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 Justice and Public Safety Cabinet violated the Open Records Act in denying Stephen Malmer's June 20, 2006, request for "personal, nonwork related emails between Bobbie Malmer and David Moss dated between 11-01-05 thru 6-01-06." 1 Our review of the disputed emails does not support the Cabinet's reliance on KRS 61.878(1)(i) and (j), insofar as the emails cannot be properly characterized as drafts, notes, or correspondence with private individuals. Nor can the emails be properly characterized as subjective expressions of opinion, recommendations, or policy formulations. Further, our review of the disputed emails does not support the Cabinet's invocation of KRS 61.878(1)(a) and its alternative argument that "the search of one's email for messages that are purely personal and do not involve state business constitutes an unwarranted invasion of personal privacy of the employee."
By letter dated June 27, 2006, 2 Justice and Public Safety Cabinet General Counsel Jeff Middendorf denied Mr. Malmer's request, advising him that "personal nonwork related emails between employees of a public agency are preliminary correspondence, contain opinions, and do not form the basis of final agency action. " Shortly thereafter, Mr. Malmer initiated this appeal from "the denials of open records requests from the Justice and Public Safety Cabinet." 3
In supplemental correspondence directed to this office following commencement of Mr. Malmer's appeal, Justice and Public Safety Cabinet Staff Attorney Emily Dennis amplified on the Cabinet's position. She explained that Bobbie Malmer is a current employee of the Cabinet, having been appointed to the position of Administrative Specialist III on December 1, 2004, and that David Moss is a former employee of the Cabinet, having been appointed to the position of Special Assistant on January 16, 2005, and resigned that position on May 22, 2006. On behalf of the Cabinet, Ms. Dennis argued that "unless incorporated into final agency action, " electronic email records exchanged by these employees constitute "preliminary correspondence" and therefore falls within the parameters of KRS 61.878(1)(i), and that "[t]o the extent the electronic mail correspondence is between individuals employed by the same agency, the records constitute internal memoranda, containing opinions and recommendations, which do not form the basis of final agency action" and therefore falls within the parameters of KRS 61.878(1)(j). In closing, she observed:
Neither Mr. Moss nor Ms. Malmer has been subject to disciplinary action as a result of inappropriate use of electronic mail privileges. Based on their respective agency positions there is no reason for any correspondence between these individuals to form the basis of any final agency action by the Justice & Public Safety Cabinet. KRS 61.878(1)(i) and KRS 61.878(1)(j). In addition, the search of one's e-mails for messages that are purely personal and do not involve state business constitutes an unwarranted invasion of personal privacy of the employee. See KRS 61.878(1)(a).
In support, Ms. Dennis referenced Gannett Kentucky Limited Partnership D/B/A The Courier Journal v. Governor Ernie Fletcher, 05-CI-01015, Franklin Circuit Court, Division II (5/17/06), 4 in which the circuit court ruled that "purely personal" emails are "private communications not subject to disclosure under KRS 61.878(1)(a)," as well as Baker v. Jones, Ky. App., S.W.3d (2006), 5 in which the Court of Appeals held that emails exchanged by the mayor and city council members relating to irregularities in the financing of a convention center "were 'preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. '"
To facilitate our review of the issues on appeal, and pursuant to our KRS 61.880(2)(c) request, 6 the Cabinet furnished this office with copies of emails:
retrieved during an examination of the office computer assigned to Bobbie Malmer, examination of which included the outlook folders and files located on the server assigned to Ms. Malmer and on the hard drive of her computer. 7
Citing Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), the Cabinet noted that the emails are "personal, the public disclosure of which would constitute an unwarranted invasion of personal privacy, " and that Ms. Malmer "was informed of the necessity of examination and retrieval to resolve issues pending in this appeal and did not have objection to the examination and retrieval process for in camera review." While the review of the disputed emails confirms that they are, with a single exception, 8 nonwork related, it does not confirm that they qualify for exclusion from public inspection as "[p]reliminary drafts, notes, or correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency" per KRS 61.878(1)(i), or as "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" per KRS 61.878(1)(j). Moreover, while we acknowledge that disclosure of the emails "may cause inconvenience or embarrassment to public officials or others," 9 we cannot agree that they implicate privacy interests of sufficient weight to overcome the public's right to know how public agency employees are utilizing public equipment on the public's time and at public expense. This is especially true in view of the fact that both parties to these email transmissions affixed their signatures to a Justice Cabinet document entitled "Employee Acknowledgment" in which they stated that they had read, and agreed to comply with, GOT Policy Number 060, Internet and Electronic Mail Acceptance Use Policy 10 declaring that "[e]mployees shall have no expectation of privacy associated with Email transmissions and the information they publish, store or access on the Internet using the Commonwealth's resources."
