Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Fiscal Court ("Fiscal Court") violated the Open Records Act in not performing an adequate search for records, and in failing to maintain access to emails using county government email addresses which were maintained by a private contractor. We find that the Fiscal Court violated the Open Records Act in failing to perform an adequate search, and subverted the intent of the Open Records Act in failing to maintain access to emails using county government email addresses which were maintained by a private contractor.
Lawrence Trageser submitted an open records request to the Spencer County Fiscal Court on Jan. 29, 2016. Trageser requested:
Any and all records reflecting the communications of magistrates Jim Williams & Brian Bayers.
Specifically, Petitioner is seeking all e-mail communications in totality, that have been created, sent and received by Williams and Bayers using their county issued government e-mail address. The time frame sought is between 12:00 a.m. January 1, 2015 through 11:59 p.m. January 28, 2016.
Petitioner seeks inspection of sought records.
The Fiscal Court responded to the request on Jan. 29, 2016, stating that "due to the county having to contact an IT person to obtain the emails and I will then have to review the emails to determine if any exemptions apply, I will have a response to your open records request by March 7, 2016." On Mar. 22, 2016, the Fiscal Court provided its full response to the request:
. . . The website is run by a private entity and . . . the County Judge's office does not have custody or control over any of the individual email addresses or the emails on this website. The County has a contract for services with the entity running the website. . . .
The Open Records Act only applies to records, which are in existence, and in the possession or control of a public agency. . . .
. . . The records in dispute are held by a private company . . . . Because a private contractor cannot properly be characterized as a "public agency" within the meaning of KRS 61.870(1), it necessarily follows that such records are not "public records" within the meaning of KRS 61.870(2) as they are not "prepared, owned, used, in the possession of or retained by a public agency. "
. . . I was unable to obtain and review the information requested, primarily because it was a private entity unwilling to produce and retrieve same, as it was not under a legal obligation in the contract with the fiscal court to do so.
Trageser initiated this appeal on May 17, 2016, arguing that "KRS 61.872 (1), (2), (3) & (5) have been violated." The Fiscal Court responded to the appeal on May 31, 2016, reiterating its response to Trageser's request. Trageser replied to the Fiscal Court's response on June 8, 2016, arguing that "these e-mail addresses should only be used for county business and not personal business, thus potentially subject to open records requests," and that "'lack of actual possession is not a sufficient basis for denying access to records' if the records being sought are being held 'at the instance of and as custodian on the [public agency's behalf,'" quoting 16-ORD-019. 1
KRS 61.870(2) provides that "'public record' means all . . . documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " Emails using county government email addresses are presumably by their very nature prepared and used by a public agency. In this case, the Fiscal Court claims that it uses a private contractor to manage county email addresses, and the private contractor refuses to search for and retrieve the emails; therefore the Fiscal Court claims that the emails are not in its possession. First, this argument strains credulity; presumably the magistrates themselves are able to access their own emails. A public agency "is required to make a search that can reasonably be expected to produce responsive records," including "persons who are likely to have responsive documents." 14-ORD-181. In not having the magistrates search their own emails, the Fiscal Court did not perform an adequate search, and violated the Open Records Act.
More generally, "it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record. " 14-ORD-192. 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 failure to maintain its records violated records retention schedules and warranted referral to the Department for Libraries and Archives. See also 15-ORD-011.
Similarly, in this case, we find that the Fiscal Court's failure to maintain access to its own records violates records retention schedules and warrants referral to the Department for Libraries and Archives. The email addresses were created by the public agency with public funds for the use of the public agency. The Fiscal Court cannot strip emails from county email addresses of their character as public records simply by hiring an independent contractor to maintain them. "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. " 11-ORD-025. The Fiscal Court failed to do so, and accordingly, "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." 15-ORD-011. The Fiscal Court should either require the magistrates to produce the emails, require the contractor to search for and provide the emails, 2 or terminate the contract with the contractor and establish a system of recordkeeping that complies with the Open Records Act.
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.
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