Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet violated the Open Records Act by failing to produce for WHAS 11 reporter Mark Hebert's inspection, in response to his October 26, 2005, open records request, an August 18, 2004, email sent to then-Transportation Cabinet Deputy Secretary Dick Murgatroyd by then-Personnel Board member Bill McCune. By letter dated October 31, 2005, the Cabinet notified Mr. Hebert that "a search of Mr. Murgatroyd's state issued computer was conducted . . . [and n]o email meeting the criteria of [his] request was located." On November 9, 2005, Mr. Hebert discovered a copy of the requested McCune-Murgatroyd email "as an attachment to a search warrant sought by the Attorney General's Office." Shortly thereafter, he initiated this appeal, questioning "why the Transportation Cabinet couldn't find an email for WHAS 11 News that had already been produced for the A.G."
The issue before us, therefore, is whether the Cabinet's efforts to produce the requested email were adequate and whether additional recovery efforts may have been warranted. For the reasons that follow, we find that the Cabinet did not conduct an adequate search for the requested email and was obligated to conduct a more expansive search for the requested email than the search described in its December 5, 2005, response to this office's KRS 61.880(2)(c) inquiry. 1 Because the disputed email may properly be characterized as general correspondence, and the retention period for general correspondence is "no longer than two years," 2 the record on appeal does not support the inference that the disputed email was prematurely, or otherwise improperly, destroyed. In the absence of proof that the requested email was prematurely or improperly deleted, we find that the Cabinet was not obligated to conduct a search utilizing specialized data recovery processes over and above those search methods regularly employed. 3
In supplemental correspondence directed to this office following commencement of Mr. Hebert's appeal, the Cabinet elaborated on its position. On behalf of the Cabinet, Assistant General Counsel J. Todd Shipp explained:
First, the Cabinet did its very best to find the e-mails requested. Second, the Cabinet has not produced this document for the Office of Attorney General, either by search warrant or subpoena. All documents submitted by this Cabinet have either a handwritten or Bate stamp number on the document itself. This e-mail document has none. There is no doubt this document came from some other source besides this Cabinet. It could have come from the computer of Brian Croll, Vincent Fields, Daniel Groves 4 or the Governor's Office of Technology [sic]. There may be other sources besides these mentioned. Mr. Murgatoryd could have easily deleted these e-mails from his computer. The only source for this then would have been through the Governor's Office of Technology [sic].
On this basis, the Cabinet asserted that it "did not negligently or intentionally fail to produce the[] email []," insisting that it "made a diligent good faith systematic search for the document[]."
Asked to describe the "systematic search" it conducted in a November 22, 2005, request for additional documentation propounded by this office under authority of KRS 61.880(2)(c), the Cabinet responded:
OR05-1159 5 - Dick Murgatroyd's personal folders (.pst) was opened. The mail was then filtered by going to "Options" and the "Advanced Find". The filters for the first advanced search was "From: Dick Murgatroyd" "To: bill McCune including all subfolders. No filter of dates was entered to make sure that any e-mails between these two individuals were found. The second search used filters "From : bill McCune" "To: Dick Murgatroyd". Both searches had no results.
OR05-1123 6 - The personal folders (.pst) file from Dick Murgaroyd was loaded on to a PC. Advanced searches were made on each folder and subfolder by going to "Options" and the "Advanced Find". The first search was for "McCune" in the "to" field and then in the "From" field. If that name had been found, then the dates would have been reviewed to determine if the e-mail was within the requested range. Both searches had no results.
Among the "policies, guidelines, and/or procedures dealing with the use, management and/or destruction of email by Cabinet employees," produced by the Cabinet in response to this office's request was Enterprise Standards: 4000 Information/Data Domain -- Category: 4060 Recordkeeping -- Electronic Mail, recognizing at pages 1 and 2 that:
Being public record . . ., electronic mail must be managed to provide appropriate, reliable, and cost-effective evidence of the business activities it supports, relates to, or documents. Its integrity, completeness, retrievability, public accessibility, and retention all should respond to agency or Enterprise business requirements.