It is well established, and apparently undisputed, that public employee email is a public record within the meaning of KRS 61.870(2), and subject to inspection under the Open Records Act if it is not otherwise exempt. See, e.g., 00-ORD-132, p. 7, citing 99-ORD-22; 99-ORD-206, and 00-ORD-16; see also, 02-ORD-160; 03-ORD-005; 04-ORD-059; 05-ORD-144; 05-ORD-210; 05-ORD-221. Thus, at page 7 of 00-ORD-132, this office opined:
[T]hese 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 11 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 12 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 [(n)]. As the Kentucky Supreme Court has observed:
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994).
A copy of 00-ORD-132 is attached hereto and incorporated by reference for the purpose of establishing the general guidelines governing access to email generated by public agency employees and officials. 13
Among the exceptions which are frequently invoked to support nondisclosure of public employee email, KRS 61.878(1)(i) and (j) authorize public agencies to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
Generally speaking, these exceptions "are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussion of matters of concern to the agency." 05-ORD-210, p. 3, 4, citing 94-ORD-118 and 93-ORD-125. In interpreting KRS 61.878(1)(i) and (j), the Attorney General has consistently applied the rule of strict construction codified at KRS 61.871, 14 and borne in mind that the Open Records Act "exhibits a bias favoring disclosure. " Board of Examiners v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 327 (1992). For example, in 97-ORD-183, this office dissected the language of KRS 61.878(1)(i), opining:
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 . . ." Id. at 804. [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, p. 9. (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.
In 05-ORD-210, we applied this reasoning to an open records dispute involving access to an email that constituted neither a draft, a note, nor correspondence with a private individual, insofar as the latter phrase has been interpreted by this office to extend only to "that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. We concluded that the disputed email was not shielded from disclosure by operation of KRS 61.878(1)(i). Accord, 05-ORD-144; 05-ORD-221; compare 05-ORD-280; 06-ORD-021; 06-ORD-180.
In a similar vein, this office has consistently rejected agency invocation of KRS 61.878(1)(j) where the disputed records are devoid of opinion, recommendations, or policy formulation. See, e.g., 05-ORD-210, citing 05-ORD-072. As noted above, the purposes underlying this exception have been widely discussed and turn on the recognition that:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there will be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
OAG 88-85, p. 4. This purpose is not served by the nondisclosure of records containing neither opinion, recommendation, nor policy formulation, and this office has so concluded in a series of open records appeals involving access to public employee email. See, 05-ORD-144; 05-ORD-210; 05-ORD-221; compare, 05-ORD-280; 06-ORD-021; 06-ORD-180.
Applying the rule of strict construction to the disputed emails now before us, and guided by the knowledge that the Open Records Act exhibits a policy favoring disclosure, we find that those emails do not qualify as preliminary drafts or notes as those terms have been strictly construed by this office. Nor do they qualify as correspondence with private individuals other than correspondence which is intended to give notice of final agency action, as, again, the exception has been strictly construed. 15 Finally, we find that because they are devoid of recommendation, policy formulation, or opinion, other than opinions bearing on non-work related issues, they do not qualify as preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended. Although we cannot disclose the specific content of the records, by virtue of KRS 61.880(2)(c), we can generally describe them as conversational-type communications of a transitory nature that do not enjoy protection under KRS 61.878(1)(i) or (j) because they do not implicate "the need for governmental confidentiality." Here again, the purpose for which the exceptions exist would not be served by the nondisclosure of these emails. Beckham at 578. Because they do not qualify for protection under either of the referenced exceptions, we do not reach the issue of whether they were or were not adopted as the basis of final agency action.
