Request By:
Heather MacWilliamsChief Russell Jones
116 N. 2nd Street
P. O. Box 119
Williamsburg, KY 40769Frank Atkins
City Attorney
225 Main Street
Williamsburg, KY 40769
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Williamsburg violated the Open Records Act in the disposition of Heather MacWilliams' September 14, 2007, request to inspect "the contents of former Williamsburg Chief Denny Shelley's disciplinary file and internal affairs file."
By letter dated September 26, 2007, Ms. MacWilliams initiated the instant appeal, advising that as of that date she had received no response to her request from the City.
After receipt of notification of the appeal, Roddy Harrison, Mayor, City of Williamsburg, provided this office with a copy of his September 26, 2007, response to Ms. MacWilliams, in which he advised:
The City of Williamsburg apologizes for any inconvenience but pursuant to statutes KRS 61.878(1), (a), (k), (l) and 45 CFR 164.512(e), we cannot release the records you requested.
For the reasons that follow, we conclude the actions of the City constituted both procedural and substantive violations of the Act.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute 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.
(Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals has 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." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Edmondson, supra, at 858; 01-ORD-183, pp. 2, 3; 04-ORD-183.
Although the City cited the statutory exceptions upon which it relied for nondisclosure of the requested records, it failed to briefly explain each exception's application to the records withheld. "While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld to 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 [City] 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. " 97-ORD-41, p. 6, 7. To satisfy the burden of proof imposed by KRS 61.880(2)(c), the City is required to provide a written response identifying any records which are responsive, but are not being disclosed, citing the applicable statutory exception, and briefly explaining how it applies to the records withheld. Its failure to do so in response to Ms. MacWilliams' request constituted both a procedural and substantive violation of the Open Records Act.
In her letter of appeal, Ms. MacWilliams indicated that she submitted her request to the Williamsburg Police Department on September 14, 2007, and as of the date of her letter of appeal, September 26, 2007, she had yet to receive a response to her request. The copy of the City's response to her request is dated September 26, 2007. The failure to provide Ms. MacWilliams with a written response within three business days after its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1).
In support of its belated denial of the request for the contents of former chief of police's disciplinary file and internal affairs file, the City relied upon KRS 61.878(1), (a), (k), (l) and 45 CFR 164.512(e).
Addressing first the City's reliance upon KRS 61.878(1)(a) in denying the request, this office and the courts have held that records relating to allegations of misconduct or of impropriety of employees in the course of their employment are not exempt form disclosure under KRS 61.878(1)(a) . In 05-ORD-005, p. 4-5, we observed:
In general, records relating to allegations of impropriety concerning public employees in the course of their public employment are not shielded from disclosure by operation of KRS 61.878(1)(a). That provision authorizes public agencies to withhold:
In Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001), a police officer against whom allegations of misconduct had been leveled attempted to invoke KRS 61.878(1)(a), inter alia , as the basis for denying a request for the complaint containing those allegations. The Kentucky Court of Appeals rejected the officer's claim, notwithstanding the personal nature of the allegations against him, observing:
Palmer at 598; accord, OAG 91-41; 98-ORD-45; 99-ORD-39; 00-ORD-104; 02-ORD-140, 04-ORD-031 (recognizing that "[p]ublic service is a public trust[, and] this office has consistently held that the public has a right to know about [a public] employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold [that] either no privacy interest existed under the facts, or if a cognizable privacy interest existed that it was outweighed by the public's right to be informed.")
Accordingly, we conclude that the requested records are not exempt from disclosure under KRS 61.878(1)(a).
In addition, the City advised Ms. McWilliams that the requested records were exempt under authority of KRS 61.878(1)(k) 1 and 45 CFR 164.512(e), better known as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In 04-ORD-143, copy enclosed, the Attorney General held that "HIPAA has no application to records generated by a police department in discharging its duty to protect public safety." This position was premised on the view that a police department is not a "covered entity, " for purposes of HIPAA, and that records generated by such a department do not contain "protected health information." 04-ORD-143, at p. 5, citing Tex. Att'y Gen. ORD-681 (2004). We continue to ascribe to this view and conclude that the requested records are not exempt from disclosure under HIPAA, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), because the City and its police department are not covered entities for purposes of HIPAA. 04-ORD-143.
Finally, the City cited KRS 61.878(1)(l) as a basis for denial of the request. KRS 61.878(1)(l) provides for 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.
The City failed to cite the specific statute or enactment of the General Assembly upon which it relied in denying the request. Thus, here too, the City failed to meet its burden of proof for withholding the requested records under KRS 61.878(1)(l) .
Thus, having failed to meet its burden of proof in denying the request for records relating to the former police chief's disciplinary and internal affairs files, the City should make the records available for Ms. MacWilliams' inspection.
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 KRS 61.878(1)(k) excludes from the application of the Open Records Act: "All public records or information the disclosure of which is prohibited or restricted by federal law or regulation."