Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington City Commission violated the Open Records Act in the disposition of Patrick C. Lance's October 15, 2002, request for "[a]ll emails currently housed on [Commissioner J. T. Spence's] computer, including all saved emails, and sent emails within the last 12 months." Although the Commission made full disclosure of all email messages Commissioner Spence produced in response to Mr. Lance's request, for the reasons that follow we find that the Commission's disposition of Mr. Lance's request did not satisfy the requirements of KRS 61.872(5).
On October 17, 2002, City Solicitor John Jay Fossett notified Mr. Lance that "Commissioner Spence is gathering the materials that would be responsive to this request . . . ." Mr. Fossett indicated that those materials would be forwarded to him on or before October 23, 2002, and that materials would be "available for [Mr. Lance] to review and/or copy after that time . . . ." Dissatisfied with this response, Mr. Lance initiated an open records appeal shortly thereafter objecting to the delay in affording him access. It was his position that because the requested emails are "currently available for viewing on the city's network . . . there is nothing to gather . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Lance's appeal, Mr. Fossett elaborated on the Commission's position. Noting that the requested records were made available to Mr. Lance one day earlier than promised, he explained:
Under KRS 61.872(5), inspection of document may be delayed if an explanation of the cause of the delay is given and the place, time, and earliest date on which the public record will be available for inspection is stated. This was done in the October 17 correspondence sent to Mr. Lance from this office. Commissioner Spence informed this office that because of other commitments for the days after October 15 - he is employed and campaigning for re-election - he would not be able [to] retrieve the requested documents until early the next week.
On Monday, October 21, 2002, Commissioner Spence was able to gather the requested documents, which he provided to this office for review to determine whether any of the documents should not be disclosed under KRS 61.878. After a review was completed by my office on October 22, 2002, Mr. Lance was immediately contacted and informed that the requested documents were available for his review. (Incidentally, no documents were withheld from disclosure.) Mr. Lance inspected the email documents in my office on October 22, 2002, and obtained copies of nine pages from these documents.
On this basis, Mr. Fossett concluded that the Commission "complied with both the intent and letter of the Kentucky Open Records Act, " providing Mr. Lance with the requested records within one week of his request and corresponding with him within three days of his request to apprise him "that there would be a slight delay in production of the documents."
In response to the Commission's supplemental correspondence, Mr. Lance noted that Mr. Fossett's October 17 letter "did not give any reason why Mr. Spence would not comply with the law," and that "the first explanation . . . was noted in the October 24 letter which . . . was generated in a defense to [his] appeal." With reference to the stated reason for delay, Mr. Lance observed:
[T]here is no reason why immediate compliance couldn't have been granted on October 15th, 16th, 17th, 18th, or 21st. This observation is based on the incredibly low volume of emails that Mr. Spence ultimately produced. Mr. Spence produced only a handful of email messages, which is hard to believe for a commissioner who is so actively involved with city affairs. Since there was such a small number of emails provided, it is inconceivable that Mr. Spence needed any additional time beyond the three-day time limit. Furthermore, since these emails are public record, a secretary for the city or other staff member could have printed these off of Mr. Spence's computer, which would have completely eliminated any hardship to Mr. Spence . . . Therefore, my request should not have taken any of Mr. Spence's time, rendering his excuses of work and campaigning unnecessary and moot. Regardless, KRS provisions do not grant exceptions based upon someone's work schedule . . . Regarding the need for Mr. Spence to campaign for reelection, I am also just as certain that there are no exceptions granted for this reason either.
He reiterated that any practical difficulties associated with providing access to these records could have been eliminated by permitting him to review the records on "Mr. Spence's computer or any other computer on the network that is configured to allow viewing of these emails. " Based on "Mr. Spence's insistence on personally handling [Mr. Lance's] Open Records request, along with the unacceptable delay in complying," Mr. Lance requested "further investigation to ensure that there has been no obstruction of justice regarding [his] original request." The Attorney General is not empowered to conduct such an investigation in the role assigned to him by KRS 61.880(2).
We have reviewed the record on appeal and find that the Commission did not fully comply with the Open Records Act. KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In the appeal before us, the Commission promptly notified Mr. Lance in writing that the records identified in his October 15 request would be available after October 23. This response was deficient in that it failed to provide Mr. Lance with "a detailed explanation of the cause . . . for further delay . . . ." KRS 61.872(5). Although Mr. Fossett stated that Commissioner Spence was "gathering the materials," he did not indicate that the records were in active use or in storage, or offer any other explanation for the delay in affording Mr. Lance access beyond three business days of his request.
