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 University of Kentucky violated the Open Records Act, or subverted the intent of the Act within the meaning of KRS 61.880(4), in the disposition of Lawrence Makana Eyre's request for e-mail correspondence between a computer science professor and certain domains. For the reasons that follow, we find that the University violated the Act by failing to conduct a proper search for records and subverted the intent of the Act with regard to the maintenance of public records. We therefore refer the matter to the Department for Libraries and Archives.
Mr. Eyre's undated request, which was received by the University on October 24, 2017, asked for electronic copies of:
All email correspondence between Nathan Jacobs (jacobs @cs. uky. edu) , a professor at the University of Kentucky, and anyone with the following domain addresses/handles: @amazon. com, @google. com, @uber. com, @microsoft. com, @ibm. com, @sap. com, @yelp. com and @oracle. com. I would like correspondence between November 1, 2015 and the date this request is fulfilled.
The University responded in writing on October 30, 2017, four business days after receipt of the request, in violation of KRS 61.880(1), which requires the written disposition of an open records request to be issued within three days of receipt, excluding only weekends and legal holidays.
In the response by its records custodian, the University stated as follows:
Pursuant to your recent Open Records Request, please be advised that the University's IT Department has informed that all email addressed to Dr. Jacobs' cs.uky. edu account has been automatically forwarded to an off campus account address and is not maintained on a University account; therefore, we have no documents responsive to your request.
(Emphasis added.) Mr. Eyre's appeal was received in this office on November 20, 2017. He argues that "[r]egardless of how Professor Jacobs deals with his email, they remain public records no matter which server they are located on."
On November 30, 2017, General Counsel William E. Thro responded to the appeal on behalf of the University, stating:
The University conducted a thorough search of all e-mails on university owned servers between Jacobs @cs. uky. edu and the requested domains. The result of that search was that there were no e-mails on the university owned servers.
There are two possible explanations for why there were no e-mails between Jacobs @cs. uky. edu and the requested domains. First, there was never any such e-mail. Second, any e-mail between Jacobs @cs. uky. edu and the requested domains were forwarded from the University's servers to non-University servers associated with a private e-mail account. As e-mail from Jacobs @cs. uky. edu is automatically forwarded to a private e-mail account, this second explanation has some plausibility.
Thus, the University purports to be unable even to ascertain what e-mail correspondence has occurred through Dr. Jacobs' University-owned cs.uky. edu account, since it is all automatically forwarded to a private server and not maintained on the University's server.
Since " all email addressed to Dr. Jacobs' cs.uky. edu account" (emphasis added) is forwarded to his private account, this presumably encompasses all e-mails to and from Dr. Jacobs which pertain to his work for the University, such that e-mails in his cs.uky. edu account are used by the University. "A record that is 'used' by a public agency is a public record of that agency under the definition of the term 'public record' found at KRS 61.870(2)." 1 12-ORD-178 (emphasis in original.) Indeed, the University does not deny that cs.uky. edu e-mails existing on its own servers are public records.
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. Procedurally, however, it is "incumbent on the [agency] to so state in clear and direct terms," 01-ORD-38, and "a written response that does not clearly so state is deficient." 12-ORD-162 (emphasis omitted) (quoting 02-ORD-144). In this case, the University merely asserts that no responsive records exist on its own servers, since it searched only in that location. Whether they exist on the private server to which all Dr. Jacobs' e-mail is automatically forwarded, the University has not attempted to determine.
Since the 1994 amendments to the Open Records Act addressing public agencies' duty to maintain public records, "the Attorney General has applied a higher standard of review relative to denials based on the nonexistence, destruction, or loss of public records. In order to satisfy its statutory burden of proof, a public agency must document what efforts were made to locate the missing records." 95-ORD-96 (citing 94-ORD-141).
An agency is required "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (quoting Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978)). In particular, the agency "is required to make a reasonable search of persons who are likely to have responsive documents." 14-ORD-181 (emphasis added); cf . 14-ORD-123; 17-ORD-104 (agencies complied with the Act through diligent searches by persons likely to possess responsive records). Failure to contact employees who are likely to have responsive records is an inadequate search and a violation of the Act. 14-ORD-181.
If records are "used ? by a public agency, " "they are subject to the Open Records Act, regardless of where they are located or whose 'personal property' they are considered." 17-ORD-050. "In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " 04-ORD-123 (quoting unpublished disposition in City of Louisville v. Brian Cullinan , Nos. 1998-CA-001237-MR and 1998-CA-001305-MR (Ky. App. 1999)). "Thus, records in the possession of [public] employees [can] meet the definition of a 'public record' for which the [agency] is accountable." 17-ORD-050. Where an employee is the sole possessor of public records, the agency "is obligated to retrieve them from [the employee] to facilitate public access to the records." 11-ORD-105. The University failed to make any attempt to retrieve responsive e-mails from Dr. Jacobs, the employee most likely to possess them.
Moreover, a public agency cannot escape accountability for public records by automatically forwarding them to a non-public location, "plac[ing] those records effectively out of reach of the general public behind a technological barrier." Cf . 10-ORD-084. "A third party authorized to possess a public agency's records 'holds [them] at the instance of and as custodian on the [agency's] behalf, and ? the [agency's] position that it has no control over these records is without merit.'" 16-ORD-017 (quoting 04-ORD-123). This includes a private e-mail account used by an employee to conduct public business.
In 15-ORD-011, we held that the Kentucky Board of Medical Licensure ("KBML") had "neglected its duty to maintain its public records ? in allowing an employee to rely solely upon his private email account to conduct public business. " We further held that "KBML 'subverted the intent of the [Open Records] Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records. '" 15-ORD-011 (quoting 14-ORD-100).
In this case, the University has not made explicit whether it even temporarily maintains a copy of any of the e-mails forwarded from Dr. Jacobs' cs.uky. edu account to his private account, or whether they are automatically deleted from the University's server at the time of forwarding. The latter alternative, however, is implied by the University's inability to state whether any responsive e-mails were generated, even within a recent span of time. Accordingly, we deem the University's practice of automatic forwarding to be the functional equivalent of conducting public business solely on a private e-mail account, which we held in 15-ORD-011 to be a subversion of the intent of the Open Records Act. Accordingly, we also find in this case that the University subverted the intent of the Act by having "systematically failed in its duty to properly maintain its public records. " 15-ORD-011.
In the 1994 amendments to the Open Records Act, the General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. " KRS 61.8715. The improper maintenance of public records raises issues which are appropriate for 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 warranted.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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