Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Erlanger City Council Member Patty Suedkamp violated the Open Records Act, or subverted the intent of the Act within the meaning of KRS 61.880(4), in the disposition of Gary Meyer's January 2, 2018, request for e-mail correspondence pertaining to appointments of various city officials. For the reasons that follow, we find that Council Member Suedkamp 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. Mayer's letter to Ms. Suedkamp stated, in pertinent part, as follows:
I am currently requesting that you provide copies of emails sent to the mayor, other council members or city staff related to the appointment of non-elected city officers or city representatives such as PDS, OKI, Municipal Government League, Board of Adjustments, Board of Appeals or the Code Enforcement board. This request includes messages sent from Patty.Suedkamp@cityoferlanger. com or pattyerl @aol. com. This should include messages between the period of October 1, 2017 and December 31, 2017.
Ms. Suedkamp replied by e-mail on January 4, 2018, stating:
Unfortunately, I do not save my emails therefore, [ sic ] I cannot provide you with the copies you requested. In any event, those emails relate to public offices or agencies and are exempt from open records requirements in that they constitute preliminary discussions, notes, and recommendations in regards to such appointments.
On January 5, 2018, Mr. Meyer followed up his request with these questions:
Could you confirm whether you are claiming exemption under KRS 61.878(1)(i) and/or KRS 61.878(1)(j)? 1 Your response seems to combine both items and I would like to be certain should I decide to appeal to the KY Attorney General.
Can you also confirm that you are not maintaining any copies of any emails related to city business even those sent using a private email account?
Ms. Suedkamp merely replied: "I stand on my above comments, no more left to say." Mr. Meyer's appeal was received in this office on January 12, 2018.
An individual city council member, as a "local government officer," is a "public agency" under KRS 61.870(1)(a) for purposes of the Open Records Act. 03-ORD-196; 15-ORD-201. Accordingly, records "generated and maintained by or for [Ms. Suedkamp] in the discharge of [her] public function, " to the extent that she is their official custodian, are "public records of that [council member] ." 03-ORD-196; 14-ORD-012. Therefore, insofar as Council Member Suedkamp may have intended to rely upon KRS 61.878(1)(i) or (j), her failure to cite those subsections constituted a violation of KRS 61.880(1), which requires any public agency's response denying a request for public records to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." (Emphasis added.) The primary assertion in Ms. Suedkamp's response, however, appears to be that she "do[es] not save [her] emails" and thus has no records to provide.
On January 23, 2018, attorney Jack S. Gatlin responded to this appeal on behalf of Council Member Suedkamp. He points out that in addition to Ms. Suedkamp, "Mr. Meyer made the same request to the City and Mayor Hermes," and the City of Erlanger responded on January 16, 2018, by providing all responsive e-mails from the Patty.Suedkamp@cityoferlanger. com account, regardless of whether they were deemed exempt under KRS 61.878(1)(i) and (j). As Council Member Suedkamp is an official of the City of Erlanger, which manages the cityoferlanger. com domain, we concur with Mr. Gatlin's assertion that this appeal is now moot with regard to the e-mails sent from that account.
As to the pattyerl @aol. com account, Mr. Gatlin argues that they "are not subject to open records requests." He elaborates:
Pursuant to KRS 61.878(i) [ sic ] "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" are excluded from open records. Any emails sent from Ms. Suedkamp's personal email account to the City are not verifiable by the City as the domain is not managed by the City and no emails would have been sent from Ms. Suedkamp's personal account regarding "notice of final action of a public agency" .
Ms. Suedkamp properly denied Mr. Meyer's requests as she did not send or receive emails regarding any final action taken by the City. Through reviewing the emails sent to the City and already sent to Mr. Meyer, it appears she received and sent emails regarding preliminary discussions and recommendations of appointments.
(Emphasis added.) We construe Mr. Gatlin's argument as asserting that (1) the City of Erlanger does not have access to any e-mails sent from the pattyerl @aol. com account, and (2) any such e-mails between Ms. Suedkamp and city personnel would constitute "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and therefore would be exempt from disclosure under KRS 61.878(1)(i).
With regard to the latter argument, it is clear that "communications exchanged by public officials on a matter pertaining to public business ? do not enjoy protection under ? KRS 61.878(1)(i) as correspondence with private individuals." 08-ORD-140. We further note that even if, as Ms. Suedkamp initially argued, her e-mails were "preliminary discussions, notes, and recommendations" relating to appointments of local officials under KRS 61.878(1)(i) and (j), they would lose their preliminary character if they were adopted as the basis of final action. See
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"); 01-ORD-83 (records that form a basis for final action are regarded as adopted). Therefore, merely reciting that the communications were not notices of final action would be insufficient to meet a public agency's burden of proof under KRS 61.878(1)(i) or (j).
The primary issue, however, is the fact that the City of Erlanger denies having any access to e-mails sent from the pattyerl @aol. com account, while Ms. Suedkamp asserts that she does not retain any such e-mails relating to public business in her role as a council member. 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. Nevertheless, as we recently held, e-mails of a public servant, generated in the discharge of that person's public function , are records "used ? by a public agency" and therefore are "public records" under KRS 61.870(2), regardless of whether the e-mail is sent from a public or a private account. 17-ORD-273 (copy attached hereto and reasoning adopted herein).
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)). Since Council Member Suedkamp does not deny having conducted public business on her AOL account, we find that to the extent that she did so and failed to retain any such e-mails, she subverted the intent of the Act by having "systematically failed in [her] duty to properly maintain ? public records. " 15-ORD-011; 17-ORD-273.
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 KRS Chapter 171. 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.
Footnotes
Footnotes
1 KRS 61.878(1)(i) and (j) create exceptions to the Open Records Act in the cases of, respectively:
"(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
"(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."