07-ORD-030 | KOGC

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 Wade McNabb's December 26, 2006, request for various records relating to a former Cabinet employee, Tracey Heflin. For the reasons that follow, we find that the Cabinet's disposition of Mr. McNabb's request was procedurally deficient but substantively correct.

As noted, in his December 26 application, Mr. McNabb requested copies of records relating to Ms. Heflin, including her:

. General education;

. Curriculum vitae;

. Specialized education and training in the field of forensic interviewing, especially in the area of child sexual abuse;

. Technical qualifications/proficiencies related to the above specified fields;

. Testimonial experience, especially relating to the above specified fields;

. Work experience, including dates and duration of departmental assignments;

. Incidence reports pertaining to wrong doing or improper conduct;

. Disciplinary reports and actions;

. Current employment status.

In a response dated January 11, 2007, 1 Open Records Specialist Carrie Hall advised Mr. McNabb that the requested records:

have been ordered from the custodian and will be sent to this office for a final review to determine what, if anything, may be released to you. This review will be performed as soon as possible upon receipt of the records in this office . . . .

Once the Records Management Section has reviewed the documentation requested and determined that records may be released, you will be advised of the fee . . . . Upon receipt of the payment, a copy of the documents will be mailed to you.

Accompanying this letter you will find a CHFS-305, Authorization for Disclosure of Protected Health Information. Please completely fill out the CHFS-305 and mail it to the Records Management Section . . . . If you have already submitted the CHFS-305, you do not have to resubmit this form.

State and federal law requires this office to protect the privacy and confidentiality of any individuals who may be mentioned in our records. Personal information about other people may be redacted from the documents that you receive.

Having received no further correspondence from the Cabinet, Mr. McNabb initiated this appeal on January 18, 2007.

In supplemental correspondence directed to this office on February 2, 2007, the Cabinet amplified upon its original response. On behalf of the Cabinet, Assistant Counsel Jon R. Klein explained:

Ms. Heflin has been separated from her employment with the Cabinet since 2003. Accordingly, her personnel file must be retrieved from storage in archives. The retrieval process will take an additional 3 to 5 business days.

Once Ms. Heflin's personnel file is retrieved from archives, the Cabinet intends to fulfill Mr. McNabb's request to the greatest extent possible. Of course, what the Cabinet may provide will be determined in large part by what the file contains.

Still, the Cabinet expects to be able to provide a copy of Ms. Heflin's state application with address, Social Security number, and other personal information redacted in accordance with KRS 61.878(1)(a), a copy of any resume or curriculum vitae similarly redacted, Ms. Heflin's job titles and work station assignments for the duration of her employment with the Cabinet, and any complaints or disciplinary reports in her file.

Training records for Cabinet employees are maintained by Eastern Kentucky University in their Training Records Information System (TRIS). Accordingly, the Cabinet is unable to provide those records. TRIS may be contacted by calling or sending email to:

Jana K. Godsey, TRIS Assistant Director

(859) 622-2332

Jana.Godsey@eku.edu

However, it is doubtful that any documents will be located that address Ms. Helfin's testimonial experience. Documents responsive to this aspect of Mr. McNabb's request are not routinely created.

Noting that Mr. McNabb "would probably already be in possession of the records he requested if he had specified in his request that he wanted records and/or documents regarding a Cabinet employee," 2 Mr. Klein concluded that the Cabinet "expects to be able to send whatever responsive documents from Ms. Heflin's personnel file no later than Monday, February 12, 2007."

Having received no follow-up correspondence, on February 16, 2007, this office contacted the Cabinet to ascertain the status of Mr. McNabb's request. On the same day, Mr. Klein notified this office that he had obtained a copy of Ms. Heflin's file that day, the file having arrived at the Cabinet two days earlier but having not been immediately forwarded to him. Mr. Klein provided us with a copy of the February 16 response mailed to Mr. McNabb in which Mr. Klein furnished Mr. McNabb with certain information in narrative form, 3 and a copy of her August 1, 2002, state application 4 after masking "personal information" on the basis of KRS 61.878(1)(a) 5 that included address and social security number. 6 He concluded that there are no records in Ms. Heflin's file that are responsive to Mr. McNabb's request for resumes, curriculum vitae, or disciplinary reports/actions. For a number of reasons, we must conclude that this response is procedurally deficient.

