Request By:
Ms. Elaine Campbell
Open Records Coordinator
Cabinet for Human Resources
Department for Social Services
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Consuela White has appealed to the Attorney General pursuant to KRS 61.880 your agency's response to her June 27, 1991, request to inspect the case file, including treatment plans, relating to her son, Jabari White.
In a letter dated July 9, 1991, Ms. Jo Ann Henning, who served as the Cabinet's Open Records Coordinator at that time, advised Ms. White that the records would be available for inspection "on approximately August 13, 1991." She explained that the file must first be retrieved, copied, and forwarded to her office for review. She warned Ms. White that the records might not be available on that date because the file was so large. Continuing, she indicated that in the event of a delay, "the material will be made available as soon as possible after the date above." In closing, Ms. Henning noted that the Cabinet might be compelled to mask certain information to protect the privacy of other individuals mentioned in the records, and informed Ms. White that there would be a ten cent per page copying charge.
Ms. White asks that we review Ms. Henning's response to her request to determine if her actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although arrangements have now been made for Ms. White to review the case file relating to her son, the Cabinet's response to her request was inconsistent with the Open Records Act insofar as it resulted in an inordinate delay in affording her access to the records requested.
OPINION OF THE ATTORNEY GENERAL
KRS 61.872(4) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Ms. White's initial open records request was submitted on June 27, 1991. Ms. Henning responded on July 9, 1991, seven working days after the date of request and four days after a response should have been issued pursuant to KRS 61.880(1). In that response, Ms. Henning indicated that the records would be available for review on August 13, 1991. You advised the undersigned, in a conversation on October 8, 1991, that arrangements have been made for Ms. White to review the file in your Louisville office in November 14, 1991. Thus, some one hundred twenty-eight days will have elapsed before she is afforded access to the documents.
It is the opinion of this Office that the Department for Social Services erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "anytime less than three days from agency receipt of the request." OAG 84-300. While we acknowledge that retrieval of the requested file, transmission of that file to the Louisville office, and failed attempts to contact Ms. White, may have accounted for the lengthy delay in affording her access to the file, we believe that a delay of this duration suggests an improper disregard for the purpose and intent of the Open Records Law.
With respect to the second question Ms. White raises, specifically, whether the Department can edit the documents to protect the privacy of other individuals mentioned in the file before she is permitted access, we find that the Department's expressed intentions are consistent with KRS 61.878(4), which authorizes an agency to separate exempt material from nonexempt material prior to release. However, it is incumbent on the Department to explain the nature of the materials redacted, and the exception authorizing redactin, here KRS 61.878(1)(a). OAG 90-12.
Ms. White challenges the imposition of a reproduction charge for any copies she requests. Clearly, the Department may assess a reasonable fee for making copies "which shall not exceed the actual cost thereof not including the cost of staff required." KRS 61.874(2). Its actions are, to this extent, consistent with the Open Records Act.
Because Ms. White will be afforded access to the requested records, her appeal must otherwise be treated as moot. However, we urge the Department to review the relevant provisions of the Open Records Act to insure that in the future, the public is afforded timely access to public records.
As required by statute, a copy of this opinion will be sent to the requester, Ms. Consuela White. Ms. White and the Department may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).