Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
This is an appeal of a January 30, 2018 Open Records Request to the Northpoint Training Center ("NTC") submitted by inmate Kurt J. Lowe ("Appellant"). Appellant submitted a Request for Inspection of Records form seeking to "Inspect Only" nine (9) email exchanges. Appellant described the items to be inspected as follows:
1) All emails sent to RHU 1 about Kurt J. Lowe # 284794 by Captain Tracy Nitzel, along with all responses and ongoing email strands, that began on November 5th 2017.
2) All emails sent and received by Warden Botton about Kurt J. Lowe # 284794 since 9/21/17 to date
3) All emails sent and received by Deputy Warden Maendalyn Cochran about Kurt J. Lowe # 284794 since 9/21/17 to date
4) All emails sent and received by Deputy Warden Shea Carlson about Kurt J. Lowe # 284794 since 9/21/17 to date
5) All emails sent and received by Deputy Warden Craig Hughes about Kurt J. Lowe # 284794 since 9/21/17 to date
6) All emails sent and received by Captain Tracy Nitzel about Kurt J. Lowe # 284794 since 9/21/17 to date
7) All emails sent and received by Officer Dracie Wilson about Kurt J. Lowe # 284794 since 9/21/17 to date
8) All emails sent and received by UA Daniel Napier and Kelly Napier about Kurt J. Lowe # 284794 since 9/21/17 to date
9) All KOMS 2 communications between Central Office and NTC employees about Kurt J. Lowe # 284794 since 9/21/17 to date.
NTC issued a response on February 8, 2018. The facility informed Appellant that "additional time is needed" due to "the number of records being requested, the number of people who have to search for and gather the records, and the time needed to review any records for exemptions[.]" Appellant was also informed that a supplement to the response would be sent on or before February 16, 2018. NTC failed to cite the statutory grounds for extending the response, as required by KRS 61.872(5). 3
On February 14, NTC issued the supplemental response. The facility corrected one of the errors of the initial response by informing Appellant whether or not the email messages were available. Appellant was informed that no email messages were created or sent regarding item 1, item 2, item 4, item 7, and by UA Daniel Napier in item 8. Appellant was also informed that all emails of Captain Tracy Nietzel for item 6 and for Kelly Napier in item 8 "have been discarded due to adequately free up space. " All of the email messages created for item 3 and item 5 were available, but NTC informed Appellant that "only portions of these records that contain a specific reference to you are being provided in accordance with KRS 61.878(1)(l) and KRS 197.025(2)." Appellant was also told that records containing references to other inmates were "redacted in accordance to KRS 61.878(1)(a) as [records containing] information of a personal nature[.]" Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded to the appeal on behalf of NTC. Ms. Barker notes that NTC's statement relating to redacting references to other inmates was erroneous, and no such redactions occurred. Regarding item 9, NTC informed Appellant that KOMS was not an email system but "[i]f you are seeking case notes from KOMS, those will be provided to your CTO for inspection. "
Appellant appealed the disposition of his requests with this Office on February 26, 2018. He raises ten (10) arguments in his appeal. The only issue Appellant raises regarding NTC's open records response is that the facility did not respond in a timely manner. The bulk of Appellant's arguments involve the discarded email messages. Appellant argues that the act of discarding or destroying emails generally violates the Open Records Act. He further argues that the act of discarding or destroying these particular emails violated "state retention policies, procedures, regulations and statutes[.]" In the other seven (7) arguments, Appellant requests investigations into the actions of the NTC staff. Appellant argues that "NTC's contradictory responses regarding which emails were created or sent, do not exist, or were discarded" requires further investigation. He asks that this Office investigate the fact that redactions were made to emails that should only relate to him personally. Appellant argues that there should be an investigation into whether emails were discarded in paper or electronic form, and whether the act of discarding emails violates state law or sections of the United States Constitution.
