Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Cabinet for Families and Children relative to the open records requests of Maurice L. Denton violated the Open Records Act. We conclude that the agency's responses were procedurally and substantively deficient insofar as they failed to comply with the procedural requirements of the Act.
The record before us indicates that Mr. Denton is involved in an administrative proceeding with the Department for Community Based Services. Along with his letter of appeal, Mr. Denton attached a copy of a Notice in Maurice Denton v. Department for Community Based Services, Administrative Hearing No. 02-05-003. The issue as framed by the Hearing Officer in a Notice to the parties is:
Whether the Department for Community Based Services, Division of Protection and Permanency (DCBS/P&P) followed Kentucky Administrative Regulations, Protection and Permanency Standards of Practice and/or were reasonable when Maurice Denton's Resource Home was closed.
The Hearing Officer further advised Mr. Denton in her Notice that he and/or his attorney may examine the contents of his Department for Community Based Services case record by filing a request under the provisions of the Kentucky Open Records Law. The Hearing Officer, among other things, ordered:
At the hearing, the parties should provide copies of documents to be entered into evidence and should ensure that those documents have been purged prior to submission in accordance with KRS 620.050(4)(a).
On June 13, 2002, Mr. Denton began a series of open records requests for records relating to his involvement with the CFC and the closing of his Resource Home. The initial request, covering ten pages and 23 numerical paragraphs, centered around numerical paragraph # 2 of his June 13, 2002, request, which stated:
2. I request all e-mails, telephone notes, meeting summaries, transcripts, letters, faxes, mail, audio tapes, names/titles of all who were mentioned, or participated in or copied in on, those communiques of any phone, group, or any communications of any type since January 1, 2000 to include, but not limited to, all communiques that were in any files, reports, etc. on March 8, 2002 to include up to the time the materials are delivered to Maurice Denton that in any way references Maurice Denton by name or any other means concerning his involvement with CFC or any other entity of state government/organization or any private organization and any other entity.
The request was further expanded to include all references to Maurice Denton and or Jessie Gutchknect, Maurice Denton and or Brandon and Brenton Wombles, and CFC communication records to or from other public and private agencies, including Northern Kentucky Children's Home, St. Joseph Children's Home, Brooklawn Youth Services, YMCA Safe Shelter Houses in Louisville, any entity of Seven Counties emergency call system, Louisville Police Department reports, Jefferson County Public Schools, and other agencies, concerning Maurice Denton and other names listed above.
By letter dated July 23, 2002, Nora McCormick, Assistant General Counsel, CFC, responded to two faxes she received on that date from Mr. Denton, in which he had asked for information and records relating to his administrative hearing. In response to Mr. Denton's request for "any, all documents between CFC Counsel Office and any, all entities . . . ," Ms. McCormick advised him:
No documents that are prepared by this office or are responsive to the questions of the office's clients may be released to you as they are privileged attorney-client communications.
Further, to clarify the record, you were advised in our conversation on Thursday to place in writing a demand for information that you feel was requested, but was not disclosed to you. Until I know the nature of the information you seek, I cannot respond.
In his letter of appeal, Mr. Denton states that he had been denied access to key documents needed for his administrative hearing. He asked this office to determine whether the actions of CFC in response to his requests constitute a violation of the Open Records Act.
After receipt of Notification of the appeal and a copy of Mr. Denton's letter of appeal, Jon R. Klein Assistant Counsel, CFC, provided this office with a response to the issues raised in the appeal. In his response, Mr. Klein advised:
I am forwarding Mr. Denton's latest request and my response as the Agency response to this Open Records Appeal. I have spoken with the supervisors in our Records Management area and they assure me that Mr. Denton was sent everything to which he is entitled under KRS 61.872, KRS 61.878, and KRS 194B.060, subject to redaction under KRS 209.140 and KRS 620.050.
Despite those assurances, however, I am conducting a thorough review of the documents in order to satisfy myself that we have turned over all documents to which he is entitled.
In a letter dated July 29, 2002, Mr. Klein responded to a July 29, 2002 open records request of Mr. Denton, advising him, in relevant part:
Second, I have briefly reviewed your rather lengthy request for additional documents. Some of the notations in the margins of your request did not transmit through the fax. For the record, a thorough review of all documents you originally requested for disclosure was conducted and you have already been provided with the documents to which you are entitled. However, that determination will be reviewed for each item in your request dated July 25th, and we will inform you of the results.
Third, since you referenced this provision in your fax dated July 23, I would note that KRS 13B.090(3) includes language that states:
Accordingly, even if the documents you requested exist, you may not be entitled to obtain a copy of the documents under state or federal law, or due to the attorney-client privilege.
We are asked to determine whether the actions of the CFC in response to Mr. Denton's request constituted a violation of the Open Records Act. For the reasons that follow, we find that CFC's responses were procedurally and substantively deficient insofar as they failed to comply with the procedural requirements of the Open Records Act.
KRS 61.880(1) provides, in relevant part, that:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In
Edmondson v Alig, Ky. App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act - much less . . . amount [] to substantial compliance.
Id. at 858 (emphasis added).
Thus, a public agency has a burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document(s) withheld. KRS 61.880(1).
Moreover, it has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the particular records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154; 93-ORD-67.
In its responses, CFC advised Mr. Denton that he had been provided with all the records to which he was entitled under KRS 61.872, KRS 61.878, and KRS 194B.060, subject to redaction under KRS 209.140 and KRS 620.050. This response is not sufficient under the Open Records Act.
KRS 61.878(1)(l) authorizes the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
While it is true, as the CFC stated, that records may be withheld under the attorney-client privilege, and are required to be withheld under KRS 61.878(1)(l), in tandem with KRS 194B.060, subject to redaction under KRS 209.140 and KRS 620.050, the mere recitation of these authorities without explanation as to their application to the records withheld does not meet the requirements of the Open Records Act.
We do not suggest that the CFC's reliance on these exceptions was completely misplaced, only that it failed to provide sufficiently particular and detailed information in its denial of Mr. Denton's request. While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in
Vaughn v Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that the Cabinet is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable, within three business days after the receipt of this decision.
Accordingly, consistent with the principles articulated above, unless the CFC can provide particularized justification for the withholding of any documents, or groups of documents, by indicating which exceptions apply to which records, and briefly explaining how the cited exceptions apply to the records withheld, as required by KRS 61.880(1), it must release all nonexempt records which satisfy Mr. Denton's request.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Maurice L. Denton P.O. Box 23538Louisville, KY 40223
Nora McCormickCabinet for Families & Children275 East Main Street - 4 WestFrankfort, KY 40601-0001
Adrienne MasonCabinet for Families & Children275 East Main Street - 4 WestFrankfort, KY 40601-0001
Jon R. KleinCabinet for Families & Children275 East Main Street - 4 WestFrankfort, KY 40601-0001