Q: I understand that e-mails on a “state-owned” computer qualify as an open record. But what if I believe that the e-mails that I have requested have been deleted? What recourse do I have against a public agency?

A: This is a very interesting and cutting edge issue.

As you know, the Kentucky Open Records Act 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.”

E-mails are public records and therefore subject to public view unless they qualify for an exemption.

But, how are e-mails managed and maintained by public agencies? Thousands of e-mails flow in and out of public agencies every day.

More and more public business is being conducted via email, which is only going to increase in the coming years. Are these e-mails being maintained for public disclosure? Or do public officials routinely delete e-mails concerning public business which if requested, we would be denied access to? Is there any oversight?

The State Archives controls the retention and destruction of public records.

According to the State Archives and Records Act, a public agency is required to manage and maintain public records according to schedules (that are separate schedules for each public agency available on its website).

The Kentucky Attorney General has recognized that public agencies have an obligation to establish a maintenance and retrieval scheme for their public records and that failure to do so violates the Act: “Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act.” 94-ORD-121. Consequently, the Attorney General applies “a higher standard of review relative to denials based on the nonexistence” or destruction of requested records. 94-ORD-142.

Under this standard, “the loss or destruction of a public record creates a rebuttable presumption of records mismanagement.” 95-ORD-96.

But, are e-mails part of each agency’s requirement to manage and maintain public records? The answer is: THEY SHOULD BE, BUT WE HAVE REASON TO BELIEVE E-mails ARE NOT PROPERLY MANAGED AND MAINTAINED BY SOME PUBLIC AGENCIES. The problem is what is the remedy and what can we do to effect a change in the system to require public agencies to retain e-mails?

Other states are dealing with this issue. For example, the Ohio Supreme Court recently heard oral arguments on the issue of whether a deleted government e-mail file qualifies as a public document subject to state open records?requests. A newspaper requested from county commissioners all e-mails sent, received or deleted during an 18-month period.

The newspaper was told that these e-mails had been deleted. The paper then sued to have the county hire a forensic expert who would recover any e-mails deleted?from government computers during the time period. ?

In Hawaii, government e-mail is required to be kept for the same time period as other records that are not in e-mail form. But when The Associated Press?tried to access e-mail related to the misconduct investigation of? the former governor’s chief of staff, the governor’s office denied the request on the basis that the e-mail had been deleted. The AP was left with no recourse.

North Carolina and Missouri are involved in similar fights.

We are exploring what other states are doing about this issue, and whether this is something we need to pursue on a legislative level.

We will keep you informed, but would like to hear from you if you have had any issues concerning the deletion of e-mails--if so, please email me at ashley.pack@dinslaw.com.