NTC received the Open Records Request on February 1, 2018 and issued a timely response on February 8, 2018 as required by KRS 197.025(7). 4 The statute allows NTC five calendar days, excepting Saturdays, Sundays and legal holidays, to respond to the request. The initial response was timely. Though Appellant did not raise the issue, NTC violated the Act by failing to cite KRS 61.872(5) upon which, presumably, it relied for the delay between the initial response and the supplement. Otherwise, NTC timely responded and complied with the requirements of KRS 197.025(7).
NTC staff did not violate the Open Records Act regarding deleting email messages because they followed the applicable records retention schedule. Ms. Barker notes that email messages are listed in the General Schedule for Electronic and Related Records in Series E0059. That schedule states for electronic messages that the public agency should "[i]dentify what type of record the message is and delete after the expiration of the retention period authorized in an approved records retention schedule." Ms. Barker argues that the relevant records retention schedule is the General Records Retention Schedule for State Agencies , Series M0002.
We find that Series M0002 is the appropriate record retention schedule, and NTC followed the schedule correctly. Series M0002 relates to routine correspondences, and it describes such correspondences as follows:
Routine correspondence is incoming and outgoing correspondence that may consist of: letters, notes, postcards, memoranda, announcements, or information commonly found in the body of e-mail messages and/or any attachments. Electronic mail messages also contain transactional information (sender, recipient, date, subject, etc.) in the header of the message and in the properties field of the electronic file. Routine correspondence does not include: non-business related messages, spam and junk mail."
The emails at issue in this appeal fit the description of routine correspondences subject to Series M0002. The disposition instruction for the Series states, "[r]etain no longer than two (2) years," and this Office has found that the routine correspondence subject to this policy "may be discarded when no longer needed. " See 18-ORD-007; 17-ORD-048; 15-ORD-144; 14-ORD-074. Since the disputed email messages are routine correspondence, the record on appeal does not support Appellant's claim that the disputed emails were prematurely, or otherwise improperly, destroyed. NTC staff did not violate the Act when they discarded email messages deemed "no longer needed. "
It follows that NTC did not violate the Act when it failed to produce the email messages that were discarded. A public agency cannot produce nonexistent records for inspection or copying, nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. However, in order to satisfy the burden of proof imposed by KRS 61.880(2)(c), 5 public agencies must offer some explanation for the nonexistence of the records and the authority under which the records were destroyed if appropriate. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011). NTC provided Appellant an explanation, stating that the email messages were "discarded due to adequately free up space. " Therefore, we find that NTC did not violate the Open Records Act when it did not provide access to the discarded email messages.
NTC complied with the Open Records Act when it redacted email messages that did not specifically reference Appellant. In the response to the appeal, Ms. Barker explained that the redactions were made to log entries and messages that did not specifically reference Appellant by name. She explained that NTC made those redactions per KRS 61.878(1)(l) 6 and KRS 197.025(2). 7 Ms. Barker cited numerous decisions to support the argument.
Although public agencies are normally required to make any non-exempt records that may contain the information sought available for inspection, KRS 197.025(2) expressly authorizes correctional facilities to deny a request by any inmate "unless the records contain a specific reference to that individual." Because the redacted portions of the email messages do not contain a specific reference to Appellant, he is not entitled to inspect those records, notwithstanding any underlying concerns that he may have. Accordingly, NTC's redaction and denial of the relevant email messages was justified under KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 99-ORD-161, p. 2; 17-ORD-186; 17-ORD-173.
With regard to Appellant's allegations that NTC employees have generally committed fraud and criminal acts, and his requests that this Office initiate an investigation, this Office declines to address those issues. Such issues are outside of the scope of our review and cannot be considered in the context of an open records appeal. On March 21, 2018, this Office received additional correspondence from Appellant in which he notes that additional email messages were found and disclosed after NTC responded to his appeal. NTC acknowledged that fact in response to the appeal and listed the additional email messages for purposes of this review. Appellant perceived this to be an irregularity and requested that this Office conduct an investigation into the matter. Under KRS 61.880(2)(a), this Office has jurisdiction to review open records appeals and issue a written decision stating whether the agency violated provisions of the Open Records Act, but not to initiate investigations. Therefore, we must decline Appellants requests to initiate investigations.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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 proceeding.
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