Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of Kenneth S. Handmaker's February 14, 2005, request for nineteen categories of information and records relating to the January 19, 2005, Child Protective Services Substantiated Investigation Notification Letter issued by the Cabinet to Mr. Handmaker's client, Ralph L. Stacey, Jr., 1 director of the Garrard Convalescent Home, Inc. 2 For the reasons that follow, we find that the Cabinet's disposition of Mr. Handmaker's request was partially violative of the Act.
In an email dated February 24, 2005, Assistant Counsel Jon R. Klein responded to Mr. Handmaker's request, explaining that he must submit form CHFS-305, "signed by a person authorized to receive the requested records in accordance with KRS 620.050(5) before obtaining the information and records identified in paragraphs 1, 3, 4, 5, 6, 7, 9, 10, 11, 13, and 19." With reference to paragraphs 1 and 2, Mr. Klein directed Mr. Handmaker to the Cabinet's website for records responsive to his request for training materials, suggesting that he focus on Item 7B of the Cabinet's Standards of Practice. With reference to paragraph 8, Mr. Klein acknowledged that the citations provided were not "exhaustive," but referred Mr. Handmaker to 922 KAR 1:470 and :490 for evidence in support of the Cabinet's statement that its finding might be the basis for denial of certain rights and privileges. With reference to paragraph 15, Mr. Klein acknowledged that he was unaware "of any comprehensive listing of agencies responsible for investiga[ting] allegations of child abuse or neglect, " but suggested that Mr. Handmaker review KRS 620.040 "provid[ing] authority for certain agencies to conduct such investigations." With reference to paragraph 16, relating to all other nursing home directors investigated by the Cabinet for suspected child abuse or neglect from January 1, 2000, through February 8, 2005, Mr. Klein indicated that the requested information is shielded from disclosure by KRS 620.050(5) and that neither Mr. Handmaker nor his client are entitled to access under the exclusions to this confidentiality provision. With reference to paragraphs 17 and 18, 3 relating to the education, job experience, and job description of the Cabinet employee who conducted the investigation, Mr. Klein advised that the requested information would be provided "except for any information excluded . . . [by] KRS 61.878(1)(a), as personal information. " Mr. Klein did not address Mr. Handmaker's request for documents supporting the statement that, as director, Mr. Stacey was ultimately responsible for the care a resident receives, found in paragraph 14.
Following an exchange of letters, the Cabinet disclosed certain records to Mr. Handmaker on May 2, 2005. Upon review, Mr. Handmaker concluded that the records released were "not fully responsive, " and that the Cabinet offered "no legitimate basis" for withholding additional records. On February 2, 2006, Mr. Handmaker's associate, Bradley E. Cunningham, initiated this appeal. Mr. Cunningham rejected the Cabinet's reliance on KRS 620.050(5) to support nondisclosure of all other nursing home directors investigated by the Cabinet, asserting that the Cabinet misreads the statute, and that as a "person suspected of causing dependency, neglect, or abuse . . .," Mr. Stacey is entitled to access to this information. Moreover, Mr. Cunningham observed:
One component of Mr. Stacey's defense is that the Cabinet's decision to bring charges against him in his personal capacity constitutes an act of selective enforcement, arbitrary action, or both. In light of Mr. Stacey's defense theory, he is absolutely entitled to information concerning the Cabinet's history and precedent as to substantiating charges of abuse or neglect against administrators of nursing home facilities.
In response to the Cabinet's invocation of KRS 61.878(1)(a) to support partial nondisclosure of certain personnel records, Mr. Cunningham argued that any invasion of the Cabinet employee's personal privacy was "clearly warranted" in view of the fact that "Mr. Stacey's reputation and livelihood are being assailed by the Commonwealth, and his ability to defend against the charges of abuse [and] neglect depends entirely upon his access to the documents requested." In closing, Mr. Cunningham objected generally to the Cabinet's failure "to provide full and complete responses to Item Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 17 . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Stacey's appeal, Mr. Klein amplified on the Cabinet's position. 4 An analysis of the propriety of each of the Cabinet's arguments follows.
Paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 19
For the period from November 1, 2005, to January 19, 2005, Mr. Handmaker requested access to:
1) documents identifying procedures followed by the Cabinet in investigating reports of suspected child abuse/ neglect per KRS 600.020(1);
2) manuals used by the Cabinet to train personnel in investigating reports of suspected child abuse/ neglect;
3) all documents upon which the Cabinet relied in support of the findings set forth in the 1/19/05 letter;
4) all documents identifying all persons interviewed as part of the investigation and all documents evidencing those interviews;
5) all documents evidencing all written or oral communications between the Cabinet and any representative of the Cabinet relative to suspected child abuse/ neglect by his client and/or Garrard Convalescent Home; 5
6) all documents evidencing the risk to which the Cabinet claims the named child was subjected as a result of the suspected abuse/neglect;
9) all documents evidencing all written oral communications between the Cabinet and any employee of Garrard Convalescent Home relative to the investigation;
10) all documents identifying Cabinet employees, agents, or representatives who participated in the investigation;
11) all documents evidencing all written or oral communications between the Cabinet and any non-Cabinet person, entity, or governmental agency, including Cincinnati Children's Hospital Medical Center;
12) all documents identifying persons or entities to whom (which) the Cabinet's January 19, 2005, letter was transmitted and documents authorizing the Cabinet to transmit it to them;
13) all documents evidencing "the report of suspected child abuse or neglect" received by the Cabinet on July 16, 2004; 6
19) all documents evidencing dates and times Kelly Skerchock devoted to the investigation of suspected child abuse/ neglect by his client.
With regard to these categories of records, the Cabinet acknowledged its duty to disclose responsive records by producing all such records as part of its May 2, 2005, response. 7 The Cabinet concluded its response to these portions of Mr. Handmaker's requests by noting:
If Mr. Cunningham feels that a particular document was left out and not produced, he should feel free to identify the document with reasonable particularity. 01-ORD-131, p. 9. If the document exists and no exemption applies, it will be tendered for production.
It is the decision of this office that with regard to the requests appearing in these numbered paragraphs, the Open Records Act requires nothing more.
In 06-ORD-042, this office addressed a similar issue in the context of a broadly worded request for records of the Louisville Arena Task Force. Adhering to a line of decisions dating back to 1989, we opined that where some, but not all, of the requested records are disclosed, the Attorney General has "declined to attempt to 'adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided.'" 06-ORD-042, p. 4, citing OAG 89-81, p. 4 (emphasis added). A copy of that decision is attached hereto and incorporated by reference, in particular, the discussion at pages 3 through 6. Here, as in 06-ORD-042, "[o]ur analysis . . . turns not on whether the fruits of the agenc[y's] search [for responsive records] meet[s] the requester's expectations, but whether [the agency] made a good faith effort to conduct . . . a search . . . ['using methods that can reasonably be expected to produce the records requested'], 8 and can then say, as unequivocally as the nonspecificity of the request[] permit[s], that no additional responsive records exist[]." 06-ORD-042, p. 5. Unless Mr. Cunningham can produce specific evidence of the existence of records not already disclosed, our inquiry need proceed no further. 9
Paragraphs 17 and 18
Among the records to which the Cabinet partially denied Mr. Handmaker access were records responsive to his request for:
17) Kelly Skerchock's resume, setting forth her education and job experience;
18) the job description applicable to Kelly Skerchock.
In response to this request, the Cabinet provided Mr. Handmaker with a copy of Ms. Skerchock's April 2005 application for employment after redacting personal information per KRS 61.878(1)(a). In defense of its actions, the Cabinet asserted that "decisions of the Attorney General are clear that information such as the home of public employees [is] exempted from disclosure. " Citing, 97-ORD-176, inter alia. The Cabinet adopted the same position in partially denying Mr. Handmaker's request for Ms. Skerchock's job description. We affirm.
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. " Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologist v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the court reasoned, "may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners, above. Echoing this view, in Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the quest for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act . . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink, above at 828, 829. If then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in what the Cabinet is doing and how it conducts its affairs. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners, above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
With these observations in mind, we note that the Attorney General has consistently held that a public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20; OAG 92-34; 95-ORD-123, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90. It is because such matters are generally unrelated to the performance of public employment that their disclosure would, in fact, constitute a clearly unwarranted invasion of personal privacy. "[T]he citizens' right to be informed as to what their government is doing" is in no way advanced by release, e.g., of a public employee's Social Security Number or date of birth, and disclosure of this personal information therefore constitutes a clearly unwarranted invasion of Ms. Skerchock's privacy. Zink at 828, 829. To paraphrase the Court of Appeals, while there may be some merit to Mr. Cunningham's assertion that Mr. Stacey's interest in defending against the charge of abuse and neglect would be served by requiring unimpeded access to these records, "this cannot be said to further the principal purpose of the Open Records Act. " Zink at 829.
