Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in denying Steven Farmer's October 17, 2009, request for a copy of a specified e-mail transmitted to Cindy C. Johnson, Office of the Governor by Jon R. Klein, CHFS Office of Legal Services, on Thursday, September 23, 2004, in which Mr. Klein indicated that he was "attaching an e-mail that you might be interested in regarding Mr. Farmer." Because the requested e-mail was generated in September 2004, and is properly characterized as Routine Correspondence, Record Series No. M0002 on the General Schedule for State Agencies, 1 the disposition instructions for which dictate that such records must be retained for "no longer than 2 years," the position of the CHFS that said e-mail was properly destroyed is entirely credible. Having affirmatively indicated as much to Mr. Farmer in a timely written response following a thorough search of both paper and electronic files, the agency discharged its duty.
By letter dated October 24, 2009, Mr. Farmer initiated this appeal challenging the failure of the CHFS to respond in a timely manner upon receipt of his written request. Upon receiving notification of Mr. Farmer's appeal from this office, Mr. Klein responded on behalf of the CHFS, initially advising that Mr. Farmer's request was received on October 20, 2009. Mr. Klein correctly observed that "[s]ince the Cabinet received the request on October 20th, the Cabinet's response was not due until October 23rd, three business days later. KRS 446.030(1)(a)." Attached to Mr. Klein's written response was a copy of his letter dated October 23, 2009, which he incorporated by reference "just as if it were copied here verbatim." Mr. Klein deposited his original response in the mail "prior to the close of business on October 23, 2009." Accordingly, "the Cabinet's response was timely." Consistent with prior decisions applying KRS 61.880(1), this office agrees. 2
In his letter dated October 23, 2009, Mr. Klein advised Mr. Farmer that following "a thorough search through emails on [his] computer dating back to 2004 and several volumes of paper files," he was "unable to locate the requested document." Mr. Klein further noted that "the records retention period for routine business-related correspondence, the type of document requested here, is 'retain no longer than 2 years.['] 725 KAR 1:061(1)(c)8, Schedule M0002." Because the requested e-mail "was created well over two years ago," Mr. Klein explained, it "has been destroyed in accordance with the applicable record[s] retention schedule and records retention practices in effect at the time of the destruction." Citing 05-ORD-109, Mr. Klein further asserted that the CHFS "cannot now produce a document that it no longer has in its possession." Accordingly, the CHFS denied Mr. Farmer's request "in its entirety." Because the CHFS cannot produce a nonexistent record for inspection or copying nor is the CHFS required to "prove a negative" in order to refute Mr. Farmer's claim that said e-mail exists, there is no basis upon which to find that a violation of the Act was committed; rather, the CHFS was not permitted to retain the record for any longer than two years, and therefore presumably destroyed it well before Mr. Farmer's request in accordance with the applicable records retention schedule. 3
With regard to statutory obligations of a public agency upon receipt of request for nonexistent records generally, the analysis contained in 07-ORD-188 is controlling; a copy of that decision is attached hereto and incorporated by reference. As the Attorney General has long recognized, a public agency cannot afford a requester access to nonexistent records or those it does not possess. 4 07-ORD-190, p. 6; 06-ORD-040. In other words, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist (or are in the possession of the agency) as the CHFS asserted in a timely manner here.
To clarify, the role of Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(1); this office is without authority to deviate from that statutory mandate. Nevertheless, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records when the General Assembly enacted KRS 61.8715 in 1994, pursuant to which "public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740]." In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the record(s) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist). For example, the agency "must identify steps taken to locate missing records or explain under what authority the records were destroyed. " 08-ORD-015, p. 4. Mr. Klein has done both and the Act requires nothing more.
More specifically, Mr. Klein searched "through emails on [his] computer dating back to 2004 and several volumes of paper files" but was unable to locate a copy of the requested e-mail, presumably because it was properly destroyed in the normal course of business. As previously indicated, the requested e-mail is properly characterized as Routine Correspondence, which is governed by Record Series No. M0002 of the General Schedule for State Agencies, developed by the Kentucky Archives and Records Commission pursuant to KRS 171.530, and promulgated into regulation at 725 KAR 1:061. As Mr. Klein correctly observed, the disposition instructions for Series No. M0002 require that state agencies maintain such records for no longer than two (2) years; accordingly, this office finds the assertion that no such e-mail currently exists to be fully credible. The CHFS cannot be said to have violated the Act in failing to produce an e-mail that was apparently destroyed approximately three years ago.
