Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of Montgomery County Sheriff violated the Open Records Act in the disposition of Department of Public Advocacy investigator Joshua Powell's May 12, 2017, request for e-mails to and from Sheriff Fred Shortridge, Mark Collier, and Ralph Charles between November 24, 2015, and May 12, 2017, "in regards to Nickie Miller, Natasha Martin, Cody Hall or the death of Paul Brewer [including] instances where Nickie Miller was detained, suspected, or questioned or a witness in a case." For the reasons that follow, we find no violation of the Act but note improper records management by the Sheriff's Office.
In its response, the Sheriff's Office stated that "no such records exist." Mr. Powell's appeal was received in this office on July 24, 2017. He attaches some e-mail communications with the Kentucky State Police which indicates that some pertinent e-mails were sent and received from the persons in question during the relevant time period. In a response to the appeal, Sheriff Shortridge states that all of the requested e-mails "had been long since deleted from our email system on our individual department computers. With that being said we cannot pull them up on our computers." He suggests that Mr. Powell should instead attempt to obtain the deleted e-mails from the Commonwealth Office of Technology (COT), which maintains the servers.
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.
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 deletion of the e-mails was on its face improper. Under the Local Governments General Records Retention Schedule, e-mails dealing "with the day-to-day, general operations of an agency" are classified as "Routine Correspondence," record series L4955. The schedule instructs: "Retain for two (2) years, then destroy."
Since all of the requested e-mails were less than two years old at the time of their destruction, and most or all of them were likely routine correspondence, we conclude that they were improperly deleted. For this reason, it was the duty of the Sheriff's Office to contact COT to attempt to recover the e-mails to the extent that backup copies may have still existed. 2 "Improper destruction of records, in our view, carries with it the duty to take all available measures to recover same." 06-ORD-022. 3 Since the Sheriff's Office attempted to shift that burden onto Mr. Powell, we find that the agency violated the Open Records Act by failing to conduct an adequate search "using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (internal quotation omitted).
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. In view of the premature deletion of e-mails by the Sheriff's Office, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency may deem 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 must 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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