In a recent open records decision, this office admonished the Cabinet for its practice of issuing what appear to be boilerplate responses to records requests in order to secure additional time for final disposition of those requests beyond the statutorily imposed three working day deadline. Thus, at page 4 of 05-ORD-267 we remarked on the "inherent deficiencies of the standard form letter utilized" by the Cabinet:

[T]he practice currently employed by CHFS violates both KRS 61.880(1) and KRS 61.872(5). While the volume of requests directed to CHFS and the nature of the records implicated, in conjunction with the staffing issues CHFS apparently faces, undoubtedly present CHFS with a unique dilemma, the Open Records Act does not contain a provision extending the statutory deadline for CHFS or a waiver of the other procedural requirements . . . .

This decision mirrors earlier decisions of this office dating back to at least 1995, all of which were postulated on the proposition that public agencies cannot adopt and implement policies "which, by design, result in . . . delay[s] in the release of nonexempt public records, " and concluded with the rule that "[u]nless KRS 61.872(4) or (5) 7 are properly invoked, public agencies must comply with the procedural requirements of the Open Records Act by responding to written requests, and affording access to nonexempt records, within three working days." 96-ORD-168 p. 2-3; see also, 95-ORD-115 (Cabinet erred in postponing requester's access to nonexempt records while it "processed" her request); 05-ORD-134 (Cabinet's failure to provide a detailed explanation of the cause for the delay in affording requester access to public record within three working days, as required by KRS 61.872(5), constituted a violation of the Act that could be corrected in the future if the Cabinet would be guided "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").

The Cabinet's practice, as implemented in the request giving rise to the instant appeal, resulted in a number of violations of the Act, including violations of KRS 61.880(1) as it relates to timely, written responses, and KRS 61.872(5) as it relates to providing a detailed explanation of the cause for delay beyond three business days and identifying a date certain on which the records would be available. Moreover its failure to scrutinize the request more closely 8 resulted in the inclusion of irrelevant language relating to protected health information and a request that Mr. McNabb submit a CHFS-305 Authorization for Disclosure of Protected Health Information. Finally, the Cabinet erred in providing a speculative date on which the records would be available in its supplemental response, February 12, 2007, and in failing to notify Mr. McNabb or this office when it could not meet this deadline. While the Attorney General cannot compel the Cabinet to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, the courts are empowered to do so, and, in the face of a pattern of noncompliance, may well elect to do so. 95-ORD-105; 96-ORD-7.

Substantively, we find no error in the Cabinet's ultimate disposition of Mr. McNabb's request. The Cabinet compiled information responsive to portions of that request, in lieu of providing the documentation from which it extracted the information, 9 released a copy of Ms. Heflin's state application 10 after redacting personal information, 11 and expressly denied the existence of records in its custody that were responsive to the remainder of his request. 12 With the exception of the procedural deficiencies noted above, we find no error in the Cabinet's final disposition of Mr. McNabb'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.

Wade McNabbJon R. KleinOffice of General CounselCabinet for Health and Family Services275 East Main Street, 5W-BFrankfort, KY 40621

Carlton ShierAssistant General CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40601

Carrie HallOpen Records SpecialistDivision of Protection & Permanency275 E. Main Street - 3E-GFrankfort, KY 40621

Footnotes

Footnotes

1 It is unclear when Mr. McNabb's request reached the Cabinet. Allowing for delays in the mail, as well as intervening holidays, it nevertheless appears that the Cabinet's response may not have been issued within three working days as required by KRS 61.880(1).