Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Russell County School District did not demonstrate, by clear and convincing evidence, the existence of an unreasonable burden in affording Russell Springs News editors Louis and Tonya Stargel access to "email server logs from May 1, 2010, to present . . . includ[ing] the email history located on the email server for three named individuals." Accordingly, we find that the district's reliance on KRS 61.872(6) to deny the Stargels' request was misplaced and that the costs it attempted to shift to the Stargels, in lieu of denying the request, were excessive.
In their undated request, the Stargels asked to inspect "all emails from" Sherri West, a former district employee, Kathy Hammond, principal of Russell Springs Elementary School, and Kenny Pickett, Superintendent of the district. Specifically, the Stargels requested access to:
email server logs from May 1, 2010, to present. This includes the email message history located on the email server for the . . . individuals. [I]f emails can't be separated for viewing from other employees . . ., [we] request to view all of them in their entirety.
On January 10, 2011, the district denied the Stargels' open records request, explaining that the request was "not limited to emails covering a single or specific topic" and was "too broad." Additionally, the district asserted, the request covered "an expansive period of time from May 1, 2010, through the current date," and imposed an unreasonable burden within the contemplation of KRS 61.872(6).
In support, the district attached the affidavit of its chief information officer. He averred that in May, 2010, the school system "converted to a web based email system maintained by Microsoft Corporation." Continuing, the CIO stated:
The Russell County School District does not have a server nor does it maintain a server for email accounts for its employees. I have carefully reviewed the request . . . and estimate it will take at least 2 full days to review, retrieve, and print the emails in the accounts of Superintendent Pickett and Principal Hammond. Ms. West does not have an email account with [the district] nor did she ever [have an account].
He explained that he would be required to log on to Mr. Pickett's and Ms. Hammond's computers and review all emails in their "in boxes," "sent messages, " and "deleted messages" from May 1, 2010, to the present. The CIO indicated that after the emails were printed additional staff would be required to review them for protected information, requiring an additional two days. The district estimated the cost to fulfill the request at approximately $ 1,860.00 "based on six days of staff time at $ 310.00 per day, which is the daily salary per employee." Suggesting that the Russell Springs News "may qualify as a commercial business" upon which staff costs, in addition to actual costs, could be imposed, the district agreed to "take steps to properly respond to [the] request" if the Russell Springs News agreed "to reimburse the school district for the estimated personnel and staff costs involved in responding . . . ." Because the district presents insufficient evidence that the Stargels' purpose in requesting the email logs was a commercial one within the meaning of KRS 61.870(4)(a) and that their request, as framed, imposes an unreasonable burden within the meaning of KRS 61.872(6), we find its position untenable.
We believe that the Stargels' request is narrower in scope than the district suggests. Although they framed their request as a request for "all emails, " the Stargels specified that they wished to access the email server logs 1 for three individuals, only two of whom, as it happens, had email accounts, for a seven and a half month period of time. The Stargels clearly indicated that they sought the "message history located on the email server" and not the messages themselves. Presumably, review of the message history would enable the Stargels to identify particular email threads which they wished to inspect in detail and minimize the district's burden. Moreover, the Stargels expressed an interest in only those emails "from" the named employees, again narrowing the scope of their request. Without question, their request "was adequate for a reasonable person to ascertain the nature and scope" of the records sought.
Department of Corrections v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008). Under the standard announced by the Kentucky Supreme Court in Chestnut, it was not "too broad."
Because the Stargels' request is narrower than the district suggests, its estimated personnel and staff costs, and corresponding burden, should be significantly reduced. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
(Emphasis added.) In construing this provision, the Supreme Court in Chestnut made clear that a public agency resisting disclosure on the basis of KRS 61.872(6) "faces a high proof threshold since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence. '" Id. The Court recognized that "the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but concluded that neither the required "winnowing process," "a record's length, standing alone," nor the agency's "method of organizing its files," automatically rose to the level of an unreasonable burden or provided a basis for refusing "to comply with an otherwise valid open records request." Id. at 665-666. The Stargels' request is, as noted, a valid one, and the burden in producing the records for inspection considerably less onerous than the district originally anticipated.
