Opinion
Opinion By: Jack Conway,Attorney General;Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure ("KBML") violated the Open Records Act by denying a request made by attorney Frank Miller, Jr. for copies of records relating to the medical practice of his client, Dr. Philip L. Roberts. We find that KBML did not expressly violate the Open Records Act in failing to provide emails it no longer had access to, but subverted the intent of the Open Records Act in failing to store and maintain access to public records. KBML also violated the Open Records Act in failing to conduct reasonable searches for responsive documents, and in denying properly formed requests as overbroad and as not consistent with its own internal categorization. KBML did not violate the Open Records Act in not providing documents which it did not have.
Background
Mr. Miller submitted an open records request to KBML on June 20, 2014. Mr. Miller asked for copies of the following:
1) Amy Lovejoy's Open Records Request to KBML concerning licensure documents for my client, Philip L. Roberts, M.D., which was dated on or about September 21, 2012;
2) Documents KBML produced to Ms. Lovejoy or her firm in response to that request;
3) Emails sent by Dr. Roberts' former attorney, Lisa English Hinkle, to KBML investigator, Doug Wilson, dated on or about August 10, 2012 and August 13, 2012;
4) Emails or correspondence sent by Doug Wilson in response to Ms. Hinkle's emails;
5) Gina Riddell's Open Records Request to KBML, dated on or about October 30, 2012;
6) Documents produced to Ms. Riddell or her firm in response to that request;
7) Emails sent by Ms. Hinkle to KBML legal counsel, dated on or about November 1, 2012, regarding issues related to hormone treatment, and any responsive emails or correspondence prepared by KBML counsel;
8) Emails sent by Ms. Hinkle to KBML legal counsel, dated on or about November 5, 2012, and any responsive emails or correspondence prepared by KBML counsel;
9) Any emails sent by Ms. Hinkle to KBML on or about December 28, 2012;
10) Any document prepared by KBML investigator Doug Wilson on the subject matter of telephone calls from Ms. Hinkle, including, but not limited to, a conversation that occurred on or about December 28, 2012;
11) Correspondence from Ms. Hinkle to KBML dated on or about January 30, 2013.
12) Any emails or correspondence the KBML has received from Ms. Hinkle, or sent to Ms. Hinkle, concerning Dr. Roberts dated subsequent to January 30, 2013.
On June 25, 2014, KBML responded to the request, providing no records. KBML divided the request into three categories, each of which was given a different reason for denial:
A request shall specifically describe the record(s) requested. Portions of your request are denied because it is overly broad and/or the requested information is not maintained in searchable format as requested. I cannot identify any records that would be responsive to your request for the following items you requested ? [items 3, 4, 7, 8, 9, 10, and 11]
The Kentucky Board of Medical Licensure has previously provided all of certain portions of the requested information in the course of the proceedings in Case Number 1484 or in response to your previous Open Records Request(s). The requests below are denied as no additional documents have been found in response to your requests ? [item 12]
A request shall be denied if the Custodian cannot identify the record(s) from the request. The following portions of your request are denied because I cannot identify the record(s) for the following requests ? [items 1, 2, 5, and 6]
Mr. Miller initiated this appeal on July 24, 2014. Regarding KBML's claims that his requests were overbroad and not maintained in a searchable format, Mr. Miller stated that "I provided dates certain and the names of the documents' senders and recipients? Mine was ? a request for 'specific records during a specific period of time. ? If KBML maintains even a rudimentary filing system, these items are identifiable and can be found." Regarding KBML's claim that some of the documents had already been provided, Mr. Miller stated that "none of the items requested ? have been provided to the undersigned in the course of the adversary proceeding. Aside from getting those facts wrong ? document production as part of administrative proceedings is completely separate from an agency's duties under the ORA." Regarding KBML's contention that it could not identify certain records, Mr. Miller expressed disbelief that "an agency's Open Records Custodian can locate neither two-year old ORA requests (if any) made by identified persons on specific dates concerning an identified agency licensee, nor the agency's response thereto (if any) ? If such records do not exist, the Custodian should plainly state that it is the case."
KBML responded to the appeal on Aug. 7, 2014. KBML explained that:
KBML does not have an email server that retains emails. Unless an email is kept by a specific person, with an active account, in their email account ? the email will not be able to be retrieved by KBML staff. This means that any emails sent or received by previous general counsel, Lloyd Vest, are not searchable by the KBML. This further means that any emails sent or received by current general counsel will only be available to KBML if the employee has not deleted it. Not surprisingly, the older the email, the less likely it is in existence. If the email has been printed and kept in the case file, it may be available. Bertha Wallen did search the case files for the requested emails and could not locate the emails, which is why she stated in her response dated June 25, 2014: "I cannot identify any records that would be responsive to your request ..."
