet said they do not. The Cabinet speculates that Mr. Bellau must have deleted the e-mails from his computer before he left. Mr. Bellau claims he did not. Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
It is well established that a public agency cannot afford a requester access to a record that does not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17; 97-ORD-103. The same would apply to e-mails, regardless of whether they are electronically stored or printed out in hard copy. Mr. Bellau suggests hard copies of these e-mails may exist, but the Cabinet affirmatively asserts they do not exist. As noted, it is not within our statutory charter to investigate in order to locate documents that the requesting party maintains exist, but which the agency states do not exist, or to otherwise resolve a dispute arising from such a disparity.
We address next the Cabinet's denial of disclosure of the e-mails on the computers of Ms. Stiles and Mr. Fendley on the basis the e-mails pertained to their work as DMS employees and were Medicaid records that are confidential and exempt from disclosure under 42 CFR 431.300 et seq. , in tandem with KRS 61.878(1)(k).
KRS 61.878(1)(k) authorizes the nondisclosure of:
All public records or information the disclosure of which is prohibited by federal law or regulation.
42 CFR 431.300 provides:
(a) Section 1902(a)(7) of the Act requires that a State plan must provide safeguards that restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the plan. This subpart specifies State plan requirements, the types of information to be safeguarded, the conditions for release of safeguarded information, and restrictions on the distribution of other information.
(b) Section 1137 of the Act, which requires agencies to exchange information in order to verify the income and eligibility of applicants and recipients (see § 435.940ff.), requires State agencies to have adequate safeguards to assure that--
(1) Information exchanged by the State agencies is made available only to the extent necessary to assist in the valid administrative needs of the program receiving the information, and information received under section 6103(l) of the Internal Revenue Code of 1954 is exchanged only with agencies authorized to receive that information under that section of the Code; and
(2) The information is adequately stored and processed so that it is protected against unauthorized disclosure for other purposes.
(Emphasis added.)
The Cabinet denied access to these e-mails because they contained information pertaining to the administration of the Medicaid program and this information is protected from disclosure by federal law and regulation to purposes directly connected with administration of the Medicaid program. Under these facts, the Cabinet properly denied access to all e-mails that contained information concerning applicants or recipients of the Medicaid Program under authority of 42 CFR 431.300 et seq., in tandem with KRS 61.878(1)(k). However, unless otherwise exempt under another exception to disclosure under KRS 61.878(1), any e-mails that would reflect how the Medicaid program is being administered would be open to inspection.
Finally, we address the issue of the nonexistence of the requested e-mails. Currently, e-mails are not on a separately scheduled retention schedule. In 00-ORD-132, this office recognized the status of e-mail as a public record and addressed the duties of public agencies relative to the retention and disclosure of e-mails. In that decision, we stated:
. . . . 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 [of Library and Archives] 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. Bellau's amended request, the Cabinet indicated that it had searched the current mailboxes on the computers of Ms. Stiles and Mr. Fendley for the requested e-mails and messages. As a result of its searches, the Cabinet advised that e-mails from the current mailboxes of the identified computers were exempt from disclosure under 42 CFR 431.300 et seq. and KRS 61.878(1)(k) and that no other e-mails were located in those mailboxes. As noted above, 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. The Cabinet indicated it followed its standard operating procedure of cleaning and sanitizing an employee's computer after he leaves employment and this was done to Mr. Bellau's. The Cabinet also advised that once e-mails are deleted from a computer, they are maintained for a period of ten days by the Governor's Office of Technology, after that they are gone. This is confirmed in an October 18, 2002 letter to the Governor's Office, prepared by the Governor's Office for Technology, the agency responsible for managing the Cabinet's e-mail system, addressing e-mail storage. A copy of that letter is attached hereto. The Cabinet indicated it attempted to retrieve the requested e-mails, but none still existed. Accordingly, under these facts, we conclude that the response of the Cabinet to that effect was proper and did not constitute a violation of the Open Records Act.
As we understand it, efforts are underway to establish standards for agency disposition of electronic records when an employee leaves state government. These standards will provide guidance to agencies. Current procedures differ, but nothing in the record suggests that the Cabinet did not follow its standard operating procedures or that there is anything improper about these procedures.
The record does suggest the need for agencies that receive open records requests for electronic records, such as e-mails, to insure that those records are retained until the matter is resolved. KRS 61.991(2)(a). We urge the Cabinet to bear these observations in mind in responding to future open records requests involving electronically stored public records.
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.
Ned L. Bellau1115 Meadow Lynne DriveFrankfort, KY 40601
John H. WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40601-0001