Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Cabinet for Health and Family Services ("CHFS") violated the Open Records Act by attempting to impose a $ 75.00 per hour fee on the cost of retrieval, and in deleting the emails of a retired employee twenty-eight days after the date of retirement. We find that CHFS subverted the intent of the Open Records Act short of denial of inspection by attempting to impose a $ 75.00 per hour fee on the cost of retrieval. The record is insufficient to support a finding that CHFS violated the Open Records Act in deleting a retired employee's emails twenty-eight days after the date of retirement.
Kelly Wiley ("Wiley") submitted an Open Records Request by email to CHFS on June 8, 2015, requesting seven categories of reports and correspondence pertaining to child social services in Boone and Gallatin counties. 1 In a series of subsequent emails, Wiley clarified her requests and added additional requests. Specifically, Wiley clarified on June 14, 2015, "as to request 6(a) and (b)," she was requesting "communications between the Ombudsman's Office and Commissioner Theresa James, Bruce Lidner or his temporary replacement (Lesa?) Paula Brun, Kelly Pompillo, Kathy Sansbury, Patty Murphy or Pam VonHandorf." On June 15, 2015, CHFS responded, "Ms. Sansbury and Ms. Brun have retired. Therefore, it will take a request through the Office of Information Technology to retrieve those files. Please tell me if you want me to make this request, at a cost of $ 75.00 per hour for searching." After further emails, 2 CHFS stated in an email dated June 29, 2015 that it had "checked on your request for an e-mail snapshot of Cathy Sansbury's email files. COT stated that an employee's emails are deleted 28 days after he or she leaves CHFS. Ms. Sansbury retired and left CHFS on 02/01/2015. Therefore, her records were deleted on or about 03/01/2015."
Wiley initiated this appeal on June 29, 2015. Wiley stated:
On June 8, 10, 14, and 24 I requested all emails from a former supervisor, Cathy Sansbury, in the Boone County Regional Office regarding my clients: social workers Tim Williams and Karey Cooper. . . .
Recently, the Louisville Courier published an article regarding nearly 100 cases of child abuse and neglect that were never acted upon in this office. When my clients reported this to the Ombudsman's Office, the Governor and the Cabinet's Commissioner, they were retaliated against. . . .
The first-line individual who was responsible for assigning these reports of abuse and neglect was Cathy Sansbury. I have requested her emails .
I received a response . . . stating that that [sic] since she was retired, the request would have to go through OIT at $ 75/hour for an estimated 89 hours. Then today, I received a response stating that emails are deleted 30 days after a person leaves employment with the Cabinet and therefore, Ms. Sanbury's [sic] emails have been deleted. In my reading of the records retention schedule, this is incorrect . . . .
CHFS responded to the appeal on July 13, 2015. CHFS stated:
On June 15, 2015, I informed Ms. Wiley that Ms. Sansbury had retired from the Cabinet for Health and Family Services. I also advised Ms. Wiley that the Commonwealth Office of Technology ("COT") could access Ms. Sansbury's records and produce them, at a cost of $ 75.00 per hour.
I later learned that my statement about the COT search was untrue for two reasons. First, on June 29, 2015, I learned that a Cabinet employee's emails are deleted 28 days after she leaves the Cabinet. Since Ms. Sansbury retired on February 1, 2015, her e-mails were deleted on or about March 1, 2015, and could not be retrieved by COT. . . . Second, I learned that a COT search is free for an Open Records requestor, outside of the charge of 10 cents per page for any produced documents. . . .
. . . On July 1, 2015, I learned that DCBS had not retained a copy of Ms. Sansbury's e-mails or PST files. Therefore, the Cabinet has no records that it could produce regarding Ms. Sansbury's e-mails about Thomas Smith, Kerry Cooper, and/or their complaints regarding their employment.
On July 10, 2015, the Cabinet produced 388 pages of e-mails regarding these topics from the other requested parties. Within that production, I saw no evidence that these parties corresponded with Ms. Sansbury about Mr. Smith or Ms. Cooper, outside of routine business correspondence.
It is assumed, therefore, that any destroyed e-mails were in the nature of routine DCBS-related correspondence. Pursuant to the General Schedule for State Agencies, such correspondence should be retained for no longer than two years, but may be destroyed at any point during that time period. Therefore, all evidence indicates that any of Ms. Sansbury's e-mails that related to Mr. Smith, Ms. Cooper, and/or their complaints to the Ombudsman (if such e-mails existed) were properly destroyed.
In summary, the Cabinet cannot produce the requested information, because it was destroyed after Ms. Sansbury retired on February 1, 2015.