Moreover, because the duty to provide timely access to nonexempt public records has been deemed to constitute "as much a legal obligation of a public agency as the provision of services to the public," 1 which should not yield to the press of other agency business, we agree with Mr. Lance that the explanation for delay that was belatedly offered did not justify that delay. It is the opinion of this office that campaigning for reelection, or discharging duties associated with private employment, do not provide a sufficient legal basis for temporarily suspending the legal obligations imposed on a public agency by KRS 61.880(1). Invocation of, and reliance upon, KRS 61.872(5) should occur on rare occasions and only when the circumstances are such as to clearly warrant extension of the standard three day deadline for agency response and release of records. See 01-ORD-38 (request for a broad range of widely dispersed agency records for a three year period of time on a variety of topics justified an extension of time for inspection) ; compare 00-ORD-117 (request for records of an identified, limited class that could be readily accessed through an existing database did not justify an extension of time for inspection) . We further find that the duty to gather the records identified in Mr. Lance's request, and to respond to that request, rested with the Commission's official records custodian and not with Commissioner Spence.
It is well-recognized, and apparently undisputed, that electronic mail generated by public agency officials or employees is a public record as defined in KRS 61.870(2), and is therefore subject to the Open Records Act. See 00-ORD-132, p. 7, citing 99-ORD-22, 99-ORD-206, and 00-ORD-16. Thus, at page 7 of 00-ORD-132, this office opined:
Although we did not expressly so state, these open records decisions were clearly premised on the recognition that email 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, . . . 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 . . . .
Like any public record governed by the Open Records Act, email 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).
In our view, it is for the records custodian, and not the email account holder, to locate and retrieve these records and to make the determination as to which are exempt and which must be disclosed. KRS 61.870(5) 2 ; KRS 61.880(1). 3
This position finds support in proposed guidelines soon to be issued by the Kentucky Department for Libraries and Archives "to assist public employees with the management of their email. " 4 With regard to accessibility to email records, the following direction is given:
Because email messages are public records, they are subject to the same open records requirements as any of the agency's other public records. The legal issues governing this access are frequently very complex. Email messages must be managed in such a way that agencies can respond promptly to open records requests.
Email messages that are available for public inspection must remain accessible throughout their entire retention period and should be maintained in a manner which permits efficient and timely retrieval. 5 Developing a standardized system of document naming, filing, indexing and retrieval, will assist an agency in maintaining the accessibility of non-exempt email messages throughout the required retention period.
Appropriate measures should be taken by the agency's records custodian to insure that email messages that are the subject of pending open records requests and/or litigation are not deleted from the email system. When the custodian is made aware of the request or litigation, agencies should generate a separate . . . file that captures a complete copy of the appropriate email account(s) and maintain that copy in a separate protected directory under the control of the designated records custodian for a period of 30 days or as long as the case is being litigated or appealed. Documentation of this procedure (date, time, and number of messages) should also be created and maintained as long as the file is maintained.
Public agencies, including the Commission, are therefore encouraged to implement the proposed guidelines set forth above to insure full accountability.
We do not concur with Mr. Lance in his position that the Covington City Commission was obligated to permit him to review the records on Commissioner Spence's computer. On this issue the Attorney General has concluded that "when there is a mechanism in place for providing public access to public records, without resorting to on-site use of agency computers, the agency discharges its duty under KRS 61.872 by utilizing the alternative mechanism . . . ." 00-ORD-8, p. 3. In that decision, we opined:
[B]oth the courts and this office have wrestled with the practical difficulties associated with on-site inspection of electronically stored records. For example, in 99-ORD-96 the Attorney General affirmed the Department of Education's denial of a request to access the department's computers to search for records of which it had denied the existence. There, we observed:
99-ORD-96, p. 5.
More to the point, in Commonwealth of Kentucky, Department of the Treasury v. Mindy Hines, 98-CI-00134 and 98-CI-0345 (Franklin Circuit Court, January 21, 1999), 6 the Franklin Circuit Court expressed its reluctance to condone unfettered public access to an agency's computers, and records stored therein. The court reasoned:
Id. at 6, 7. On this basis, the Attorney General concluded that providing hard copies of electronically stored records was a reasonable alternative mechanism for affording access and did not abridge the requester's right of inspection. Extending the reasoning of the cited authorities to this appeal, we find that the Commission properly elected to utilize an alternative mechanism for inspection, and that in so doing did not abridge Mr. Lance's right of access.
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.
Footnotes
Footnotes
1 See 00-ORD-117 and 01-ORD-38.
2 KRS 61.870(5) states:
"Official custodian" means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]
3 KRS 61.880(1) states:
If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
4 Guidelines for Managing Email in Kentucky State Government, Section III, Part 5, (Draft, 12-13-2002).
5 For a discussion of proper retention of email, see pages 9 and 10 of 00-ORD-132 (enclosed) and Guidelines (Draft) Section III.
6 Although this circuit court decision is binding only on the parties, it is highly instructive, and is, at a minimum, indicative of the view the courts might adopt in the future.