Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Clerk's handling of his July 23, 2015, request for:. all documents reflecting the proper and approved form for taxing districts to fill out for their 2015 property tax rate assessment to be submitted to the Spencer County Clerk; and. a letter created and sent by the Spencer County Clerk's office to the Spencer County Fire District Chief advising him that his submission of the 2015 tax assessment rates had not been filled out on an approved and official form as required by the Spencer County Clerk.
The Spencer County Clerk responded, through counsel, 1 by providing Mr. Trageser with a copy of "the correct form, which Chief Nation submitted originally. " Counsel denied Mr. Trageser's request for the letter from the clerk to the chief, advising him that the letter "was not saved" and that the clerk could not provide "a record that is no longer in existence."
In supplemental correspondence addressed to this office, counsel explained that the letter 2 "from [the clerk] was preliminary in nature to [the] chief regarding the form he used." Continuing, counsel argued that, as a preliminary document, the letter:
is exempt from public inspection. The note was generated for reference purpose only and, thus, can be destroyed when obsolete or no longer needed. After the note brought Chief Nation to the clerk's office, the problem was solved and the note was no longer needed and was destroyed.
Respectfully, we disagree.
The record series on which the clerk relies in support of her decision to destroy her letter to the chief, because it was "no longer needed, " is found at L4956 of the Local Government General Records Retention Schedule. The series title is "Information and Reference Material." According to the schedule's function and use section, such material contains information:
of a non-technical or technical nature which may aid in or support the conduct of official agency business, but which [is] 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 for 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[s]. Records in this series may be destroyed when they become obsolete or no longer useful to the agency.
This records series:
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 L4955-[Routine] Correspondence) ; and duplicate copies of records retained for reference purposes only.
As noted, the retention and disposition instructions state that "Information and Reference Material" should be "[d]estroyed when obsolete or no longer needed. "
We assign greater importance to the letter at issue here. The letter was transmitted by one public official, statutorily charged with specific duties relating to property tax administration, to another public official. It notified the latter official of an apparent deficiency in his completion of a tax assessment rate form. Among those duties statutorily imposed on county clerks, KRS 132.480 requires the clerk to make reports to the property valuation administrator. KRS 133.220 requires the clerk to prepare tax bills and, after delivery of the bills, to obtain a signed receipt from the sheriff/collector showing the number of bills and the total amount of tax due each taxing district. See also, KRS 133.180 (certification of tax books); KRS 133.181 (correcting tax books to comply with changes made by the Department of Revenue in its certification of the assessment).
In contrast to the "list of names on a work schedule for the Spencer County Fiscal Court booth represented at the Kentucky State Fair," which we classified as "Information and Reference Material" in 15-ORD-019, and therefore appropriate for destruction when no longer needed, the county clerk's letter to the chief must be considered "Routine Correspondence" under Records Series L4955 because it documented "the day-to-day general operations" of the clerk's office in the discharge of her statutorily assigned duties. Resolution of the apparent problem that prompted the clerk's letter to the chief has no bearing on the record's value and corresponding retention period.
The function and use section of Records Series L4955 states that "Routine Correspondence" :
can be found at all levels of an organization and documents business related correspondence that is not crucial to the preservation of the administrative history of an agency. It consists of correspondence that is of a non-policy nature and deals only with the day-to-day, general operations of an agency. Routine correspondence has traditionally been in paper format (handwritten or typed) but is increasingly found in electronic format such as email.
Its contents includes "incoming and outgoing correspondence that may consist of: letters, notes, postcards, memoranda, announcements, or other information commonly found in the body or the message and/or any attachments." The retention and disposition instructions for Record Series L4955 direct public agencies to "retain ['Routine Correspondence' ] for two years, then destroy." The fact that the clerk considered the problem with the chief resolved did not relieve her of her duty to maintain the letter for a fixed two year period. 3 Compare, State Government General Records Schedule Records Series M0002 (requiring state agencies to retain routine correspondence "no longer than two years").
The Local Government General Records Schedule does not amplify on the meaning of "routine correspondence, " but the State Government General Records Schedule describes it as:
correspondence that is not crucial to the preservation of the administrative history of the agency. It is generally of a non-policy nature and without permanent value. It deals only with the general agency operations, operations which are better documented by other records maintained by the agency. Examples of Routine Correspondence include assistance to clients, explanations of policy, requests for information, or business-related discussions within an agency.
Routine Correspondence also includes messages that are related to agency business, and support its work, but are not central or essential to it.
Because the letter from the clerk to the chief related to her office's business, and supported her office's work, but was not crucial to the preservation of the administrative history of her office, we believe that it should have been classified as "routine correspondence" and retained for a fixed period of two years.
The county clerk does not dispute that the letter identified in Mr. Trageser's request once existed. She acknowledged that she cannot produce a record that no longer exists. However, the premature destruction of the letter raises records management issues which may be appropriate for review by the Kentucky Department for Libraries and Archives. KRS 61.8715. 4 We therefore refer this matter to KDLA for additional inquiry as that agency deems warranted.
Either party may appeal this decision 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 Spencer County Attorney Ken Jones responded to Mr. Trageser's request on July 30, 2015. On appeal, Mr. Trageser notes that in 14-ORD-030, this office recognized the county clerk's status as official custodian of records for her agency's records. We remind Mr. Trageser that 14-ORD-030 was premised on "policies in existence in 2014" and that since the election of new county officials, "these policies may no longer apply." 15-ORD-017, p. 3, 4. Moreover, KRS 61.880(1) states that the response to an open records request "shall be issued by the official custodian or under his [her] authority . . . ." (Emphasis added.) Unless the current KRS 61.876(1) rules and regulations displayed in her office indicate otherwise, open records requests for records of the Spencer County Clerk should be submitted to the clerk, but the clerk's response may properly be issued by the clerk or an individual acting under her authority.
2 The disputed record is referred to, interchangeably, as a "letter" and as a "note."
3 Nor does the fact that the letter was or was not "preliminary" as counsel asserts. Premature destruction of the letter impedes our ability to assess its actual status under KRS 61.878(1)(i) and (j), and its exempt or nonexempt status is irrelevant to our analysis since the clerk can neither produce nor withhold a nonexistent record.
4 KRS 61.8715 provides, in part:
The General Assembly finds an essential relationship between the intent of [Chapter 61, as it relates to open records] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.