[A]gencies must instruct employees and take steps to ensure that non-business related email messages are regularly deleted from email stores (inboxes and personal folders) . Transitory messages, which are defined as messages that are informational and reference purposes only and do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt, must also be routinely disposed of.
Retention periods for email messages vary according to the functions they are associated with. It is the responsibility of the agency to codify retention practices through development of records schedules in cooperation with the Kentucky Department of Libraries and Archives. Retention requirements cannot be met through routine agency backups, and agency staff must be made fully aware of this and the appropriate schedules that must be created and adhered to.
Under the subheading "Technical and Implementation Considerations," the referenced Standard further provides:
In the Exchange/Outlook shared messaging services environmental administered by the Governor's Office for Technology on behalf of state agencies (described at http://got.stae.ky.us/CSOneService.asp?SERVICE=8), users' email accounts typically include two "stores" of information, (1) mailboxes maintained on GOT servers (Outlook Today folders) , and (2) personal folders stored on agency network servers or users' workstations (in .pst folders) . Additionally, a third category in the form of "archived" folders may be present.
The normal size of GOT-maintained mailboxes is limited for reasons of cost to twenty-five megabytes. Backup of mailboxes occurs nightly, with backup tapes being retained for ten days. At any time, if users delete items from their deleted items folders, those items are no longer retrievable unless they were previously captured on backup tapes.
For personal folders, rules relating to the size, number, location of folders (workstation or network server) , and backup frequency are established by individual agencies.
It is from this technological framework that our analysis proceeds.
In 95-ORD-96, this office was asked to determine whether an agency's search for public records was adequate and established a standard by which to measure the adequacy of the agency's search. At page 7 of that decision, we observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, above at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Applying this standard to the hard copy records at issue in the underlying appeal, we concluded that the agency utilized the search method which could reasonably be expected to produce the records requested." Id. 7 Absent proof of willful concealment or improper destruction of the requested records, we did not require the agency to conduct "an exhaustive exhumation of records."
Resolution of the same issue in an electronic environment poses a greater challenge. Responsive records that cannot be located and are presumed destroyed when they are deleted by the user continue to reside on the user's active system for a period of time, and are recoverable, even after the user "permanently" destroys them by emptying his recycle bin, from the backup tapes supporting the system and created for the purpose of emergency recovery. 8 Specialized processes may be employed to restore responsive records from backup tapes before those tapes are recycled or overwritten. As noted above, that backup tapes maintained by and/or for the Cabinet are recycled every ten days, and once the tapes are overwritten the information they contain is, for all intents and purposes, no longer recoverable. Against this backdrop, we examine the question of whether the Cabinet conducted an adequate search for the electronic record Mr. Hebert requested.
Applying the search standard articulated in 95-ORD-96 to the electronic email at issue in the instant appeal, we find that the Transportation Cabinet did not conduct a search using methods that could reasonably be expected to produce the requested record. The Cabinet indicates that its search was confined to Dick Murgatroyd's personal folders. The Cabinet does not indicate that its search extended beyond these files to other folders. Because Mr. Murgatroyd might have saved the message in, for example, an archive file, a message file, a text file, or an html file, it was incumbent on the Cabinet to expand its search to any such file which could reasonably have been expected to produce the responsive record using broader criteria (words, topics) for that search. Moreover, because email is easily propagated, it was incumbent on the Cabinet to search the mail server to determine if the message was forwarded to Cabinet employees or officials, as well as the "inboxes" of employees or officials who might reasonably have been expected to receive it. Only a search of this scope could conclusively establish the existence or nonexistence of the responsive email on the Cabinet's system. The Cabinet's search, as described, was inadequate.
