Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of its employee Robin Vessels' July 24, 2017, request for copies of various e-mails pertaining to her, dating from July through September 2016. For the reasons that follow, we find no violation of the Act.
In her request, Ms. Vessels sought copies of: (1) a certain e-mail from private attorney John Johanboeke to Cabinet employee Lola Hudson; (2) a September 19, 2016, e-mail from Ms. Hudson to Cabinet employee Julie Padgett; and (3-6) certain e-mails between Ms. Vessels herself and either Ms. Hudson or Ms. Padgett. On August 1, 2017, 1 Jay Klein, Assistant Division Director, Office of Human Resource Management, replied: "I have checked with Julie Padgett and Lola Hudson regarding your request and no emails exist."
Ms. Vessels initiated this appeal on August 15, 2017. She states that she herself is still in possession of items 3 through 6 of her request, and contends that Mr. Klein should have asked her (Ms. Vessels) if she had them on her computer so he could provide them to her. She further argues that the Cabinet's employees improperly deleted items 1 and 2 and should attempt to recover them through the assistance of the Commonwealth Office of Technology (COT).
On August 23, 2017, Staff Attorney D. Brent Irvin responded to this appeal on behalf of the Cabinet. He argues that the Cabinet conducted a reasonable search for the e-mails and that they had been properly deleted under the State Agency Records Retention Schedule, which provides that routine correspondence be retained "no longer than two (2) years." 2 Specifically, Ms. Hudson and Ms. Padgett were contacted; Ms. Padgett replied that she no longer had the requested e-mails, and Ms. Hudson indicated that she routinely deleted e-mails every 30 days unless they "related to policy/system changes."
It is further the Cabinet's position that it is not necessary to engage the assistance of COT, which "only maintains a backup of emails for a very short period of time." As for Ms. Vessels' argument that the Cabinet should have sought the requested e-mails, from her, the Cabinet responds: "If Ms. Vessels would like to forward the four emails she has in her Outlook folder to Mr. Klein, so he can then email them back to her as the agency response to her request for documents she already has, we would be glad to do that."
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. When e-mails are deleted in accordance with a records retention schedule, there is no violation of the law. 12-ORD-148; 02-ORD-225. An exception, of course, would be "messages that are the subject of pending open records requests and/or litigation." 06-ORD-022. There is no indication in the record that this exception would have applied when these e-mails were deleted. Without evidence of "willful concealment or improper destruction of the requested records, we [do] not require the agency to conduct 'an exhaustive exhumation of records'" through a specialized restoration process. Id. (quoting 95-ORD-96); see also 14-ORD-050. Therefore, the Cabinet was not required to involve COT, even if the e-mails were still recoverable.
As for the adequacy of the search conducted by the Cabinet, a public agency is only required to "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. Thus, the agency need only "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Id. (quoting
Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978)). It is the height of unreasonableness to argue that the Cabinet should have asked Ms. Vessels whether she already possessed the records she was requesting. In any event, since the Cabinet has now offered to obtain the e-mails from Ms. Vessels and provide them back to her, we find this portion of the appeal moot under 40 KAR 1:030, Section 6; 3 13-ORD-001; 04-ORD-046; 03-ORD-087; OAG 91-140. Accordingly, we find no violation of the Open Records Act in the Cabinet's disposition of this request.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Since the record does not reflect when the Cabinet received Ms. Vessels' request, we make no determination as to whether the response was timely under KRS 61.880(1).
2 Ms. Vessels agrees that this is the applicable retention period for the e-mails in question.
3 If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."