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 a series of requests submitted by Thomas and Angel Clifford in January, February, and March of this year. For the reasons that follow, and with the limited exceptions noted, we find that the Cabinet did not violate the Act in the disposition of the Cliffords' requests.
In response to the allegation of "nonobservance, hold-off, task saturated tactics . . . with regard to not making [records] available" that Mr. Clifford leveled in his March 23, 2007, letter of appeal, the Cabinet accurately narrowed the issues on appeal to the following:
. Mrs. Clifford's request for the Cabinet's entire file relating to her children and her;
. Mr. Clifford's request for the Cabinet's KRS 61.876 rules and regulations;
. Mr. Clifford's request for any records relating to him or in which he is mentioned by name;
. Mr. Clifford's request for service recordings and continuous quality assessments relating to him; and
. Mr. Clifford's request for all documentation relating to Melinda Lea, Pendleton County Office Supervisor.
The Cabinet disputed Mr. Clifford's characterization of its disposition of these requests as "hold-off, task saturated tactics, " explaining that it "sought proper documentation and payment of copying and postage costs such that the prerequisites for disclosure of the requested records are met."
With reference to each of the issues on appeal, the Cabinet advised:
. [T]he Cabinet is tendering 523 pages of documents to Angela Clifford regarding herself and her children. Thomas Clifford is not entitled to these documents pursuant to KRS 620.050(5) and (7), and 61.878(1)(l). However, the documents have not yet been sent to Angela Clifford since the Cabinet is awaiting payment for copying and postage costs in accordance with KRS 61.872(3)(b). In addition, the records available include records classified as psychotherapy notes in accordance with 45 C.F.R. 164.501, and a separate authorization is required by 45 C.F.R. 164.08(c)(3)(ii) prior to disclosure of these records. Thus, in addition to payment, the Cabinet is holding some of these documents pending compliance with federal law. KRS 61.878(1)(k).
. [T]he Cabinet's procedures to be followed in requesting public records, a copy of 922 KAR 1:510, Authorization for disclosure of protected health information, accompanies this letter.
. A copy of thirteen pages of Child Protective Services records in the Cabinet's possession that mention Mr. Clifford by name have already been sent to him in accordance with KRS 620.050(5)(a). However, while some of the 523 pages of documents regarding Angela Clifford and her children may mention Mr. Clifford by name, they would have to be withheld from him because he does not meet any of the exceptions to confidentiality contained in KRS 620.050(5) or (7). KRS 61.878(1)(l). The Cabinet is unaware of any other documents that may mention Mr. Clifford by name. If such documents exist, Mr. Clifford certainly has not described them with reasonably particularity in his requests. OAG 91-58.
. [T]he requested documents relating to Melinda Lea, a Cabinet employee from Pendleton County, have also been tendered to Mr. Clifford. A total of 92 pages from Ms. Lea's personnel file, redacted in accordance with KRS 61.878(1)(a) and OAG 77-394 are awaiting Mr. Clifford's payment of copying and postage charged in accordance with KRS 61.872(3)(b).
In supplemental correspondence dated April 11, 2007, the Cabinet advised that Mr. Clifford should have already received each set of nonexempt records requested, the Cabinet having received payment for copies and postage as well as the appropriate releases. The Cabinet acknowledged that one additional record relating to Mr. Clifford had been located and would be sent to him under separate cover. 1 Additionally, the Cabinet amplified on its position that certain records requested by Mrs. Clifford are inaccessible to Mr. Clifford, explaining:
[A]ny such documents that may be in files relating to [Mr. Clifford's] wife and/or her children would not be accessible to [Mr. Clifford] under KRS 620.050(5) even though [Mr. Clifford] may be mentioned in them. KRS 620.050(5) has repeatedly been interpreted to require the requester to demonstrate that he falls within one of the categories of persons granted access to those records. 06-ORD-050. Since [Mr. Clifford has] not demonstrated that [he] fit[s] into one of the statutory exceptions to confidentiality, [his] request for those records is denied. KRS 61.878(1)(l).
With limited exceptions, we find the position advanced by the Cabinet well-taken.
With regard to records already disclosed to Mr. Clifford, we find that the issues on appeal are moot. 40 KAR 1:030 Section 6 provides:
If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
Any delays associated with production of these records were occasioned by the Cabinet's attempts to obtain prepayment of reasonable copying /postage charges and legally required releases from the Cliffords. The Open Records Act contains ample support for these actions. KRS 61.872(3)(b); KRS 61.874(1); 95-ORD-105 and authorities cited therein.
We find no error in the Cabinet's decision to withhold records relating to Mr. Clifford, or identifying him by name, from Mr. Clifford notwithstanding the fact that the same records were released to Mrs. Clifford. The Cabinet is entirely correct in its assertion that the Attorney General has, for some twenty years, affirmed the Cabinet's right to withhold records acquired as a result of an investigation conducted pursuant to KRS Chapter 620 unless the person requesting the records can demonstrate that he or she falls within one of the excepted categories codified at KRS 620.050(5)(a) through (h). 2 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. Although in so holding we have recognized that "there may be occasions when the unequivocal language of KRS 620.050(5) works an injustice . . .," we have remained firm in this view. The record on appeal does not establish that Mr. Clifford is entitled to access these records because he falls within one of the excepted categories, and the records were therefore properly withheld from him.
We also affirm the Cabinet's partial denial of Mr. Clifford's request for all records relating to one of its employees, Melinda Lea. Relying on KRS 61.878(1)(a), 3 the Cabinet properly withheld Ms. Lea's social security number, date of birth, home address, race and gender, and records relating to her health and life insurance, benefits, and banking. See, 03-ORD-012 (copy enclosed). In the absence of any allegation that Ms. Lea engaged in substantiated misconduct, thereby forfeiting her privacy interests in her performance evaluations, we affirm the Cabinet's refusal to disclose these records to Mr. Clifford as well. Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006).
Nevertheless, we once again remind the Cabinet that 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 is contrary to both the spirit and the letter of the Open Records Act. See, 07-ORD-030. At the risk of redundancy, we reiterate:
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.
07-ORD-030, p. 6. Once again, we urge the Cabinet to bear these observations in mind in responding to future records requests. 4
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.
Footnotes
Footnotes
1 The Cabinet references an April 4, 2007, request submitted by Mr. Clifford. That request largely mirrors earlier requests to which the Cabinet properly responded and would not, in any event, be ripe for review under the Open Records Act insofar as it was submitted after Mr. Clifford filed his appeal.
2 KRS 620.050(5) thus 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 custodian 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.
3 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
4 We also question the use of an open records request form that may require requesters to provide more information than the Open Records Act permits. On this issue, we refer the parties to 05-ORD-060, a copy of which is attached hereto and incorporated by reference.