Request By:
Mark S. Ohlmann
June Kelly-Roy
William P. O'Brien
Paul V. Guagliardo
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 Louisville Metro Department of Public Health and Wellness violated, or otherwise subverted the intent of, the provisions of the Open Records Act in the disposition of Mark S. Ohlmann's January 24, 2008, request to inspect and copy the last three routine inspection reports and follow-ups for seven restaurants located in Louisville, including Del Frisco's, and "any complaint investigations and/or foodborne illness investigations as well regarding Del Frisco's." For the reasons that follow, we find that the Department's response to Mr. Ohlmann's request constituted a procedural violation of the Open Records Act insofar as it did not satisfy the requirements of KRS 61.880(1), and a subversion of the intent of the Act insofar as it resulted in the failure to afford him timely access to the records identified in his request.
In an emailed response dated January 25, 2008, the Department advised Mr. Ohlmann that his request had been received and that "[t]he records [would] be available on Tuesday, January 29, 2008, by 3:30 P.M." On January 30, Mr. Ohlmann went to the appropriate office to pick up the requested records, electing to examine the records before leaving. Upon inspection, he discovered inspection records for the first six restaurants, but no inspection records, or any other records, for Del Frisco's and no explanation for their omission. Mr. Ohlmann questioned department staff and was advised that inspection records for Del Frisco's would not be released, per agency policy, because the restaurant was the subject of an ongoing foodborne illness investigation. He next asked whether this policy extended to the January 16, 2008, regular inspection report and the January 18, 2008, follow-up report, as well as the 2006 and 2007 inspection reports and follow-ups, and was advised that it did. Shortly thereafter, Mr. Ohlmann initiated this appeal asserting that "all regular inspection (and follow-up) reports [are] separate from the ongoing foodborne illness investigation and eligible for disclosure. "
In correspondence directed to this office following commencement of Mr. Ohlmann's appeal, the Department notified this office that he "has been informed that the regular inspection records for 2006, 2007, and 2008 are available," but denied his request for the Del Frisco's foodborne illness investigation, asserting that he "seem[ed] to concede that those records are exempt from disclosure because of an ongoing administrative investigation. KRS 61.878(1)(h)." In response to this office's KRS 61.880(2)(c) inquiries, the Department subsequently confirmed that the available inspection reports included the 2006 and 2007 Del Frisco's regular inspection reports, but denied the existence of a regular inspection report for 2008. The Department explained that the "foodborne investigation was generated by a complaint and, since completed, will also serve as the basis of Del Frisco's first of the biannual inspections of 2008." In closing, the Department advised that the investigation into Del Frisco's was completed on February 13, 2008, and that "Mr. Ohlmann has been advised that he may have all 2008 records, with the names and other identifying information of complainants who completed environmental surveys being redacted due to medical confidentiality. KRS 61.878(1)(a)."
In a letter dated March 19, 2008, Mr. Ohlmann disputed several of the statements made by the Department, noting that the Department acknowledged the existence of a foodborne illness investigation and a 2008 regular inspection for Del Frisco's in a February 4 letter to him. This fact was later confirmed when Mr. Ohlmann obtained the packet of inspection reports, complaint investigations, and 2008 foodborne illness investigations, from the Department on February 22. The packet contained four inspection reports, identified as regular inspection reports, for Del Frisco's, two for 2006, one for 2007, and one for 2008. The packet contained thirteen consumer complaints, filed in the period from 1987 to 2007, along with these regular inspection reports, that "were unrelated to the 2008 foodborne illness investigation and should have been disclosed by January 29, 2008" instead of February 13, 2008, when the Department concluded its investigation and released them to him. While Mr. Ohlmann conceded the necessity of redacting personal health information and records compiled in the process of detecting or investigating pending allegations of statutory or regulatory violations, it was his position that the Department's disposition of his request was procedurally deficient, and that the necessity of partial redaction did not authorize the Department to postpone access to nonexempt records consisting of regular inspection reports and consumer complaints resolved prior to the 2008 investigation. We agree.
