Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Cabinet for Health and Family Services relative to the request of Heather Harlin to inspect and copy the "file involving the investigation by DCBS into the alle[ged] abuse of my children" violated the Kentucky Open Records Act. By initially failing to offer a detailed explanation of the cause for the delay in providing access to the requested records, the Cabinet violated KRS 61.872(5). Having remedied this error on appeal, the Cabinet is now in compliance with the Open Records Act.
By letter directed to Jon Klein, Assistant Counsel, on March 16, 2005, Ms. Harlin requested access to the specified file, advising Mr. Klein that her "social worker" is Sarah Williams and the location of the file is Fayette County. In a timely written response, Carrie Hall, Records Management Section, Division of Protection and Permanency, advised Ms. Harlin that she would be notified of the fee once the Records Management Section had "reviewed the documentation requested." Included with Ms. Hall's response was a "CHFS-305, Authorization for Disclosure of Protected Health Information" for Ms. Harlin to complete.
Having received no further response from the Cabinet, Ms. Harlin initiated this appeal by letter dated May 27, 2005. According to Ms. Harlin, the case "was officially closed on May 9," 2005, and she was notified "by certified letter on May 16," 2005. Enclosed with Ms. Harlin's letter of appeal are copies of the referenced correspondence as well as another request dated March 24, 2005, and the completed CHFS-305 form.
Upon receiving notification of Ms. Harlin's appeal from this office, John H. Walker, Assistant General Counsel, responded on behalf of the Cabinet. As observed by Mr. Walker:
According to Ms. Harlin, she was notified that a Child Protective Services (CPS) investigation was completed upon an allegation of abuse, neglect or exploitation involving her children. Ms. Harlin was informed the investigation was completed and forwarded an open records request for a copy.
The Records Management Section of the Department for Community Based Services responded within the required time, and advised Ms. Harlin that the material would be forwarded to her within thirty (30) days. While the report may have been completed, the final step toward completion, the placement of the report within the computer system of records of investigations and court-related activity (commonly known as the workers' information system or TWIST system) has not yet been completed.
That process is ongoing and is undoubtedly delayed because of the volume of information workers from across the state input into this system. When input is complete, a copy of the documents Ms. Harlin seeks will be forwarded to her. The Cabinet has informed Ms. Harlin of this, and provided the appropriate telephone number to her if she should have any questions.
Rest assured that it is not the intent of the [DCBS] Records Management Section, to deny Ms. Harlin access to any record to which she is entitled. Once the material is accessible through the computer system, it will be produced in the appropriate format for her.
With the exception of a procedural violation, this office finds no error in the Cabinet's response.
Being unfamiliar with the process described by the Cabinet, the undersigned asked Mr. Walker to clarify his position as to why the requested records are currently unavailable. According to Mr. Walker:
The Department for Community Based Services maintains a Worker Information System [or] TWIST system [into] which all its investigative data on Child Protective Services (CPS) or Adult Protective Services (APS) is placed. This system is a computerized bank of data which is then accessible to all workers of the agency with a need for information on this investigation and its outcome. Placement of the report within the TWIST system is the final step taken by a worker in the completion of an investigation. The worker submits the draft information for inclusion in the TWIST system, and the worker's supervisor approves the report before it is deemed final. Moreover, the process is a quality control device. Until someone besides the worker has a chance to review the data and approve its inclusion in the system, it is not final. Once in [the] system, records management can produce the record.
It is important to remember that the agency maintains local offices in each county of the Commonwealth. The TWIST system is the central file for records and the volume of information awaiting inclusion in the system sometimes may delay its appearance in the system.
In our view, this explanation is both credible and sufficiently detailed to justify the delay in providing Ms. Harlin with access to the file in question.
As a public agency, the Cabinet must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the Records Management Section's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added). Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). Noticeably absent from the Cabinet's initial response by the Department for Protection and Permanency, Records Management Section, are both of these mandatory elements. To this extent, the Cabinet violated KRS 61.872(5).
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, as is the case here, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "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. " KRS 61.872(5) (Emphasis added); 02-ORD-165. In other words, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5 (Emphasis added).
On appeal, the Cabinet provides a reasonable and detailed explanation for the delay in honoring Ms. Harlin's request thereby fulfilling its obligation relative to KRS 61.872(5), albeit belatedly. To avoid future violations of this nature, the Cabinet should be guided in responding to requests by the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9. Assuming the Cabinet promptly notifies Ms. Harlan when the requested records are accessible, and provides her with copies of those records upon receipt of payment as indicated, nothing more is required.
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.