Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Covington violated the Open Records Act in the disposition of Debbie Enneking's request for records dated November 18, 2013, in which she sought copies of various e-mail messages. For the reasons that follow, we find no violation of the Act but note an instance of improper records management by the City's contractor.
In her November 18 correspondence to City Solicitor Frank Warnock, Ms. Enneking requested the following:
copies of all email correspondence to and from the City Commissioners and Mayor, Tom Logan, City Engineer and Jay Faucet [ sic ], City Manager, Frank Warnock, City Solicitor, Covington Police and Fire Departments[,] containing Deb Enneking/ [ sic ] and or Debbie Enneking, and Christian's Kinder Laden as the subject, or in the email content dating from May 2006 until November 18, 2013. Emails to and from Debbie Enneking, would have been sent and received at kinderladen@fuse.net.
According to the City's response dated December 20, 2013, from Assistant City Solicitor Bryce C. Rhoades, Ms. Enneking's request was received on November 20, 2013. The record does not contain the "initial response letter" of November 21, referred to in the December 20 letter; accordingly, we cannot address the issue of whether that initial response was adequate to comply with the procedural requirements of KRS 61.880(1) and KRS 61.872(5).
The December 20 disposition, insofar as it related to the matters currently on appeal, stated as follows:
With respect to your request for email messages to and from former City employees and elected officials, the City's information technology contractor reports that these records are no longer available, primarily due to their age. Pursuant to the Kentucky Department of Libraries and Archives' Local Governments General Records Retention Schedule, routine correspondence is to be destroyed after two years.
The City provided Ms. Enneking 353 pages of responsive records at that time.
On January 31, 2014, Ms. Enneking initiated an appeal to the Attorney General, pointing out that Tom Logan was still an employee of the City of Covington at least as recently as June 13, 2013, and therefore his routine correspondence should not yet have been destroyed. She also stated:
As for the remaining withheld documents, I know of at least two other emails between myself and the Covington City Commissioners. Sherry Carran was a city commissioner at that time. She is now the Mayor of Covington. She is not a former employee and her email account should still be active. Of the 353 pages of documents responsive to my request, I did receive some that were still available to and from Sherry Carran.
In a response to this appeal dated February 13, 2014, Assistant City Solicitor Bryce C. Rhoades provides the following explanation:
[W]ith respect to the email account of former City Engineer Tom Logan, the deletion of these records was an oversight by the City. Mr. Logan transitioned to the part-time position of Director of Public Improvements/Assistant City Engineer on June 11, 2013[.] On September 10, 2013, the City's Board of Commissioners accepted Mr. Logan's resignation and Mr. Logan left City employment[.]
This office received the open records request at issue in this appeal on November 20, 2013[.] After receiving Ms. Enneking's request, I sent an email to the City's information technology contractor requesting retrieval of the relevant emails. ? The City's contractor then contacted me by phone to inform me that a number of emails were no longer available due to their age.
The contractor also informed me that Mr. Logan's account had been deleted upon the termination of his City employment. Upon further investigation, it was determined that the City had neglected to inform its IT contractor of the necessity of retaining general correspondence for two years. The City took immediate action to ensure that, from this point forward, proper backups of email accounts are maintained for a minimum two-year period.
Upon receipt of this appeal, I again contacted the City's IT contractor to confirm that Mr. Logan's email account was in fact no longer available. The contractor suggested that it may be possible to retrieve some emails from the computer used by Mr. Logan. Using this method, the City was able to retrieve a limited number of emails responsive to Ms. Enneking's request. These emails are attached? Unfortunately, no further emails were retrievable.
Finally, with respect to the "two other emails between [Ms. Enneking] and the Covington City Commissioners," the City simply cannot respond to this allegation without further information. However, the City did request that its IT contractor compile email messages from all current and former members of the Board of Commissioners during the time period of Ms. Enneking's request, with the exception of Commissioner Steve Frank, who does not maintain a City email account.
It appears that the City has provided Ms. Enneking with all the responsive e-mails its contractor has been able to retrieve. 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. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. 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. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries, since we do not have a substantial basis on which to dispute the City's representation that no further responsive e-mails can be retrieved. Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). We therefore find no violation of the Open Records Act, although the deletion of some e-mails was admittedly improper.
When e-mails are deleted in accordance with a records retention schedule, there is no violation of the law. 12-ORD-148; 02-ORD-225. 1 In this case, however, the City admits that its contractor, not having been made aware of records retention requirements, deleted at least one e-mail account prematurely with the result that some general correspondence was lost which should have been retained for two years. 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Distributed to:
Ms. Debbie EnnekingBryce C. Rhodes, Esq.
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