Paragraph 7
Responding to Mr. Handmaker's request for documents constituting evidence in support of the Cabinet's January 19, 2005, statement that the alleged victim of abuse or neglect "was removed from GCH after it was determined that his medical needs were being neglected at GCH," the Cabinet advised:
After speaking with Ms. Skerchock regarding the statement . . ., Ms. Skerchock clarified that [the alleged victim] was admitted to CCHMC after it was determined that his medical needs were being neglected at GCH. After that, he was placed elsewhere rather than returned to GCH.
The Cabinet essentially reformulates Mr. Handmaker's request as a declaratory statement, but fails to state whether responsive records exist. In our view, the Cabinet's disposition of this portion of Mr. Handmaker's request constitutes a "non-responsive response." 01-ORD-59, p. 5.
In 99-ORD-39, the Attorney General rejected an agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded. There, we focused on our duties under KRS 61.880(2), declining to give deference to the agency's sexual harassment policy, and proceeded to an adjudication of the matter on the facts disclosed. In 01-ORD-59, we focused on the Department for Military Affairs' duties under KRS 61.880(1), and in particular, the duty to unequivocally state that a requested record does or does not exist, and, if it exists but cannot be disclosed, the statutory basis or other circumstances justifying nondisclosure. OAG 86-38, OAG 90-26; OAG 91-101; 96-ORD-164; 97-ORD-16; 01-ORD-138. Those circumstances consisted of the Department's inability to produce for inspection a final report because no final report has been transmitted to it by the federal agency responsible for the investigation. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a response that does not clearly so state is deficient. As this office has repeatedly noted, an agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9.
The record on appeal contains no indication whether the determination that the alleged victim's medical needs were being neglected was based on written findings or oral consultation. Simply stated, there is no evidence in the record that responsive records do or do not exist. Consistent with the cited decisions, it is incumbent on the Cabinet to notify Mr. Cunningham whether responsive records exist, and if so, to provide him with copies of any such records that do not otherwise qualify for exclusion.
Paragraphs 8, 14, and 15
The Cabinet refused to "perform legal research on behalf of Mr. Stacey" in denying that portion of Mr. Handmaker's request for records that included:
8) all documents evidencing the Cabinet's January 19, 2005, statement that ". . . this finding may be the basis for denying you certain rights and privileges, such as approval for foster parenting, adoption, or employment as required by state and federal law;"
14) all documents on which the Cabinet relies in support of its January 19, 2005, statement that "As director of this facility, it is your responsibility to ensure that all of the residents are cared for properly;"
15) all documents identifying every Kentucky agency responsible for investigating and submitting written reports of investigations of suspected child abuse/ neglect.
Having already furnished Mr. Handmaker with statutory and regulatory citations that might be responsive to the requests appearing in paragraphs 8 and 15 in its original response, it was the Cabinet's position that it was not obligated "to research all of the different rights and privileges that might be adversely affected by a substantiation of child neglect under both state and federal law," in response to paragraph 8, "to research both state and federal law to determine 'all documents' that support the statement" quoted in paragraph 14, or to "identify the relevant agencies" referenced in paragraph 15. We concur with the Cabinet in its view that, in general, it is not obligated to conduct legal research in order to satisfy an open records request.
In OAG 89-45, this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. There the requester sought the addresses of individuals whose names he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records, " noting that the public agency from which the records were sought "had no compiled record corresponding to the request." See also, 95-ORD-27; 96-ORD-53; 99-ORD-33; 02-ORD-213.
For purposes of contrast, we examine 94-ORD-121. In that decision the requester sought copies of "'rules' promulgated by the Department for Libraries and Archives concerning the parameters within which the University of Kentucky Records Management Program must operate in its creation, maintenance, storage and servicing of records . . . ." According to the University's own Records Retention and Disposal Schedule, records containing these "rules" were required to be compiled and separately maintained in a designated area of the agency. Thus, the records had already been compiled for purposes of satisfying the agency's records retention obligation. No additional research needed to be performed. The records had only to be retrieved from the designated area and produced for inspection. We concurred with the requester in his view that the agency had improperly equated an obligatory search with a nonobligatory research. 94-ORD-121, p. 7. With regard to the requests appearing in paragraphs 8 and 15, we believe the Cabinet has fully discharged its duty to identifying known legal authorities that are responsive to these requests, and that it has no duty to conduct additional research.