The greatest impediment the district appears to face in the appeal before us relates not to the breadth of the request, or the necessity of discharging its duty to redact, but to the fact that neither it nor the Kentucky Department of Education "maintains the web mail system or message server logs. " Instead, it is Microsoft that maintains the system and server, under its contract with the state, and Microsoft that would be required to retrieve the disputed email server logs. We emphasize, however, that the outsourcing of this records maintenance and retrieval function does not relieve the agency of its statutory duty. Thus, in 09-ORD-020 this office declared that "[a] public agency cannot, by means of a contract with a private company, deprive records of their public character." 09-ORD-020, p. 5, accord 10-ORD-037.
In 10-ORD-084, the Attorney General criticized an agency's attempt to "place records effectively out of reach of the general public behind a technological barrier that imposes costs in excess of those permitted by KRS 61.874(3)." 10-ORD-084, p. 8. We distinguished between the cost of retrieving public records, for which costs cannot be imposed, and the "cost of reproduction" for which costs can be imposed pursuant to KRS 61.874(3). Finally, we rejected the agency's policy argument that taxpayers should not be forced to bear the cost related to retrieval of public records by an outside contractor, observing that the agency:
might rather have considered the cost to its taxpayers when it chose to retain archived e-mails in such a way that they could only be accessed by contracting for expensive outside services. The public policy of the Commonwealth of Kentucky is "that free and open examination of public records is in the public interest." KRS 61.871. The General Assembly has already determined that the cost of making public records available for inspection is justified.
10-ORD-084, p. 8. This decision is consistent with the view that a public agency contracting with a private vendor for data management services must include provision in the contract to facilitate compliance with the requirements of the Open Records Act. If, in fact, the district must rely upon Microsoft to retrieve the disputed email server logs, the cost of retrieval must be borne by the district and not by the Stargels.
The purpose for which the Stargels requested the record is relevant only in determining the costs that they must bear. The record on appeal contains no proof that the Russell Springs News is, as the district claims, a commercial business or that its purpose in requesting access to the disputed records falls within the definition found at KRS 61.870(4)(a). That statute defines "commercial purpose" as:
the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
It expressly excludes:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.
KRS 61.870(4)(b). In the absence of proof to the contrary, we assume that the Russell Springs News is a newspaper or periodical and that its intended use is noncommercial under the referenced statutes. This conclusion finds clear support in
Capitol Resources Corporation v. Department of State Police, 2007 WL 2332716 (Ky. App. 2007). 2 There, the court recognized "its own constitutional restraints and prohibitions against abridging [a free press, ]" refusing to characterize the purpose of an internet publisher of accident reports as commercial without adequate proof, and quoting liberally from
Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S. Ct. 444, 445, 80 (Ed. 660 (1936):
The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrument of publicity; and since informed public opinion is the most potent of all restraint upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern . . . . A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.
Like the court in Capitol Resources, above, we are hesitant to infringe on a free press by approving staff costs in addition to actual costs based on an unsubstantiated claim that the purpose of the Russell Springs News in requesting access to the records in dispute is a commercial one. The district is therefore restricted to the recovery of its actual costs for reproduction, if and when copies are requested, and not for retrieval and redaction in producing the email logs for inspection.
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 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 An "email server log, " as we understand it, is a record of all email exchanged. It is maintained on a server and reflects all messages sent and received, identifying the sender and recipient's addresses, time and date sent, message size, and subject..
2 Capitol Resources Corporation v. Department of State Police is an unpublished opinion rendered on August 3, 2007. Pursuant to CR 76.28(4)(c), it may be cited for consideration if there is no published opinion that adequately addresses the issue.