The Department violated KRS 61.880(1) in partially denying Mr. Ohlmann's request without citation to the exception authorizing partial nondisclosure or an explanation of how the exception applied to the records withheld. The Department's emailed response to his faxed request, 1 dated January 25, 2008, indicated that his faxed request had been received and that "[t]he records [would] be available on Tuesday, January 29, 2008, by 3:30 p.m." The Department did not indicate that any records responsive to his request were being withheld or the statutory basis for doing so. Upon oral inquiry, Mr. Ohlmann was orally advised that the Department's decision to withhold all responsive records relating to Del Frisco's was based on an agency policy prohibiting disclosure of records relating to an ongoing investigation. It was not until February 4, 2008, that he was notified in writing that the exception upon which the Department relied was KRS 61.878(1)(h). The Department offered no further written explanation for how that exception applied to the records withheld.
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.
KRS 61.880(1) requires public agencies electing to withhold all or any portion of a public record to "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. " In construing 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, 926 S.W.2d 856, 858 (Ky. App. 1996). The Department's emailed response to Mr. Ohlmann's request did not satisfy these statutory requirements and therefore constituted a violation of KRS 61.880(1).
Turning to the substantive issues on appeal, we find that the Department subverted the intent of the law based on its failure to afford Mr. Ohlmann timely access to Del Frisco's 2006, 2007, and 2008 regular inspection reports as well as the thirteen consumer complaints filed against Del Frisco's in the period from 1987 to 2007. In 07-ORD-047, this office reached a similar conclusion with regard to the Department in an appeal initiated by Mr. Ohlmann. At page 4 of that decision, we observed:
The Department's verbal response to Mr. Ohlmann's request was deficient insofar as it failed to offer a detailed explanation of the cause for delay. Moreover, assuming that March 1 was the earliest date on which the records would be available for inspection, we believe that the Department was bound to observe this self-imposed deadline. Its unilateral decision to extend the deadline, again without accompanying explanation, was improper. Although the Department retreated from its position after Mr. Ohlmann raised objections, it nevertheless erred in this regard, and its remedial action did not entirely mitigate that error. In view of this unexplained delay of six to nine days, and an apparent pattern of regularly postponing Mr. Ohlmann's access to nonexempt public records, we find that the Department subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), in the disposition of Mr. Ohlmann's request.
In the appeal now before us, Mr. Ohlmann was not notified that responsive records relating to Del Frisco's were available until February 13, nearly two weeks after the statutory deadline for disclosure. While we find no error in the Department's denial of that portion of his request relating to the ongoing foodborne illness investigation of Del Frisco's, the Department having subsequently adduced proof of harm from premature disclosure of these records in response to our KRS 61.880(2)(c) inquiries, we find that the denial of that portion of his request relating to the 2006, 2007, and 2008 regular inspection reports and consumer complaints dating back to 1987 was legally insupportable.
In 96-ORD-32, this office recognized that if restaurant inspection records do not relate to an ongoing investigation, and therefore do not qualify for exclusion under KRS 61.878(1)(h), a health department "has no legal authority . . . to delay access . . . or attempt to place restrictions on their use." 96-ORD-32, p. 3 citing OAG 77-585, p. 1; OAG 80-596, p. 3. These decisions were premised on the notion "that reports of inspections of enterprises regulated by law are public because of the need for public supervision of the actions of regulatory agencies and the public's right to be alerted to unsafe conditions." OAG 80-596, p. 3; see also OAG 89-36; OAG 91-100. They are accessible upon creation, and do not forfeit their status as nonexempt public records simply because a complaint is subsequently filed against the restaurant to which they relate. Assuming for the sake of argument that the 2006, 2007, and 2008 regular inspection reports, and consumer complaints dating back to 1987, could properly be characterized as "records compiled in the process of detecting or investigating statutory or regulatory violations" within the meaning of KRS 61.878(1)(h), a proposition that we are not willing to accept, the Department provides no proof of harm from disclosure of these earlier records. Their delayed disclosure therefore constituted a subversion of the intent of the Open Records Act based on the Department's failure to afford Mr. Ohlmann timely access to them.
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 Email transmission of an agency response to an open records request is not a statutorily recognized mode of transmission. 07-ORD-105; 07-ORD-033; 06-ORD-086; 06-ORD-018; 98-ORD-167. Mr. Ohlmann may, however, have consented, through his conduct, to open records transactions with the Department by email. Although he faxed his request, he followed up with an email requesting confirmation of receipt.