The Cabinet intimates that there is no existing compiled record corresponding to the request appearing in paragraph 14, but has not otherwise indicated upon what basis the cited assertion was made in the January 19 letter. 10 Assuming that there is no known authority for this statement, we find that to require the Cabinet to compile records to conform to the parameters of the request found in paragraph 14 would be tantamount to requiring the Cabinet to conduct legal research on Mr. Stacey/Mr. Handmaker/Mr. Cunningham's behalf. To this extent, their's were requests "for research to be performed rather than for inspection of reasonably identified public records, " OAG 89-45, p. 3, and the Cabinet was not obligated to honor those requests. However, in light of the paucity of information provided in response to the request appearing in paragraph 14, we believe it is incumbent on the Cabinet to amplify upon its position.
Paragraph 16
For the period from January 1, 2000, through February 8, 2005, Mr. Handmaker requested that the Cabinet:
16) identify each and every director of a nursing home facility, including, without limitation, ICF/MR or other facilities that are publicly operated in Kentucky, whom the Cabinet has investigated for suspected child abuse or neglect.
The Cabinet denied this request, asserting:
This information is confidential in accordance with KRS 620.050(5), and there is no indication that Mr. Cunningham or Mr. Stacey meet the criteria to be entitled to disclosure of the requested information under that statute. Thus, the Cabinet declines to produce any records in response to this request in accordance with KRS 61.878.
Rejecting Mr. Cunningham's argument that Mr. Stacey is entitled to the requested information because he is a person suspected of child neglect, the Cabinet observed:
The mere fact that Mr. Stacey has been substantiated as a perpetrator of child neglect in no way entitles him to access records of CPS investigations of other facility directors who were merely suspected of causing abuse, neglect, or dependency. [D]isclosure of such records would also be a violation of the investigated facility director's rights.
We agree.
We find no support in existing authority for Mr. Cunningham's argument that Mr. Stacey is "absolutely entitled to information relating to the directors of other facilities to advance his defense theory that "the Cabinet's decision to bring charges against him in his personal capacity constitutes an act of selective enforcement, arbitrary action, or both." Although he is the "person[] suspected of causing dependence, neglect, or abuse" in the investigation that gives rise to this open records appeal, he is only entitled to "[t]he report of suspected child abuse, neglect, or dependency and all information obtained by the Cabinet or its delegated representative as a result of" relevant to that particular investigation, per KRS 620.050(5), and not all investigations for a five year period. 11
KRS 620.050(5) provides:
The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this section, shall not be divulged to anyone except:
(a) Persons suspected of causing dependency, neglect, or abuse;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, child care administrators, corrections personnel, or law enforcement agencies, including the county attorney's office, the coroner, and the local child fatality response team, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect, or abuse is substantiated;
(f) Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.060.
(g) Employees or designated agents of a children's advocacy center; or
(h) Those persons so authorized by a court order.
In a series of decisions issued over a twenty year period, this office has affirmed the Cabinet's denial of open records requests for reports and information acquired as a result of an investigation conducted pursuant to KRS Chapter 620 unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 620.050(5)(a) through (h). See, e.g., OAGs 87-82; 88-4; 91-93; 92-53; 92-54; 92-ORD-1502; 94-ORD-134; 95-ORD-5; 96-ORD-43; 97-ORD-181; 99-ORD-197; 03-ORD-070.
In so holding, we have repeatedly recognized that "there may be occasions when the unequivocal language of KRS 620.050(5) works an injustice . . .," but have remained firm in this view. We are also firmly convinced that if a requester demonstrates that he or she falls within one of the excepted categories, he or she is only entitled to reports and information relating to the particular case under which they qualify. To hold otherwise would open these records to a wide range of individuals whose interest in the case is at best tangential, thereby rendering the confidentiality provision a nullity. If the Cabinet "misread[s]" KRS 620.050(5), so too does the Attorney General. We find no error in the Cabinet's denial of this portion of Mr. Handmaker's request.
