Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Office of Management and Budget violated the Open Records Act by producing sign-in sheets for a single day, March 31, 2014, in response to Pat Thurman's April 2, 2014, request for "all visitor sign-in sheets for the Metro Council building for the month of March, 2014." We find that although Louisville Metro cannot be said to have violated the Act by failing to produce records that were destroyed, the destruction of those records raises records management issues that may warrant review by the Kentucky Department for Libraries and Archives.
In a response dated April 3, 2014, Louisville Metro provided Ms. Thurman with copies of the March 31, 2014, sign-in sheets "for the three security positions/entrances for the building," explaining that the remaining March 2014, sign-in sheets were "destroyed after each week as temporary/ informational records." This appeal followed.
In supplemental correspondence directed to this office, Louisville Metro expressed confusion about "what Ms. Thurman has appealed in this matter." It was the agency's position that all existing sign-in sheets were promptly disclosed to her, that it could not produce records that no longer exist, and that, consistent with past open records decisions, its inability to produce nonexistent public records did not constitute a violation of the Open Records Act. Although Louisville Metro did not cite a particular records series from its records retention schedule justifying its classification of sign-in logs as "temporary/ informational, " and authorizing destruction "after each week," it again defended its inability to produce the remaining sign-in sheets on this basis.
In a line of open records decisions dating back to 2004, this office has recognized that although an agency cannot produce for inspection or copying records that have been destroyed, and that the agency's inability to produce the records under these circumstances is not, in general, 1 a violation of the Open Records Act, the premature destruction of public records raises records management issues that may be appropriate for review by the Kentucky Department for Libraries and Archives. Pursuant to KRS 61.8715, recognizing an essential relationship between records access under Chapter 61 of the Kentucky Revised Statutes, and records management under Chapter 171 of the Kentucky Revised States, the Attorney General has regularly referred open records decisions involving potential records mismanagement to KDLA "for additional inquiry as that agency deems warranted." 04-ORD-040, p. 5; 07-ORD-182; 08-ORD-049; 08-ORD-138; 08-ORD-270; 09-ORD-193; 11-ORD-104; 11-ORD-053. This "appeal presents the occasion for [KDLA] to work with [Louisville Metro]" to implement proper management of sign-in sheets. 04-ORD-040, p. 5.
In its original response, Louisville Metro identified sign-in sheets as "temporary/ informational" records that are destroyed "after each week." Louisville Metro did not identify the applicable records series on its records retention schedule. Having reviewed that records schedule, we find no records series entitled "temporary/ informational. " The closest approximation is Records Series 6246, Informational and Reference Material. That records series encompasses:
materials of a non-technical or technical nature which may aid in or support the conduct of official agency business, but which are not critical to continued operations. This series may also include material used in the professional enhancement of agency employees or duplicate copies of material maintained solely for reference purposes by the agency or individual employees. Informational and reference material may appear in paper or electronic format and may be as formal as a publication or brochure (usually external to the agency) or as informal as a news clippings or note. Records in this series may be destroyed when they become obsolete or no longer useful to the agency.
Informational and reference material may include published and/or non-published material (usually external to the agency) such as: Periodicals; books; brochures; reports; some logs and other tracking tools; copies of memoranda and general announcements (that require no action on part of the recipient); professional literature not related to day-to-day activities (such as postings on a professional listserv); voice mail; casual email and other correspondence not related to official duties (see L6244-General Correspondence) ; and duplicate copies of records retained for reference purposes only.
According to the disposition instructions, records falling within the series may be "[d]estroy[ed] when obsolete or no longer useful."
Although sign-in sheets might be loosely characterized as "logs and other tracking tools," it is not clear that they were properly characterized as such or that Louisville Metro was authorized to destroy them "after each week." Again, Louisville Metro does not identify a specific record series supporting its position or disposition instructions directing destruction "after each week." Compare, Public School District Records Retention Schedule, Records Series L4492, School Sign-In and Sign-Out Log ("Retain one year, then destroy" ). It appears, instead, that the sign-in sheets to which Ms. Thurman requested access were unscheduled records that, consistent with established records management practices, "should have been retained by the agency until a retention schedule was established for them." See, 04-ORD-040, p. 5 and authorities cited above.
On March 13, 2014, the Archives and Records Commission established a records series, L6664, for sign-in sheets maintained by Metro Government. Authority for the Commission's action derives from KRS 171.420(3) which:
assigns the duty to "review and approve schedules for retention and destruction of records" and "determine questions which relate to destruction of public records" to the Archives and Records Commission, established under authority of KRS 171.420(1). That statute operates in tandem with 725 KAR 1:061 which incorporates each of the retention schedules, by reference, into administrative regulation.
12-ORD-112, p. 6, 7. Record Series L6664 of the Louisville Metro Records Retention Schedule applies to records that are:
used to identify those visitors, employees, vendors and others who may come into any Metro Government agency, including law enforcement, at any given time. This is used to verify these people are on the premises at any given time and may be used to track their whereabouts. Any person entering this government building may be asked to wear a ID badge after signing in and return it when leaving. This is mainly for security.
The retention and disposition instructions for Record Series L6664 requires Louisville Metro to "retain [the records] 30 days, then destroy. " Prior to March 13, Louisville Metro was obligated to maintain sign-in sheets as unscheduled records. After March 13, its destruction of sign-in sheets "after each week" was inconsistent with the retention and disposition instructions for Records Series L6664 of the retention schedule. Although not a violation of the Open Records Act, its inability to produce "all visitor sign-in sheets . . . for the month of March 2014" raises records management issues which may warrant review under Chapter 171 of the Kentucky Revised Statutes. Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems appropriate.
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:
Pat ThurmanDee AllenBrianda A. Rojas
Footnotes
Footnotes
1 An exception to this rule exists if the agency destroyed the record after a request for the record is submitted.