Regarding specific requests, KBML stated for each of the items requested:
3. Emails sent by Dr. Robert's former attorney, Lisa English Hinkle, to KBML investigator, Doug Wilson, dated on or about August 10, 2012 and August 13, 2012;
a. It was the KBML's understanding that Lisa English Hinkle was counsel for Abundant Living Clinic, not Dr. Roberts specifically. Doug Wilson is a retired investigator with the KBML. During his employment with KBML, Doug Wilson had an independent and private email address which was not a part of the Board's server. Therefore, this information is not maintained in a searchable format.
4. Emails or correspondence sent by Doug Wilson in response to Ms. Hinkle's emails;
a. This is not in a searchable format for the reasons explained above.
7. Emails sent by Ms. Hinkle to KBML legal counsel, dated on or about November 1, 2012, regarding issues related to hormone treatment, and any responsive emails or correspondence prepared by KBML counsel:
a. A search of current counsel's email reveals that no such emails exist.
8. Emails sent by Ms. Hinkle to KBML legal counsel, dated on or about November 5, 2012, and any responsive emails or correspondence prepared by KBML counsel;
a. A search of current counsel's email account reveals that no such emails exist.
9. Any emails sent by Ms. Hinkle to KBML on or about December 28, 2012;
a. A search of current counsel's email account reveals that no such emails exist.
10. Any document prepared by KBML investigator Doug Wilson on the subject matter of telephone calls from Ms. Hinkle, including, but not limited to, a conversation that occurred on or about December 28, 2012;
a. This document is overbroad in that it requests "any document prepared" as opposed to a document "sent or delivered." Documents such as Doug Wilson's notes will not be in a searchable format as the KBML does not maintain such records.
11. Correspondence from Ms. Hinkle to KBML dated on or about January 30, 2013;
a. This request is overbroad because it does not specify which physician's licensee's case it refers to. Ms. Hinkle represents numerous doctors before the KBML. The KBML maintains records according to physician licensee, not by whom correspondence is from. Further, the request is overbroad in that it requests "correspondence, " which is unlimited in possibility (email, letter, voicemail, online submission, etc.).
12. Any emails or correspondence the KBML has received from Ms. Hinkle, or sent to Ms. Hinkle, concerning Dr. Roberts dated subsequent to January 30, 2013;
a. This request is not in a searchable format. The KBML maintains records according to name of physician licensee, not topic. Again, "correspondence" is overly broad."
Regarding items 1, 2, 5, and 6 of the request, KBML stated that "in her response dated June 25, 2014, Bertha Wallen stated that the requests were denied because 'I cannot identify the record(s).' This is simply another way of saying that the records do not exist. Ms. Wallen did search for the records and they do not exist."
Analysis
KBML denies Mr. Miller's requests on three general grounds: 1) responsive records are not maintained by KBML in a searchable format; 2) the requests are overbroad; and 3) the requested records do not exist.
I. Maintenance of Records
KBML begins its response by pointing out that "the KBML does not have an email server that retains emails. Unless an email is kept by a specific person, with an active account, in their email account ? the email will not be able to be retrieved." Specifically, regarding item 3 requesting "emails sent by ? Lisa English Hinkle, to KBML Investigator, Doug Wilson," KBML states that "during his employment with KBML, Doug Wilson had an independent and private email address which was not a part of the board's server. " KBML objects to items 4 and 10, also requesting documents involving Doug Wilson, on the same grounds. KBML indicates that it does not maintain a server to store emails, resulting in the inaccessibility of any email that is not stored in an active account, and that it allowed an investigator to use his private email address which is not searchable by KBML in his employment with KBML.
In 09-ORD-020, a city had contracted with a server provider to store its emails, and on the expiration of that contract, the city no longer had access to the emails from the period of the contract. We held that "we can find no violation of the Open Records Act itself. A public agency cannot afford a requester access to a record that it does not have or that does not exist." Id . However, we further found that:
The City's assertion that the majority of its last two (2) years' worth of e-mails is no longer in its possession and control raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. A public agency cannot, by means of a contract with a private company, deprive records of their public character. According to the Local Government General Records Retention Schedule ? general correspondence (including electronic mail) is to be retained by the local government for two (2) years. Since the City has apparently failed to maintain its access to these records in a manner that would allow compliance with the Schedule, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
Although we could find no direct violation of the Open Records Act itself, we did note that the city's abject failure to maintain its records violated records retention schedules and warranted referral to the Department for Libraries and Archives.
