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Request By:

Mr. Woody Dunn
Director
Division of Licensing and Regulation
Cabinet for Human Resources
Frankfort, Kentucky 40621

Opinion

Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; GREG HOLMES, ASSISTANT ATTORNEY GENERAL

This is in response to a request for the opinion of this Office with respect to the denial by the Cabinet for Human Resources of a request for copies of:

records of any complaint filed against anyone in Owen County concerning violation of laws or regulations governing the operation of child day care facilities . . .

In its letter denying this request the Cabinet gave as grounds for its denial overbreadth and inadequate specificity.

The Cabinet's denial of the request was apparently based on KRS 61.872(5), a section of the Kentucky Open Records law which provides in pertinent part:

If the application places an unreasonable burden in producing voluminous public records . . . the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.

In OAG 88-79 we stated that employees of a public agency are not required to research and compile information to satisfy a request for public inspection where such information may be in bits and pieces among numerous other records. It appears that the Cabinet's records of complaints which are the subject matter of your request are not filed on the basis of the county of residence of the person against whom the complaints are made. Instead, such complaints are filed and maintained under the name of the facility in question.

As we noted in OAG 86-51 public agencies are not required to prepare and furnish lists which are at the time not in existence. However, the public agency is required to afford to the requesting party a reasonable opportunity to examine otherwise nonexempt material to attempt to secure the particular records he is seeking. We note in passing that the Cabinet's response fails to include a statement of the specific exemption authorizing the withholding of the records and an explanation of how the exception applies to the record withheld. This failure is violative of KRS 61.880(1), and the agency should take steps to comply with this statutory provision in future open records responses.

It is the opinion of this Office that although the Cabinet for Human Resources properly declined to provide information which is not consistent with its method of filing and maintaining records, the Cabinet must give the person making the request a reasonable opportunity to inspect nonexempt records pertaining to designated facilities to enable him to attempt to obtain the information he has requested.

LLM Summary
The decision addresses a denial by the Cabinet for Human Resources of a request for copies of records concerning complaints about child day care facilities in Owen County. The denial was based on the records not being organized by county but by facility name, and the Cabinet's method of record-keeping was deemed not to require the creation of new records to fulfill the request. However, the decision also notes that the Cabinet failed to provide a specific exemption for withholding the records and must allow inspection of nonexempt records to enable the requester to obtain the information sought.
Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Type:
Open Records Decision
Lexis Citation:
1989 Ky. AG LEXIS 85
Forward Citations:
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