Request By:
Amy Mischler
Jon R. Klein
Opinion
Opinion By: Jack Conway, 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 Amy Mischler's November 16, 2007, request for fifteen categories of records. For the reasons that follow, we find that although its disposition of Ms. Mischler's request was procedurally deficient, the Cabinet properly responded to that request by releasing all existing responsive records with the exception of a driver's license photograph, and, in those instances where no responsive records were located, so advising Ms. Mischler.
In her November 16 records application, Ms. Mischler requested access to the personnel records of five named Cabinet employees, four categories of records relating to a child support and child protection and permanency case to which she is a party, two categories of records relating to Cabinet policies on CAN database access, records relating to any internal investigations conducted by the Cabinet into her activities, records reflecting any sanctions imposed on employees of Pike County Attorney's Office "for purposely refusing to provide [her] with child support services from June 2005 until the present," the final order in Administrative Hearing No. P07-07-004, and records reflecting "the names of individuals who have accessed [her] records on the CAN database. " She indicated that she received no written denial of her request from the Cabinet, but was contacted by telephone on November 27 to "1) tell [her] that the open records request would not be ready until at least three weeks, and 2) to inquire whether [she] wanted the employees' full personnel files." In the course of her conversation with the Cabinet's representative, Ms. Mischler indicated that she required only disciplinary records and employee photographs located in personnel files, but expressed dissatisfaction with the anticipated three week delay. As a consequence, she initiated this open records appeal.
In supplemental correspondence directed to this office following commencement of the appeal, the Cabinet provided no explanation for the delay in providing Ms. Mischler with the records identified in her requests, but addressed those requests individually. With reference to her request for the disciplinary records of five named Cabinet employees, the Cabinet released responsive records relating to two employees and expressly denied the existence of responsive records relating to the other employees. The Cabinet located one "old Kentucky driver's license" with a photo of an employee in the employee's personnel file, but denied access to it on the basis of KRS 61.878(1)(a) asserting that disclosure "would constitute a clearly unwarranted invasion of personal privacy under the circumstances since nothing about the photo would reveal anything about the conduct of a governmental agency." In support, the Cabinet cited
Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994).
With reference to Ms. Mischler's request for four categories of records relating to her child support and child protection and permanency case, the Cabinet located and released records responsive to her requests for documentation of attempts to contact her former husband to verify income and documentation of child support payments ("considered unearned income"), but expressly denied the existence of documentation of Cabinet employee Debbie Dile's "direct response" to Ms. Mischler relative to Ms. Mischler's "concerns," 1 and documentation "regarding any type of Social Security disability application for" her son. In addition, the Cabinet expressly denied the existence of any records relating to internal investigations into Ms. Mischler's activities, other than the file review completed by Ms. Dile which she had previously obtained, policies relating to CAN database access, and a record reflecting the names of individuals who have accessed her records. 2 Relying on KRS 61.872(5), the Cabinet suggested that Ms. Mischler contact the Pike County Attorney for records relating to sanctions imposed on his staff for "refusing to provide [her] with child support services," explaining that it "does not maintain personnel records for employees of child support contract officials" and furnishing her with the Pike County Attorney's name and mailing address.
The Cabinet honored Ms Mischler's request for the Final Order in Administrative Hearing P 07-07-004.
Having reviewed its belated response to Ms. Mischler's request, we find that the Cabinet failed to afford her timely access to the existing public records identified in her request in contravention of KRS 61.880(1) and 61.872(5), but that it otherwise discharged its duties under the Open Records Act by providing her with all nonexempt responsive records, notifying her in clear and direct terms if no responsive records exist, and denying her access to an employee's driver's license photo on the basis that the employee's minimal privacy interest in the photo is nevertheless superior to the nonexistent open records related public interest in disclosure.
The Cabinet violated KRS 61.880(1) by failing to respond to Ms. Mischler's November 16, 2007, request in writing and within three business days. This office has frequently admonished the Cabinet for its practice of issuing 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 5 of 07-ORD-030 this office remarked on the "inherent deficiencies of the standard form letter utilized by the Cabinet," observing:
[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) 3 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").