This office has previously noted that "routine correspondence" (also known as "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." See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002; 09-ORD-044, p. 6; 03-ORD-024. 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. Although it has an indefinite retention period, 5 it may be retained "no longer than two years." Id. "Discretion rests with the agency and user to determine whether general [routine] correspondence need be retained." 00-ORD-132, p. 9. In other words, "[n]o requirement exists for the permanent archiving of these records." Id.
Having affirmatively indicated to Mr. Farmer that no responsive e-mail exists in a timely written response, the CHFS discharged its duty under the Open Records Act relative to same. 05-ORD-109, p. 3; 02-ORD-144; 97-ORD-161; OAG 91-101; OAG 86-38. To hold otherwise would result in the CHFS "essentially hav[ing] to prove a negative" in order to refute a claim that such a record still exists. 07-ORD-190, p. 7; 07-ORD-188. In the absence of the requisite prima facie showing, this office must affirm the agency's denial of Mr. Farmer's request in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), and prior decisions of this office such as 07-ORD-188. See 07-ORD-112 (copy enclosed). Assuming that the CHFS made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested," 6 as the record on appeal suggests, the CHFS cannot be said to have violated the Act in denying a request for a nonexistent record. 05-ORD-109, p. 3.
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 As explained in the "Function and Use" section for Series No. M0002, "[t]his series documents implementation of the agency policy espoused in Series M0001, OfficialCorrespondence. Typically, Routine Correspondence includes documents relating to day-to-day activities such as procurement, organizational structure, personnel, customer service, etc." Routine Correspondence includes:
. . . incoming and outgoing correspondence that may consist of: letters, notes, postcards, memoranda, announcements, or other information commonly found in the body of an e-mail message and/or any attachments. Electronic mail messages also contain transactional information (sender, recipient, date, subject, etc.) in the header of the message and in the properties field of the electronic file. Routine correspondence does not include: non-business related messages, spam and junk mail. (Emphasis added.)
2 Because the law regarding application of KRS 61.880(1) is well-established and even a cursory review of that provision, KRS 61.872(5), and KRS 446.030(1)(a) validates Mr. Klein's position, this office will not belabor the issue or unnecessarily lengthen this decision with further analysis.
3 By letter directed to Mr. Klein on October 27, 2009, a copy of which Mr. Farmer forwarded to this office, and in a "Memorandum" dated November 2, 2009, Mr. Farmer challenged Mr. Klein's response; however, nothing in either document alters the relevant legal analysis or the final outcome.
4 As consistently emphasized by this office, the Open Records Act does not empower the Attorney General to order the creation of records. See 96-ORD-139; OAG 89-66; OAG 80-308; OAG 78-231. In 95-ORD-48, the Attorney General reaffirmed this longstanding principle in light of recent amendments to the Open Records Act, expressly declining "the invitation to invade the prerogative of public agencies in determining, 'in accordance with standards, rules and regulations prescribed by the Department for Libraries and Archives,' what records they must create. KRS 171.640." Thus, our office has affirmed the principles articulated in OAG 78-231 and its progeny relative to records creation, concluding that the Attorney General "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2. See 98-ORD-5. As a corollary to this proposition, the Attorney General has often noted that a public agency cannot afford a requester access to nonexistent records.
5 With regard to "Indefinite Records" generally, the General Schedule provides:
The term "indefinite" is not a retention period and does not mean permanent. Indefinite means the period of time before the retention of the record begins. For example, the retention of the departmental copy of personnel records is five years, but the retention does not begin until the individual's employment with the agency is terminated. In this case, the indefinite period is the time between creation of the record and termination of employment, which triggers the five year retention period. In the case of reference and informational material, the retention is determined by when the records cease to have value administratively, which could be one day, one month, or several years. The disposition instructions in the General Schedule explain the conditions under which indefinite records may be destroyed.
6 "In assessing the adequacy of an agency's 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.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).