We reject the Cabinet's argument that because the disputed emails are personal, their disclosure would constitute a clearly unwarranted invasion of personal privacy 16 within the contemplation of KRS 61.878(1)(a). In so doing, we are again guided by the legislative statement of policy, codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest," and by the knowledge that these individuals expressly waived their privacy interests when they signed off on the Cabinet's "Employee Acknowledgement," which states that they have read, and agreed to comply with, GOT Policy Number 060, Internet and Electronic Mail Acceptable Use Policy, declaring that "[e]mployees shall have no expectation of privacy associated with Email transmissions and the information they publish, store, or access on the Internet using the Commonwealth's resources." 17
In 99-ORD-112, this office opined that a "review of records created on public equipment enables the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes." 99-ORD-112, p. 1, citing 96-ORD-238. There, we held that a school district improperly withheld copies of pornographic materials allegedly copied from an internet site by a school district employee, declaring that "[r]ecords which were obtained on public time and on public equipment are, in our view, public records. " Id. This decision echoes a line of Attorney General's opinions recognizing that the use of public equipment at public expense does not, in general, implicate KRS 61.878(1)(a). For example, in OAG 86-21 this office held that telephone records of the Legislative Research Commission were subject to public inspection. 18
In subsequent opinions, this logic was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), and telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92). Common to each of these decisions is the recognition that public equipment purchased with public funds, and used by public employees on public time, is intended for purposes related to public service. The public's interest in disclosure of records documenting use of public equipment is therefore generally greater than the privacy interests of public employees engaged in personal use of such equipment and thus diverted from their official duties.
In 00-ORD-97, this office addressed the question whether a public agency could properly withhold a public employee's personal files on a computer purchased with agency funds on the basis of KRS 61.878(1)(a). Concluding that the agency could not, 19 we relied heavily on 99-ORD-112. In 99-ORD-112, the school district failed to advance any statutory argument supporting nondisclosure of records reflecting the apparently improper personal use of the district's computers and internet service. Our analysis turned on the public interest served by disclosure of the records as set forth above. Here, as in 00-ORD-97 and 99-ORD-112, we believe that the same public interest is served by disclosure of personal emails on publicly owned computers. The Cabinet asserts a nonspecific privacy claim on behalf of the employees notwithstanding the fact that they effectively waived any such claim by executing the "Employee Acknowledgement." Our review of the emails discloses nothing of a sufficiently intimate or personal nature that it would override the public's interest in monitoring how these public agency employees utilized public equipment on public time and at public expense. As in OAG 86-21, we are mindful that there may be occasions where matters discussed in personal email "touches upon the most intimate and personal features of private lives," Board of Examiners at 328, and that in such instances, the public's interest must yield to the privacy interests of the participants in the email transaction. We are not, however, prepared to extend blanket protection to personal email transmitted by public employees on public equipment on the basis of KRS 61.878(1)(a). Nor are we prepared to sanction the view that a search of a public employee's email on a public computer constitutes a clearly unwarranted invasion of personal privacy. Given the acceptable use policy which applies to all executive branch agencies and users, and the case specific analysis mandated by the courts relative to agency invocation of KRS 61.878(1)(a), we believe it is incumbent on public agencies to conduct a search of the user's email messages before invoking the exception.
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.
