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 Covington subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in the disposition of Deb Enneking's September 2, 2009, request for records pertaining to an organization known as "One Covington." For the reasons that follow, we conclude that inasmuch as the City represented that charges would be made for an outside contractor's fees to retrieve archived electronic mail messages, in contravention of KRS 61.874(3), the intent of the Act was subverted.
In her September 2 letter to City Solicitor Frank Warnock, Ms. Enneking made a twofold request. The first part related to records concerning the MainStrasse Village Association and the Cock and Bull English Pub, and does not appear to be part of the present controversy. The second part of her request stated as follows:
I would also like to request copies of all records in the possession of the city pertaining to the "One Covington" organization, including all memos, files, correspondence whether hard copy or electronic or other documentary materials regardless of form or characteristics which were prepared, owned, used, or in the possession of or retained by the city.
On September 24, Assistant City Solicitor T. Alex Mattingly responded by letter, indicating that the request had been received on September 4, 2009, and stating:
The City has partially completed this request. A total of 447 of [sic] documents responsive to your request have been compiled. Most of these documents relate to permits granted to the MainStrasse Village Association and Cock and Bull English Pub.
Please note that you are receiving redacted documents. Personal information such as Social Security numbers, personal phone numbers and related information have been blacked out. Such information is exempted from disclosure via an open records request by KRS 61.878(1)(a).
As I mentioned to you verbally earlier this week, my office is still in the process of compiling any correspondence related to these permits. Responsive documents, if any, should be available by October 10, 2009.
Ms. Enneking sent Mr. Warnock a follow-up letter dated October 9, 2009, requesting some further documents related to the first part of her request and then adding:
As an aside, I notice that the documents you provided to me so far under my first request do not contain copies of any emails. Could you please confirm that there are none? It seems strange to me that all of these events could have been reviewed and approved by the city without any email communication.
She also sent Mr. Mattingly an e-mail on October 14, 2009, stating: "Just a follow up from my previous Open Records request for documents containing 'One Covington.' Will they be ready soon?" Mr. Mattingly replied:
I just recently received the final batch of e-mails that were responsive to your request. I am in the process of going through them and removing any e-mails that are exempted from public records disclosure. You will get a written explanation if there are any exempted documents.
I anticipate completing this task by next week. So far I haven't seen any responsive documents that reference "One Covington."
In a letter dated October 19, 2009, Mr. Mattingly advised Ms. Enneking that his review was complete and some records would be withheld:
Per KRS 61.878(1)(j), the City has excluded approximately 15 e-mails that set forth preliminary recommendations and/or opinions regarding special events permits, the entities you mention and/or related matters. ? To disclose these internal records would defeat the purpose of KRS 61.878(1)(j), which was created to insure the integrity of the decision-making process by protecting all pre-decisional agency documents. [Citations omitted.]
An e-mail from the City Solicitor has also been excluded. This item is exempt under the rationale above and under the doctrine of attorney-client privilege.
On October 22, 2009, Ms. Enneking followed up once more by e-mail to Mr. Mattingly "regarding documents containing 'One Covington'[.] The organization was formed in 2007." Mr. Mattingly responded:
There is a letter in the mail responding to the other half [of] your September 2009 open records request. You should receive it any day now. I think there are 56 total documents, so the copying cost is $ 5.60. Feel free to send a check and we will mail them or you can come pick them up at City Hall.
I did not see any documents referencing One Covington in the non-exempted documents.
On November 3, 2009, Ms. Enneking replied by e-mail:
Alex, I've looked through my old emails and see quite a few from August, September and October, 2007 from Jay Fossett and others which reference the One Covington organization. As a matter of fact, it was a very contentious subject. Please make a concerted effort to review the city's email files from that time period, especially Jay's and those of economic development.