Regarding CHFS' statement that retrieval of the records would cost $ 75.00 per hour, KRS 61.874(3) provides that "the public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." KRS 61.880(4) provides that "if a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, . . . the complaint shall be subject to the same adjudicatory process as if the record had been denied." In 10-ORD-084, a requester sought emails from the City of Covington. The city stated that it "would have to use its independent IT contractor to search for and retrieve responsive e-mails, if any, for former employees and archived e-mails, " and told the requester that "you must pay up-front for the cost of the IT contractor's time that would be billed to the City." We held that KRS 61.874(3) "permits public agencies to prescribe costs of reproduction, not costs of retrieval, " and that the city "subverted the intent of the Open Records Act, short of a denial of inspection, by attempting to charge the applicant for the cost of an independent contractor to retrieve archived records." See also 07-ORD-130 ("The City is not entitled to recover staff costs associated with honoring Ms. MacWilliams' request; $ 537.37 is an excessive fee, the imposition of which constitutes a subversion of the intent of the Open Records Act. "); 05-ORD-116 ("The Personnel Cabinet subverted the intent of the Open Records Act, short of denial of inspection, by attempting to impose a $ 210 programming charge on Ms. York."). CHFS improperly attempted to impose the excessive fee of $ 75.00 per hour for the cost of retrieval rather than the cost of reproduction, which CHFS acknowledges in its appeal. In attempting to impose an excessive fee for the retrieval of documents rather than charging the cost of reproduction, CHFS subverted the intent of the Open Records Act short of denial of inspection.
Regarding whether CHFS properly deleted a former employee's emails twenty-eight days after the employee's retirement, there is no separate records retention schedule that specifically applies to the documents of an employee who leaves or retires, or governs destruction of such documents specifically. The procedural guide for destruction of public records generally specifies that:
Before records destruction can occur, the following must take place:
. the records have been authorized for destruction in accordance with the requirements of an approved Records Retention Schedule;
. there is no active or pending litigation, audit, Open Records request, or appeal of an Open Records decision, that involves the records in question;
. the records are no longer required under any other legislation, and all statutory and regulatory requirements are fulfilled;
. the records are of no further administrative or business use to the agency;
. a Records Destruction Certificate (PRD Form 50) has been completed and signed by the appropriate authority; and
. the records have been destroyed in an appropriate manner. 3
Although "it is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed, " 07-ORD-009, the emails were destroyed on or about Mar. 1, 2015, and Wiley's request was not initiated until June 8, 2015. The record before us does not indicate that there was any active litigation at the time of the destruction of the records, or that CHFS did not comply with records destruction requirements.
CHFS argues that "it is assumed, therefore, that any destroyed e-mails were in the nature of routine DCBS-related correspondence. " The General Schedule for State Agencies classifies routine correspondence as Series M0002:
Routine Correspondence (M0002) is correspondence that is not crucial to the preservation of the administrative history of the agency. It is generally of a non-policy nature and without permanent value. It deals only with the general agency operations, operations which are better documented by other records maintained by the agency. . . .
. . . .
Routine correspondence should be retained no longer than two years. Because the retention period of Routine Correspondence may vary, agencies are encouraged to set a fixed period for its retention and see that staff retains it for that length of time. 4
Routine correspondence should be retained for no longer than two years, and may be retained for less than two years. "'Discretion rests with the agency and user to determine whether general [routine] correspondence need be retained.' In other words, '[n]o requirement exists for the permanent archiving of these records.'" 10-ORD-117 (citation omitted); see also 09-ORD-195. While an agency cannot retroactively declare all deleted records to be routine correspondence, if CHFS properly complied with records destruction procedures, it retained all documents that it was required to retain, and there is no evidence in the record before us to suggest otherwise. "A public agency cannot afford a requester access to a record that it does not have or which does not exist." 14-ORD-027. Accordingly, the record before us is insufficient to sustain a finding that CHFS violated the Open Records Act in deleting the emails of a retired employee twenty-eight days after the date of retirement.
In summary, CHFS subverted the intent of the Open Records Act short of denial of inspection in attempting to impose a $ 75.00 per hour charge on the cost of retrieval, but did not violate the Open Records Act in deleting the emails of a retired employee twenty-eight days after the date of retirement.
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.
Footnotes
Footnotes
1 Wiley requested:
1. Current case load/management reports for Boone and Gallatin counties from January to June 2015.
2. A staff listing for the two counties for the same period . . . .
3. Paula Brun's resignation letter and any documents pertaining to her promotion or resignation or performance from Jan to current 2015.
4. All management and Regional reports related to performance of the Regions including the N. Bluegrass region from Jan to current 2015.
5. All personnel records of Lisa Prewitt - including any PIP's or verbal warnings - from the last year of July 1 to the current date.
6. Any emails related to the Ombudsman reports or complaints or emails of concerns of Tim Williams or Karey Cooper or any other DCBS employee for the period of January to current 2015.
7. Any emails, reports or documents related to the alleged, suspected or actual legal representation of Tim Williams or Karey Cooper.
2 An email from CHFS dated June 29, 2015 stated, "please find a courtesy electronic copy of the letter that will be mailed with the document production today."
3 KY. DEP'T FOR LIBRARIES AND ARCHIVES, DESTRUCTION OF PUBLIC RECORDS: A PROCEDURAL GUIDE 5 (Sept. 2007), http://kdla.ky.gov/records/Documents/Destruction%20Guidelines.pdf.
4 KY. DEP'T OF LIBRARIES AND ARCHIVES, GENERAL SCHEDULE FOR STATE AGENCIES (Mar. 4, 2014), http://kdla.ky.gov/records/recretentionschedules/Documents/State%20Reco….