As in 09-ORD-020, KBML has neglected its duty to maintain its public records in not having an email server or other means of storing its emails, and in allowing an employee to rely solely on his private email account to conduct public business. The legislature's express intent in the Open Records Act is to ensure that "public agencies are required to manage and maintain their records according to the requirements of these statutes." KRS 61.8715. KBML "subverted the intent of the Act within the meaning of KRS 61.880(4) by failing to establish an effective system for management and retention of its records." 14-ORD-100. KBML has systematically failed in its duty to properly maintain its public records, and accordingly we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
KBML also objects to items 11 and 12 on the grounds that it "maintains records according to name of physician licensee, not topic." There is no requirement in the Open Records Act that a requester must frame the request in the terms that the records custodian uses to categorize it; a requester typically has no knowledge of how an agency stores records. An agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Commonwealth v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). KBML cannot refuse an otherwise valid records request solely on failure to format the request based on KBML's internal categorization. In denying properly formatted requests for records based on their failure to comply with KBML's own internal categorization, KBML violated the Open Records Act.
II. Breadth of Requests
KBML maintains that the requests in items 10, 11, and 12 are overbroad. KRS 61.870(2) defines a "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " "This definition is inclusive, extending to all 'documentation regardless of physical form or characteristics,' and the medium in which they are stored, electronic or hard copy." 00-ORD-206. "A request for documents need only be adequate for a reasonable person to ascertain the nature and scope of the open records request." 14-ORD-002; Chestnut, 250 S.W.3d at 661.
KBML argues that the request in item 10 for "any document prepared by KBML investigator Doug Wilson on the subject matter of telephone calls from Ms. Hinkle" is "overbroad in that it requests 'any document prepared' as opposed to a document 'sent or delivered.'" KBML does not cite any authorities as to why the distinction between "prepared" and "sent or delivered" is a cognizable distinction under the Open Records Act. If KBML intended to invoke the preliminary documents exceptions in KRS 61.878(1)(i) and (j), it should have done do so expressly. KBML further objects to items 11 and 12 on the grounds that "the request is overbroad in that it requests 'correspondence' , which is unlimited in possibility (email, letter, voicemail, online submission, etc.)." However, KRS 61.870(2) expressly includes all "documentation regardless of physical form or characteristics." Mr. Miller adequately specified with particularity the documents requested, and KBML cites no valid legal reason that the requests are overbroad under the Open Records Act. In denying properly specific requests on the grounds that they were overbroad, KBML violated the Open Records Act.
III. Existence of Documents and Reasonable Searches
Regarding items 1, 2, 5, and 6, documents pertaining to prior open records requests by Amy Lovejoy and Gina Riddell in September and October of 2012, KBML has subsequently clarified that it has searched for the records and they do not exist. "A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. "A complainant may overcome an agency's denial that records exist, but 'must make a prima facie showing that such records do exist.'" 14-ORD-097; Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005). KBML has stated that it has searched for the records and has not found any, and Mr. Miller has not provided any prior requests or made a prima facie showing that KBML created or maintained such documents. Accordingly, in denying Mr. Miller's requests for documents relating to open records requests to KBML in September and October of 2012 on the grounds that it does not have such documents, KBML did not violate the Open Records Act.
In response to items 7, 8, and 9, emails sent by Ms. Hinkel to KBML legal counsel and KBML in November and December of 2012, KBML stated that "a search of current counsel's email account reveals that no such emails exist." "An agency is not required to conduct an exhaustive search or a fishing expedition, but is required to make a search that can reasonably be expected to produce responsive records." 14-ORD-181. A search of only current counsel's email is not by itself a sufficient search unless no other source is reasonably likely to produce responsive records. Even assuming that current counsel has no access to prior counsel's email as discussed above, "because email is easily propagated, it was incumbent ? to search the mail server to determine if the message was forwarded to ? employees or officials, as well as the 'inboxes' of employees or officials who might reasonably have been expected to receive it. Only a search of this scope could conclusively establish the existence or nonexistence of the responsive email ...." 06-ORD-022. KBML has made no indication that it has conducted any reasonable search for responsive emails other than searching through current counsel's email. In failing to make an adequate search for responsive emails, KBML violated the Open Records Act.
Conclusion
In conclusion, although KBML did not violate the Open Records Act with regard to requested items 3, 4, and 10, emails involving retired investigator Doug Wilson, in failing to maintain access to such documents, it subverted the intent of the Open Records Act by failing to follow minimally adequate records retention procedures. In denying requested items 10, 11, and 12, documents involving communications with Lisa English Hinkle, on the grounds that the requests were overbroad, KBML violated the Open Records Act. In failing to conduct a reasonable search for requested items 7, 8, and 9, emails sent by Lisa English Hinkle, KBML violated the Open Records Act. In denying requested items 1, 2, 5, and 6, documents pertaining to prior open records requests by Amy Lovejoy and Gina Riddell in September and October of 2012, KBML did not violate the Open Records Act. We further refer the matter to the Department for Libraries and Archives for such measures as it deems appropriate.
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.