Mr. Mattingly responded on November 5:
I checked into what is involved with retrieving the e-mails you requested. The City would have to use its independent IT contractor to search for and retrieve responsive e-mails, if any, for former employees and archived e-mails. There is a substantial cost to this action. Accordingly, the City would have to ask you to be more specific regarding your request.
Per a Kentucky Attorney General's Open Records Decision 05-ORD-248, the request for all documents dated approximately within the last two years containing the words "One Covington" is not a sufficiently specific request. ?
If you are still interested in obtaining this information as you originally requested it, you must pay up-front for the cost of the IT contractor's time that would be billed to the City.
In a letter dated November 12, 2009, following some additional e-mail exchanges between the two, Mr. Mattingly informed Ms. Enneking of the contractor's estimate of $ 240.00, or four hours at sixty dollars per hour, for a search of the City's e-mail archives to find messages relating to "One Covington," which she would be required to pay in advance.
After some further e-mail communications, Ms. Enneking initiated this appeal on February 6, 2010, contesting the City's requirement that she pay the bill of the City's outside contractor to retrieve e-mails. 1 Mr. Mattingly responded to the appeal on behalf of the City on February 18, 2010. The City does not contest that the archived e-mails are public records. Mr. Mattingly states in part:
Enneking's request for all e-mails with the keyword "One Covington" is open ended and vague. This term relates to an independent business organization not affiliated with the City. The Kentucky Attorney General has recognized a search of documents using a keyword as "improperly framed" and that it "generally need not be honored."
He cites 99-ORD-14 for this proposition.
What distinguishes the present appeal, however, is that the records currently at issue are a defined class, archived e-mails, and not simply all records of any type, regardless of physical form or characteristics, as was the case in 99-ORD-14. Although Ms. Enneking's request was originally that broad in scope, the City has already complied with the entire request except for archived e-mails. The Attorney General's rationale in 99-ORD-14 for finding the generalized request an "unreasonable burden" under KRS 61.872(6) was that
[i]n order to comply with such a request, the [public agency] would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it in that period, to determine if [the key phrase] appears in or on the record? [T]his would include "home address lists, birthday lists, e-mail messages, case filings, routine correspondence and a myriad of other documents." [P]ublic employees "are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4.
99-ORD-14, p. 5 (emphasis in original). Here, by contrast, the City has already put in the overwhelming bulk of the effort with regard to documents referring to "One Covington." Before us in this appeal are only the archived e-mails, which the City admits would only take an IT worker approximately four hours to retrieve. Archived e-mails are "of an identified, limited class" (92-ORD-1261, p. 3), and four hours is not an "extreme and unreasonable" amount of time.
The real issue in this appeal is whether the City, consistently with the Open Records Act, can pass along the cost of employing an outside information technology (IT) contractor to retrieve its archived e-mails. KRS 61.874(3) states, in pertinent part:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
(Emphasis added.) We therefore start from the principle that the City may charge only the costs of reproducing its records and may not pass along staff costs. Mr. Mattingly argues:
The "records" that Enneking requested are not readily available to City staff. In fact, it is not known if any records responsive to her request exist at all. To search for these "records," the City must pay an IT contractor to access archived e-mails. The City does not have any information technology employees on its payroll or a current employee with the knowledge to complete searches for this archived information on a computer server. The City contracts with a local IT services company to install computer equipment and resolve many technology related issues. The City is simply requiring Enneking to pay costs billed to the City associated with the search and reproduction of any records. ?
It would seem that the General Assembly envisioned that regular public employee/ staff costs could not be passed on to a person/entity submitting an open records request. This situation is different. Contractor costs, such [as] an independent IT contractor's bill for services, to a public agency are not staff costs. The contractor is not [a] full-time or part-time employee of the City. No City benefits, pension or other public employee benefits are bestowed on the contractor or its employees. The costs charged the City by the IT contractor are the same as the costs for paper, copying, DVD copies and other costs envisioned and permitted by KRS 61.874(3).