Nevertheless, the disputed email was more than a year old when Mr. Hebert submitted his request and could properly have been characterized as general correspondence. 9 Contrasting general email correspondence to official email correspondence, in 00-ORD-132 we observed:
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 [for Libraries 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 [adopted as the basis of] final agency action.
If Mr. Murgatroyd did in fact delete the disputed email from his personal folders in the normal course of documents management business, his actions did not contravene state records retention policies and were therefore not improper. In the absence of proof that destruction of the email was improper, a determination that is based on the email's nature and content, we find that the Cabinet's duty to conduct an adequate search for the record responsive to Mr. Hebert's request would have been satisfied had it conducted the broader based search described above, and that no specialized restoration processes were warranted.
We hasten to note that specialized restoration processes might be warranted in those cases where proof of improper records destruction exists. 10 If the requested email were official correspondence, which must be retained permanently, or if Mr. Murgatroyd, or a Cabinet employee, deleted the requested email after Mr. Hebert made his open records request, it would be incumbent on the Cabinet to employ specialized restoration processes in order to recover the requested email as long as the email still resided on the backup tapes maintained by and/or for the Cabinet. Improper destruction of records, in our view, carries with it the duty to take all available measures to recover same.
In sum, we find that although the search for responsive email conducted by the Cabinet did not employ "methods which c[ould have] reasonably be[en] expected to produce the record[] requested," 95-ORD-96, p. 7, and that a broader search was clearly warranted, "nothing [otherwise] appears [in the record on appeal] to raise the issue of good faith," id., the disputed record having apparently been destroyed within a timeframe that was consistent with records retention requirements and not for the purpose of willful concealment. We are therefore unwilling to suggest that the Cabinet was under a duty to employ specialized processes to restore the record, especially in view of the fact that the record was more than a year old and presumably no longer available on a backup tape, or to otherwise assign error to the Cabinet for its inability to produce the record.
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 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed. (Emphasis added.)
2 See, Records Retention Schedule-General Schedule for State Agencies, Series M002.
3 This finding presupposes utilization of adequate search methods.
4 The Cabinet does not identify these individuals or describe their relationship to Mr. Murgatroyd or the Cabinet.
5 Internal open records request logging system utilized by the Transportation Cabinet.
6 See note 3, above.
7 In 95-ORD-96, the applicant requested "[a] copy of all materials in Dr. Brock's file . . .," and the agency responded that "a review of Dr. Brock's files disclosed no records that were responsive to his request." The Attorney General concluded that "[a]ny further effort to locate the record, as described by [the applicant] would have been unreasonable here." Id.
8 "Emergency," in this context, includes computer crashes or viruses.
9 Theresponsive email exchange contained the following messages:
Just received a phone call from Jim Maggard. He is very upset at the prospect that he may not be promoted into the District 10 Highway Administrative Manager's position which will become vacant upon the 3/31/04 retirement of Scotty Fugate. I was personally involved in a meeting with Jim and Governor Fletcher in the Governor's office on Monday, May 24, at which time this position was discussed. It was our understanding when we left the governor's office that this job would go to Jim when Mr. Fugate retired. After the primaries were over Jim and his wife worked hard for the Fletcher for Governor team helping raise money and getting the Fletcher team many votes. Mr. Maggard has a large following in the mountains as he served as state representative for many years. I am a life long democrat and joined the Fletcher team and gave $ 1,000.00 to them because of Jim and his wife. I also worked across the state with family and friends supporting the Fletcher team because of Jim and his wife. I have known Jim for over 30 years and know he worked for nobody but the Fletcher team after the democratic primary was over. He is loyal to the governor and I believe that he is the only choice for the position in question.
Clearly, this email did not "document[] the major activities, functions, and programs" of the Transportation Cabinet. Nor was it "correspondence reflecting final agency action. "
10 The federal courts have struggled with this issue, in the context of civil discovery, in recent years. See,e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D. N.Y. 2003) and authorites cited therein.