Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision The question presented in this appeal is whether KSP violated the Open Records Act in denying inmate Christopher Hawkins' August 28, 2018, request for emails between Captain Tim Hawkins and Catherine Weicht, dated August 22, 2018, that he had previously viewed. In a timely written response per KRS 197.025(7), Catherine Weicht, Open Records Coordinator, explained to Mr. Hawkins (Appellant) that the request was denied as the emails no longer existed. Ms. Weicht further explained, that "[d]ue to the volume of emails received and sent at KSP, we do not keep them when the subject is closed." Appellant timely filed his appeal claiming that the email was improperly destroyed.
Upon receiving notification of the appeal from this office, attorney Julie Foster, Justice and Public Safety Cabinet, responded on behalf of KSP. Ms. Foster stated that emails are listed in the General Schedule for Electronic and Related Records in Series E0059, and that the disposition instruction in that series instructs, "Identify what type of record the message is and delete after the expiration of the retention period authorized in an approved records retention schedule." The General Schedule for State Agencies provides Series M0002 for routine correspondence/ messages, and the disposition instruction in that series states, "Retain no longer than two (2) years." Ms. Foster explained that these emails were determined to be in the nature of routine correspondence and that "[t]he prior open records request was closed once [Appellant] viewed the emails. Ms. Weicht then followed her ordinary practice of deleting those emails. "
As this office has noted in prior decisions, "routine correspondence" (also known as "general correspondence" ) is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency, . . . which are better documented by other records maintained by the agency." E.g. , 12-ORD-148, 15-ORD-166, and 17-ORD-057. ( See Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0002.) It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626. It has an indefinite retention period, but may be retained no longer than two years. Discretion rests with the agency and user to determine whether routine correspondence need be retained. No requirement exists for the permanent archiving of these records. 00-ORD-132. There is no requirement under the General Schedule for an agency to retain routine correspondence once its purpose has been served, and KSP had the discretion to discard the emails when they were not needed. As the retention schedule for routine correspondence gives KSP discretion to determine how long such correspondence is retained, KSP cannot be faulted for not retaining the emails after Appellant viewed them.
KSP ultimately explained that the requested emails were properly destroyed in the normal course of business pursuant to the applicable records retention schedule, a review of which confirms the propriety of such action by KSP and validates the agency's position that no such record currently exists. See 12-ORD-148. When, as in this case, a public agency has denied that a record exists and credibly explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9. The record on appeal reflects KSP made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested," 1 thus KSP cannot be said to have violated the Act in denying a request for a nonexistent record(s). 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. Accordingly, we find no violation of 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In assessing the adequacy of a public agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7 (citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977)).