Request By:
Uriah Pasha
Eastern Kentucky Correctional Complex
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex violated the Open Records Act in denying Uriah Pasha's July 5, 2013, request for "[a] copy of the email from Alicia Bloyd (KSR) to Mike Sparks, Transfer Coordinator (EKCC) dated 10/25/2011, 10/26/2011, 10/27/2011, that stated [that Uriah Pasha's] maximum out date from segregation was 12/14/2015." Mr. Pasha emphasized that the requested email "is on Mike Spark's [sic] computer hard drive. " EKCC promptly denied Mr. Pasha's request, reminding him that he "submitted a similar request in January of 2011 requesting the same documentation" and advising him that "[t]he response remains the same." It remained EKCC's position that "[t]here is no public record maintained in [EKCC] responsive to [his] request for an email from/to CUAII Mike Sparks pertaining to [Mr. Pasha's] segregation out date." We find that Mr. Pasha's current request is distinguishable from his earlier request but that resolution of the issue on appeal is the same.
In his letter of appeal, Mr. Pasha characterized the requested email as a mental health document similar to his Corrections Psychiatric Treatment Unit Segregation contract, treatment plan, and discharge that were at issue in 06-ORD-109, and that required a twenty year retention after case closure under Records Series 04065 of the Corrections Records Retention Schedule . He noted that a November 17, 2011, email from Donald McKenzie, an employee at EKCC, to Alicia Bloyd referenced "[a]n email sent to Mike Sparks" stating that Mr. Pasha's "out date from segregation was 12/24/2015 . . . ." Mr. Pasha questioned why he was afforded access to Mr. McKenzie's email but not to Mr. Sparks's email, expressing the belief that "emails are forever on the computer's hard drive. " In support, he cited 11-ORD-170.
In correspondence directed to this office after Mr. Pasha initiated his appeal, EKCC amplified on its position through agency counsel. Incorporating its response to the open records appeal that resulted in 12-ORD-030, EKCC questioned his entitlement "to a different decision based on the new issues he raises in this second appeal." It was the agency's position that:
Despite inmate Pasha's assertion that the email is a mental health document, the email was in reality general correspondence (M0002) concerning the number of days required to be served in segregation and was not required to be retained beyond its usefulness to the correspondents. The series says to "[r]etain no longer than two years."
Additionally, the agency asserted that Mr. Pasha is mistaken in the belief that email is "forever recorded on the computer's hard drive, " explaining that deleted email is retained by the Commonwealth Office of Technology "for a short period of time."
Our review of 12-ORD-030 confirms EKCC's position that Mr. Pasha made a generalized request for email exchanged by Kentucky State Reformatory and named EKCC employees in October 2011 that related to his disciplinary segregation time, but our review does not confirm EKCC's position that he requested the same document in December 2011. Mr. Pasha's current request is framed with greater precision and focuses on an email from KSR's Alicia Bloyd to EKCC's Mike Sparks dated October 25, 26, and/or 27, 2011, that identified December 24, 2015, as his "maximum out date from segregation. " The issues he raises therefore merit review. Nevertheless, our analysis of the issues presented yields the same result.
The email to which Mr. Pasha requests access cannot properly be analogized to the Corrections Psychiatric Treatment Unit Segregation contract, treatment plan, and discharge at issue in 06-ORD-109. These records formally document his participation in the CPTU program and are assigned a twenty year retention because they memorialize an "essential transaction[] of the agency" and "furnish information necessary to protect the legal . . . rights. . . of persons directly affected by the agency's activities." KRS 171.640. The email at issue in the instant appeal references Mr. Pasha's release from segregation, but "deals only with the general agency operations, operations which are better documented by other records maintained by the agency." General Schedule for State Agencies , "An Explanation of Selected General Records: Correspondence. " The maximum two year retention for routine correspondence, found at M0002, is nearing its expiration, and the subject email was apparently deleted when it was no longer deemed useful. Based on the analysis in 12-ORD-030, and the observation that the recipient, Mr. Sparks, "deletes emails on a regular basis as a personal clean up practice," we again conclude that EKCC did not violate the Open Records Act in denying Mr. Pasha's request for a nonexistent record.
Our review of 11-ORD-170 does not confirm Mr. Pasha's belief that deleted email remains forever stored on a computer's hard-drive. Indeed, that decision, which deals with an inmate request for "incoming legal mail lists," makes no reference to deleted email. Nevertheless, this recurring issue was directly addressed in 12-ORD-148, a copy of which is attached and incorporated by reference. As noted at page 4 of that decision, once deleted an email can only be recovered from the state server for a period of twelve days. The email to which Mr. Pasha requested access did not exist in December 2011. It does not exist today. Contrary to Mr. Pasha's belief, the email cannot be recovered, and EKCC cannot be said to have violated the Open Records Act in failing to do so.
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.
Distributed to:
Uriah Pasha, # 092028Sonya WrightAmy V. Barker