Stephen B. Malmer161 Bellemeade DriveFrankfort, KY 40601
Luke MorganExecutive DirectorOffice of Legal ServicesJustice and Public Safety Cabinet125 Holmes StreetFrankfort, KY 40601
Jeff MiddendorfGeneral CounselJustice and Public Safety Cabinet125 Holmes Street, Second FloorFrankfort, KY 40601
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 Mr. Malmer submitted a related request to the Cabinet on June 7, 2006. The Cabinet responded on June 13, 2006, releasing three emails from David Moss's email account and withholding an unspecified number of .xls files because "they pertain[ed] to grants of law enforcement agencies." Because Mr. Malmer did not attach a copy of his June 7 request to the appeal now before us, we are foreclosed from considering the issues that the Cabinet's June 13 response raises by operation of 40 KAR 1:030 Section 1 which provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial . . . ."
2 The Cabinet acknowledges that its response was untimely. We therefore will not lengthen this decision with a discussion of the procedural requirements of the Open Records Act found at KRS 61.880(1).
3 See note 1, above.
4 A motion to alter, amend, or vacate this judgment in this case was filed on May 31, 2006.
5 Petition for discretionary review pending.
6 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.)
7 There is no question as to the adequacy of the Cabinet's search for responsive emails. Compare, 06-ORD-022.
8 That email, from Mr. Moss to Ms. Malmer, and relating to a conference, will be returned to the Cabinet under separate cover. It is work related and therefore not responsive to Mr. Malmer's request.
9 KRS 61.871.
10 A copy of GOT Policy Number 060 is attached hereto.
11 Now, the Commonwealth Office of Technology.
12 See note 8, above.
13 It is our understanding that the General Records Retention Schedule for State Agencies, referenced in 00-ORD-132, is currently undergoing review and revision by the Kentucky Department for Libraries and Archives. If the recommended changes are approved at the September 14, 2006, Archives and Records Commission meeting, the retention period for general correspondence, Records Series M0002, will no longer be indefinite, but will instead be fixed at two years. The retention period for informational and reference material, Record Series M0018 which is defined as, inter alia, "casual email and other correspondence not related to official duties," and into which the disputed emails fall, will remain the same: Destroy when no longer useful. Because the disputed emails fall within the parameters of Records Series M0018, the Cabinet had no obligation to maintain them for a fixed period and their destruction does not raise records management issues or trigger the duty to employ specialized restoration processes to recover improperly destroyed records as described in 06-ORD-022, assuming that destruction is consistent with the Cabinet's existing records management program and that the Department for Libraries and Archives is regularly notified by the Cabinet's records officer of Records Series M0018 destruction per 725 KAR 1:030.
14 KRS 61.871 thus provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
15 The Cabinet characterizes the emails as "preliminary correspondence. " The Open Records Act contains no exception for "preliminary correspondence" except for correspondence with private individuals. Neither Ms. Malmer nor Mr. Moss are private individuals. This portion of the exception is facially inapplicable.
16 We are aware of the nonfinal circuit court opinion referenced by the Cabinet in its supplemental correspondence to this office. However, we have located no authority that directs this office to treat the circuit court's opinion as legal precedent. Unless or until an appellate court issues a published opinion that is contrary to our own, we will continue to adhere to the position reflected in the referenced line of precedents. CR 76.28(4)(c).
17 In response to this office's request, the Cabinet provided us with copies of the "Employee Acknowledgement" signed by Mr. Moss and Ms. Malmer.
18 In the same opinion, the Attorney General recognized that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has confidential." OAG 86-21, p. 4. We noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. Under this line of reasoning, the agency must "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4).
19 We are aware that the Court of Appeals rejected this view in Stewart v. University of Louisville, 01-CA-000980-MR, (Ky. App. 2002), an unpublished opinion in which the court was primarily guided by the lack of evidence that a University employee was abusing her public time or public resources, since her activities were confined to nonwork hours, and the absence of a University policy prohibiting her from using her computer for nongovernmental purposes. Again bearing in mind that this is an unpublished opinion that cannot be cited as legal precedent, we believe the case is distinguishable on its facts insofar as the public employees in the appeal before us had agreed to be bound by an acceptable use policy declaring that email users "shall have no expectation of privacy associated with Email transmissions . . . using the Commonwealth's resources" and that misuse of public resources can be inferred from their decision to nevertheless engage in nongovernmental communications.