In the instant appeal, the Cabinet neglected to issue a written response of any kind, electing instead to contact Ms. Mischler by telephone. Accordingly, we find that its errors and omissions constituted a violation 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 will be available. Given the Cabinet's failure to provide any written explanation of the difficulties associated with locating, retrieving, reviewing, and producing for inspection the responsive records, we are left to conclude that the Cabinet did not afford her timely access to those records.
Substantively, we find no error in the Cabinet's ultimate disposition of Ms. Mischler's request. The Cabinet provided her with all responsive disciplinary records, expressly denying the existence of any additional records. 01-ORD-38; 02-ORD-14; 04-ORD-205; 07-ORD-112 ("An agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms"). In the absence of a prima facie showing by Ms. Mischler that the Cabinet for Health and Family Services maintains specific records that have not already been disclosed to her, we are obligated under the rule announced in
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), as construed in 07-ORD-188 (copy enclosed), to affirm the Cabinet's disposition of this portion of her request. Applying this analysis to the Cabinet's partial denial of her requests for records relating to her child support and child protection and permanency case, and its blanket denial of her requests for records relating to internal affairs investigations and policies and records relating to its CAN database, we reach the same conclusion, affirming the Cabinet's disposition of these requests.
Nor do we find any error in the Cabinet's invocation of KRS 61.872(5) relative to Ms. Mischler's request for records reflecting sanctions imposed on the Pike County Attorney or his employee's for "refusing to provide [her] with child support services." As noted above, the Cabinet explained that it does not maintain personnel records for employees of child support contract officials, and provided Ms. Mischler with the name and location of the official custodian of such records, if they exist. This action was entirely consistent with the requirement found at KRS 61.872(5) 4 as it related to misdirected records requests.
Finally, we affirm the Cabinet's denial of Ms. Mischler's request for the single responsive photograph located in an employee's personnel file. 5 We concur with the Cabinet's reliance on KRS 61.878(1)(a), and its view that the public's interest in disclosure of the photograph is outweighed by the employee's privacy interests. 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.
The courts have established the standard by which we analyze the propriety of an agency's reliance on this exception to deny access to public records. In
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court recognized that the Open Records Act "exhibits a general bias favoring disclosure, " Id . at 32, and formulated a balancing test in which the public's interest in insuring that its agencies are properly executing their statutory functions is measured against the individual's interest in the nondisclosure of the disputed records. In
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals elaborated on the "mode of decision" established by the Supreme Court in Board of Examiners , observing:
[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Id . at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests implicated, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. " Zink at 828. "The purpose of disclosure, " the court continued, "focuses on the citizens' right to be informed as to what their government is doing." Id . Thus, disclosure of records that do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
We are unable to locate any previous decisions of this office dealing with a public agency employee's photograph. However, in 05-ORD-094 we determined that a detention center improperly relied on KRS 61.878(1)(a) in denying a request for a photograph of a federal inmate housed in that facility. Citing a 1981 opinion of the office in which we held that "[i]t is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail, " 6 and a 1983 opinion in which we extended this reasoning to the question of access to photographs of prisoners in jails, 7 we affirmed the public's right of access to the jail photograph concluding that its disclosure did not constitute a violation of the subject's privacy rights.
In the appeal now before us, no analogous open records related public interest is served by disclosure and no other open records related public interest has been articulated. 8 The Cabinet advises us that Ms. Mischler indicated she "wanted photographs so that she could post them on a website to warn others about these CHFS employees." This is not an "Open Records Act public interest in disclosure" 9 within the contemplation of Zink and its progeny. As in Zink , "[t]he relevant public interest supporting disclosure . . . is nominal at best," inasmuch as "[d]isclosure of [the photograph] would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Id . Acknowledging that a photograph is a useful means of identification, that a person's visage is one of the least private things about him or her, and that the privacy interests implicated are only incrementally more significant than the public interest supporting disclosure, we nevertheless find that the Cabinet properly relied on KRS 61.878(1)(a) in denying Ms. Mischler's request for the single responsive photograph located.
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 explained that Ms. Dile "never attempted to contact Ms. Mischler," although she "performed a review of the file."
2 The Cabinet indicated that "the computer system that contains the CAN database does not have the capability of tracking queries to the system," and that therefore the requested information did not exist.
3 KRS 61.872(4) and (5) provide:
(4) If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
(5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, 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.