(Emphasis in original.) The City's argument hinges upon the proposition that it may charge Ms. Enneking for the services of its outside contractor because the contractor is not "staff. "
We do not regard the definition of "staff" as the central issue. In our view, this appeal turns on the distinction between the cost of retrieving public records and the "cost of reproduction" as envisioned by KRS 61.874(3). The City proposes to use its contractor to search and locate archived e-mails responsive to Ms. Enneking's request. Presumably, once they are retrieved, the contractor's services will not be needed to print out copies of the e-mails. Retrieval is not the same as reproduction.
It is the understanding of this office that the archived e-mails in question are not deleted e-mails, which would require extraordinary, specialized processes to recover. A public agency is not required to recover deleted e-mails unless they were improperly destroyed (either because the destruction was premature under the agency's records retention schedule or because the destruction occurred after an open records request for the e-mails was made). 06-ORD-022. We understand the e-mails in this case to be not destroyed or deleted but merely archived, so that their retrieval would not involve the specialized recovery methods at issue in 06-ORD-022. 2
If a public agency chooses to keep public records longer than is mandated by its applicable records retention schedule, the agency must accept the ramifications of that choice. We have previously stated that "[a] public agency cannot, by means of a contract with a private company, deprive records of their public character." 3 09-ORD-020, p. 5. Nor, we believe, if a public agency elects to retain certain public records in archives, can the agency place those records effectively out of reach of the general public behind a technological barrier that imposes costs in excess of those permitted by KRS 61.874(3). The statute permits public agencies to prescribe costs of reproduction, not costs of retrieval.
It is likewise a public agency's choice whether to employ its own technology personnel or to contract with an outside business. Again, the agency must deal with the consequences of that choice. We see no principled basis on which to distinguish the City's argument from that of a public agency which might elect to hire a records management firm to handle all its open records requests. In doing so, the agency would have to absorb those costs insofar as they represented the retrieval of records, since KRS 61.874(3) only allows an agency to charge the "cost of reproduction. "
Lastly, Mr. Mattingly argues that "there is a public policy argument against taxpayers incurring costs related to Ms. Enneking's request. An expensive search of computer archives to look for documents that may or may not exist is contrary to common sense and is a waste of resources." We suggest that the City might rather have considered the cost to its taxpayers when it chose to retain archived e-mails in such a way that they could only be accessed by contracting for expensive outside services. The public policy of the Commonwealth of Kentucky is "that free and open examination of public records is in the public interest." KRS 61.871. The General Assembly has already determined that the cost of making public records available for inspection is justified. Furthermore, 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).
In conclusion, we find that the City of Covington subverted the intent of the Open Records Act, short of a denial of inspection, by attempting to charge the applicant for the cost of an independent contractor to retrieve archived records. Pursuant to KRS 61.874(3), the only permissible charge for a noncommercial request is the cost of reproduction.
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.
Deb EnnekingT. Alex Mattingly, Esq.
Footnotes
Footnotes
1 Pursuant to 40 KAR 1:030, Section 1, we do not consider the merits of the City's partial reliance on KRS 61.878(1)(a) and 61.878(1)(j). Since Ms. Enneking's letter of appeal did not include the September 24 and October 19 responses citing those provisions, any attempted appeal of those issues would be unperfected under KRS 61.880(2). The same is true as to the issue of the timeliness of the September 24 response under KRS 61.880(1) and the adequacy of its explanation for the delay under KRS 61.872(5).
2 Consequently, it makes no difference to our analysis whether the City has retained the e-mails under the requirements of its records retention schedule or simply because it chose not to delete them. If they are "retained by a public agency, " they are "public records. " KRS 61.870(2).
3 We ruled in 09-ORD-020 that a municipality could not contractually relinquish its own access to a privately owned server that stored e-mails the city was legally required to keep under its records retention schedule. Here, the City has not relinquished its access to the archived e-mails but has chosen to use an expensive means of retrieval.