Conclusion
In sum, we find that, with the exception noted in footnote 4, the Cabinet properly disposed of those portions of Mr. Handmaker's request found in paragraphs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, and 19 by disclosing all responsive records in its custody. The Cabinet also properly disposed of those portions of his request found in paragraphs 17 and 18 by releasing responsive records after redacting information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of privacy per KRS 61.878(1)(a), and that portion of the request found at paragraphs 8 and 15 by advising that it was not obligated to compile a record not already in existence. Further, we find no error in the Cabinet's decision to withhold the information requested in paragraph 16 under authority of KRS 620.050(5). However, we believe it is incumbent on the Cabinet to amplify on it responses to those portions of Mr. Handmaker's request appearing at paragraph 7 and 14 by indicating whether responsive records do or do not exist that formed the basis of these statements as they appeared in the Child Protective Services' January 19, 2005, Substantiated Investigation Notification Letter.
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.
Bradley E. CunninghamMiddleton Reutlinger2500 Brown & Williamson TowerLouisville, KY 40202
Jon R. KleinOffice of General CounselCabinet for Health and Family Services275 East Main Street - 5W-BFrankfort, KY 40621
Footnotes
Footnotes
1 Mr. Stacey has requested an administrative hearing to challenge the findings of abuse and neglect per 922 KAR 1:330.
2 Although the exhibits attached to this appeal include a February 14, 2005, open records request to Robert J. Benvenuti, III, Inspector General of the Cabinet for Health and Family Services, and a February 14, 2005, open records request to Kristy Reeder, Department for Community Based Services, the appeal does not contain copies of the Cabinet's response thereto or any indication that the Cabinet did not respond. Pursuant to KRS 61.880(2) and 40 KAR 1:030 Section 1, we cannot consider issues arising from the disposition of these requests.
3 Misidentified as paragraphs 16 and 17.
4 We would be remiss in failing to note that if the Cabinet had originally devoted as much time and attention to Mr. Handmaker's request as it devoted to Mr. Cunningham's appeal, a number of the issues raised in that appeal might have been preempted.
5 In responding to that portion of Mr. Cunningham's request appearing in paragraph 5, the Cabinet noted that it "had already produced all documents known to be in the possession of the Cabinet, responsive to this request and not subject to the attorney-client privilege, as part of the Cabinet's May 2, 2005, response." (Emphasis added.) On numerous occasions in the past, this office has determined that unless an agency adduces specific proof that particular documents, or portions of documents, fall within the parameters of the privilege, those documents, or portions of documents, cannot properly be withheld. See, e.g., 05-ORD-007. In 04-ORD-187, this office engaged in a lengthy analysis of the agency's burden in establishing the propriety of its invocation of the privilege. A copy of that decision is attached hereto and incorporated by reference, in particular, the discussion at pages 12 through 18. Consistent with the rule announced in 04-ORD-187, it is incumbent on the Cabinet "to identify the records being withheld and articulate its denial in terms of the privilege . . . ." 04-ORD-187, p. 18.
6 In responding to that portion of Mr. Cunningham's request appearing in paragraph 13, the Cabinet noted that "[a]ny documents known to be in the possession of the Cabinet and responsive to this request were already produced as part of the Cabinet's May 2, 2005, response . . . [but] were redacted in accordance with KRS 620.050(1)." The latter confidentiality provision extends protection to "[i]dentifying information concerning the individual initiating the report . . . ." Inasmuch as Mr. Handmaker conceded that "the name of the person submitting the report . . . may be redacted," and these were, presumably, the only redactions made, we treat this partial withholding as uncontested.
7 In some instances, the Cabinet waived the arguably applicable exemption. For example, with reference to paragraph 4, consisting of Ms. Skerchock's personal notes from her interviews, the Cabinet invoked KRS 61.878(1)(i), excluding from public inspection "[p]reliminary drafts, notes, [and] correspondence with private individuals . . . ." Nevertheless, the Cabinet released these records to Mr. Handmaker.
8 95-ORD-96, p. 7.
9 See Bowling v. Lexington Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005) discussed at note 7 of 06-ORD-042.
10 With reference to paragraph 15, it is likely that the Cabinet is aware of sister agencies, if any, responsible for conducting investigations of suspected child abuse/ neglect. It is unlikely, however, that a record or records exist identifying all of these agencies by name, and the Cabinet is not obligated to generate such a list.
11 As additional grounds for denying this portion of Mr. Handmaker's request, we note that the Cabinet might well have successfully argued that this request was an improperly framed request for information which it was not obligated to honor, as opposed to a properly framed request for an existing public record or records.