Request By:
Eric G. Farris, Esq.
Kenneth J. Stovall, Jr.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Mt. Washington violated the Open Records Act in the disposition of Eric G. Farris' November 11, 2008, request for a tape recording and e-mail transmissions relating to two commercial development projects. For the reasons that follow, we find that the City's response was partially in violation of the Act and also raises some concerns about the City's records management practices.
In his November 11 request Mr. Farris sought to inspect items including the following:
1. The minutes and the tape recording of the City Council meeting of the Mt. Washington City Council of Monday, November 10, 2008.
2. A copy of all correspondence between City Officials ? and the principals and/or agents of Oakbrooke Properties, LLC, (including Kenneth Stout), within the last two years and relating to the projects known as Eastbrooke Pointe and/or Mt. Washington Commons.
3. Copies of all e-mail transmissions and receipts to or from any of the parties or individuals mentioned in Paragraph 2 relating to Eastbrooke Pointe and/or Mt. Washington Commons within the last two years.
It is items 1 and 3 of this request that are currently at issue. In the City's response to Mr. Farris' request, dated November 14, 2008, City Clerk Kenneth J. Stovall, Jr., stated in pertinent part:
1. The minutes of the Mt. Washington City Council Meeting of Monday November 10, 2008 are a work in progress and will not be available until they are read and approved by the City Council at the Monday, November 25, 2008 City Council Meeting. The tape used in preparation of the minutes was purchased by the city clerk. As such, it is the personal property of the city clerk and will not be provided. (OAG 03-ORD-239).
?
3. The two years of specific email information requested in item three is overly burdensome to the City. (KRS 61.872(6)) It would require a search of all computer hard drives as well as two servers. The City has no access to one of the servers at this time. The City has no search program to meet this request. Further, even if such a program existed each email produced by the search engine would have to be individually reviewed to determine if privileged under other sections in KRS 870 et seq. and redacted as necessary. Therefore, the request cannot be complied with for the reasons given.
Mr. Farris initiated an open records appeal on November 17, 2008, in which he explained that his purpose for seeking the tape recording was to clarify whether the City had complied with the formalities of the Open Meetings Act, and requested that this Office "withdraw previous Opinions which exempt personal tape recordings made by public officials in the course of their duties from disclosure under the Kentucky Open Records Act. " With regard to the request for e-mails, Mr. Farris stated that the City had not sufficiently made its case for unreasonable burden under Kentucky case law and the previous decisions of this Office.
The City's response, submitted by the City Clerk, reiterates that the Clerk purchased the tape himself so it was not public property, and elaborates on his claim of unreasonable burden as follows:
It should be clear that [Mr. Farris] wishes the City to create something it does not have in the form he demands. Reference is made to 04-ORD-010 which does not require the Public Agency to create something in response to a request.
Further, it would require a search engine to search all emails on all 24 city computers hard drives, locating any hard drives that may have been taken out of service and the two internet servers the city has used in the past two years. The city has no search engine to search these emails for the specifics requested nor does it know the identity of all principals and agents of Oakbrooke Properties.
One of the servers cannot be accessed as our former Information Technology Service registered the City's domain name with the Server Company in the Service's own name; passwords have expired; the owner or current location of that Service cannot be located; and the Server Company will not release any information to the City since it is not the owner of the site. This is true for any emails that may be stored on that server for 18 of the 24 months requested.
Finally, ? even if the city possessed such a search engine, which it does not , anything it generated would first, be the creation of something the city doesn't possess, and second, require staff to review each "search hit" to determine if any exception or privilege applied.
(Emphasis in original.)
As to the tape recording made by the City Clerk, we find no violation of the Open Records Act. This Office determined in OAG 92-111 that "a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes [need not] release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property. " We have continued to follow this ruling in more recent Open Records Decisions. See, e.g ., 00-ORD-74; 06-ORD-039; 06-ORD-195.
As we observed in OAG 78-192, quoting Judge Robert Larson, "The Importance and Value of Attorney General Opinions," 41 OHIO L. REV. 357, 367-68 (1956):
"Attorney General opinions on matters of law, the law's application and construction, while perhaps outside the principle of stare decisis, are entitled to careful consideration and respect by state officers, the legislature, the courts, and the general public? The Attorney General, after careful and responsible study, writes and officially issues the opinion for the guidance of other officers of the state, who are bound to respect and should follow it until it is judicially overruled or changed by legislative action."
A concern for the stability of legal interpretations, and for the reasonable expectations of parties relying on those interpretations made by this office, cautions against a reversal of our prior decisions in the absence of some material change in the underlying statutes or judicial opinions that compels a different outcome. Since no change in the underlying law has been brought to our attention, we decline to revisit the issue decided in OAG 92-111. While Mr. Farris' motivation of ascertaining the City's compliance with the Open Meetings Act is admirable, we recognize that there are other avenues for accomplishing this goal, such as attending a public meeting in person and making one's own tape recording. See 96-OMD-143 (public body may not uniformly prohibit tape-recording a public meeting) .
Regarding Mr. Farris' request for e-mails between City officials and certain individuals on specified subjects, those e-mails must be divided for purposes of analysis into two categories; namely, (1) those to which the City claims it no longer has access and (2) those to which it still has access.
As to the first group of e-mails, we can find no violation of the Open Records Act itself. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The City's basis for its statement, however, gives cause for concern about its records management practices.
In its 1994 amendments to the Kentucky Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The City's assertion that the majority of its last two (2) years' worth of e-mails is no longer in its possession and control raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. A public agency cannot, by means of a contract with a private company, deprive records of their public character. According to the Local Government General Records Retention Schedule (incorporated by reference in 725 KAR 1:061, Section 2(1)(v)), general correspondence (including electronic mail) is to be retained by the local government for two (2) years. Since the City has apparently failed to maintain its access to these records in a manner that would allow compliance with the Schedule, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
Turning to those e-mails which the City still has in its possession and control, we believe the City's reliance on 04-ORD-010 is misplaced. That decision distinguished between a nonexistent list of certain documents and the documents themselves, finding that while a public agency was not required to generate a list, it was required to provide the existing documents requested. The City must provide Mr. Farris with the existing e-mails responsive to his request, to the extent it is able to do so.
A public agency "must expend reasonable efforts to identify and locate the requested records." 95-ORD-96. The mere fact that the City may not "know the identity of all principals and agents of Oakbrooke Properties" does not excuse it from providing the requested e-mails to and from those principals and agents whose identities it does know.
Nor do we believe the City has met the standard under KRS 61.872(6) of showing by "clear and convincing evidence" that production of the records would constitute an unreasonable burden. The fact that certain hard drives with responsive records may have been "taken out of service" by the City does not excuse the City from its duty to maintain public records and allow reasonable access to those records. A public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Furthermore, while a "search engine" might be of great convenience to the City in searching its e-mails, such a device is not essential to doing so. The City provides no clear and convincing evidence that it is unable to review individually the e-mails to or from the persons identified by Mr. Farris to determine which are relevant to the development projects in question.
The fact that such e-mails might need to be reviewed and redacted for exempted or privileged material does not, in and of itself, amount to an unreasonable burden. A public agency is always "obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised." Chestnut, supra, 250 S.W.3d at 664. "Thus, the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id. at 665. (See 04-ORD-028 for a thorough analysis of this Office's past decisions concerning the "unreasonable burden" standard.) In short, the City has not made the statutory showing that complying with the request for e-mails to which it has access would be unreasonably burdensome. To the extent that it failed to provide such e-mails, the City violated the Open Records Act.
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 proceedings.