Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that because all responsive email had been deleted and was not recoverable the Department of Corrections did not violate the Open Records Act in denying Robert W. McKinney's May 9, 2012, 1 request for copies of "emails that were passed between [Deputy Commissioner] Paula Holden and CTO Sanchez," an employee of Bell County Forestry Camp, from February 15, 2012, to March 20, 2012, relating to Mr. McKinney or to his transfer and reclassification. Assuming Deputy Commissioner Holden deleted the requested email in a manner consistent with DOC's retention policy for routine correspondence, her actions cannot be said to have violated statutes governing records access, 2 statutes and regulations governing records management, 3 or the statute recognizing "an essential relationship" between the two. 4 On this issue 06-ORD-022 is controlling. A copy of that open records decision is enclosed and the reasoning set forth therein is incorporated by reference.
In a timely response, DOC Open Records Request Coordinator Todd Henson notified Mr. McKinney "that there are no public records maintained by the Department of Corrections central office that are responsive to your request." He explained:
I contacted Deputy Commissioner Paula Holden to see if she saved any of the emails between her and CTO Sanchez concerning your transfer, but she said she did not save any of the requested emails. I then contacted the Commonwealth Office of Technology ["COT"] to see if they could recover any of the requested emails. They advised that they could only restore emails for the previous 12 days; therefore any emails dated February 15, 2012, through March 20, 2012, would be unrecoverable.
Accordingly, Mr. Henson denied Mr. McKinney's request asserting that DOC could not afford him "access to a record that it does not have or that does not exist."
On appeal, Mr. McKinney questions the brevity of the period during which COT can recover deleted email. In supplemental correspondence directed to this office, DOC responds that "[t]he May 9, 2012, date of Mr. McKinney's request for records was 50 days from the latest date mentioned, [and] the 12 day window of recoverability for deleted email was long gone." It is DOC's position that Mr. McKinney's request "was appropriately handled" since "the records no longer exist and cannot be retrieved." Assuming the requested emails were not deleted before DOC's retention policy for routine correspondence expired, we agree.
In 06-ORD-022, this office determined that the Transportation Cabinet did not "prematurely, or otherwise improperly, destroy []" an email that was created fourteen months earlier and that the Cabinet was therefore "not obligated to conduct a search utilizing specialized data recovery processes over and above those search methods regularly employed." 5 Based on its apparent content, we characterized the single email at issue in 06-ORD-022 as general correspondence. 6 Such correspondence, which has since been renamed "routine" correspondence with no change in retention, has an indefinite retention period but may be retained "no longer than two years." General Records Retention Schedule for State Agencies , Records Series M0002. Quoting from 00-ORD-132, a copy of which is also enclosed, we recognized that because general, now routine, correspondence has an indefinite retention, discretion rests with the public agency to establish an agency-wide retention period of up to two years. 7 In the absence of proof that the Cabinet violated state records retention requirements or agency-wide policy, we concluded that the email was deleted "in the normal course of documents management business." 06-ORD-022, p. 8.
The email at issue in this appeal must also be classified as routine correspondence inasmuch as it "is not crucial to the preservation of the administrative history of agency" but is instead "of a non-policy nature." General Records Retention Schedule for State Agencies . Like the email at issue in 06-ORD-022, it has an indefinite retention period but can be retained for no more than two years. When, in 2006, we undertook an examination of the issue we address today, the period during which deleted email could be recovered was even briefer. At page 6 of 06-ORD-022 we observed:
[Email] that cannot be located and is presumed destroyed when it is deleted by the user continues to reside on the user's active system for a period of time and is recoverable, even after the user "permanently" destroys it 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, the 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.
The current twelve day recovery period is slightly longer, but it is by no means long enough to permit recovery of email that may have been deleted more than fifty days ago. Here, as in 06-ORD-022, we assign no error to DOC for denying access to email that was deleted "in the normal course of documents management business." 06-ORD-022, p. 8. Absent proof that the Deputy Commissioner deleted the email before DOC's retention policy for routine correspondence expired, we find that its denial of Mr. McKinney's request did not constitute a violation of the Open Records Act. His objections to the brevity of the recovery period for deleted email maintained on COT's server are not appropriate for review under 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 proceeding.
Distributed to:Robert W. McKinney, # 201470Todd HensonLinda M. Keeton
Footnotes
Footnotes