Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in denying Leslie Rakes' written request for a "copy of the entire file" containing the "findings" of the Kentucky Occupational Safety and Health Program relative to the accidental death of his son, which occurred on January 14, 2009, at The Flooring & Furniture Gallery. In accordance with prior decisions of this office, such as 05-ORD-168, the Cabinet's denial is affirmed on the bases of KRS 61.878(1)(i) and (j). Insofar as Mr. Rakes made a standing request for the specified file, prior decisions also validate the Cabinet's position that such a request does not have to be honored.
In a timely written response, April L. Abshire, Paralegal Consultant, denied Mr. Rakes' request, advising that "the files are not releasable pursuant to KRS 61.878(1)(j), simply because the files are still not complete; therefore the files are considered to be preliminary in nature at this time." 1 (Original emphasis.) Ms. Abshire further indicated that "[a]s soon as the files are completed and this agency has decided what action to take, the releasable copies will be available. You may want to resubmit your request in approximately six weeks." Shortly thereafter, Mr. Rakes initiated this appeal, conceding that "the files are still incomplete making it impossible to comply," but challenging the refusal of the Cabinet to keep his request "on file" so that he may "receive a copy upon completion" as that "seems to be a duplication of [a] request to have to make a second request." 2
Upon receiving notification of Mr. Rakes' appeal from this office, David N. Shattuck, Office of General Counsel, responded on behalf of the Cabinet, focusing exclusively on Mr. Rakes' complaint regarding the need to resubmit his request at such time when the records can be released. 3 In addressing this complaint, Mr. Shattuck argues that "[t]here is no legal requirement, to our knowledge, that an agency maintain a request on file until such time as the records lose their preliminary status and become available for release. In fact, an agency is not obligated to honor a 'standing request' for records. 99-ORD-110; 97-ORD-18; 95-ORD-43." Although the Cabinet appreciates Mr. Rakes' need to access the records at the earliest opportunity, it has "no procedure in place that would allow [it] to track standing requests such as this one." Consistent with governing precedents, the Cabinet's denial is affirmed on the basis originally cited; however, the secondary argument offered in response to Mr. Rakes' appeal is also legally sound.
Among those records excluded from application of the Open Records Act in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j) as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In our view, the analysis contained in 05-ORD-168 relative to application of KRS 61.878(1)(i) and (j) is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. It is well-settled that both work notes generated by an occupational safety and health compliance officer in the course of inspecting or investigating a work site, which contain preliminary handwritten drafts of possible citations, along with the observations and opinions of the compliance officer, and correspondence with private individuals which is not intended to give notice of final action, may properly be withheld in accordance with KRS 61.878(1)(i). Similarly, work papers and interoffice memoranda containing opinions and recommendations relative to the investigation are exempt from public inspection pursuant to KRS 61.878(1)(j). In a line of decisions dating back to 1982, the Attorney General has reaffirmed this principle. The instant appeal presents no reason to depart from the approach historically taken by this office. Because the records and information withheld fall squarely within the parameters of KRS 61.878(1)(i) and (j), the Cabinet did not err in denying Mr. Rakes' request.
To the extent Mr. Rakes' primary complaint is that he is being required to resubmit his request when the investigation has been concluded and the files are complete, governing precedent supports the Cabinet's position. This office has consistently recognized that "standing requests" for public records do not have to be honored. In 99-ORD-110, the Attorney General engaged in the following analysis of this issue:
[I]n OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also, 95-ORD-43 (holding that a "standing request" for electronically stored records in the custody of the county clerk was procedurally deficient); compare, OAG 90-112, p. 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period," specifically identified the records sought, and must be honored) . This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view 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." 94-ORD-128, p. 2; 95-ORD-43, p. 3. Accordingly, we find that pursuant to KRS 61.872(2), [a public agency] can require [a requester] to submit a new request each time he wishes to inspect the [agency]'s records, and that the [agency] need only honor . . . requests for existing records, i.e., records which have been "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
Id., p. 3.
In light of the foregoing, this office finds no error in the Cabinet's ultimate disposition of Mr. Rakes' request; public agencies have no statutory obligation to have a procedure in place for processing requests in the manner proposed. As the Cabinet suggested, Mr. Rakes may wish to resubmit his request at a later date.
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.
Leslie M. RakesApril L. AbshireDan WaltonDavid N. Shattuck
Footnotes
Footnotes
1 In so arguing, Ms. Abshire was presumably asserting that the investigation had not been concluded, and the files were necessarily incomplete as a result.
2 Mr. Rakes' primary complaint appears to be that the Cabinet has not closed the investigation of this accidental death in fourteen (14) weeks though no autopsy was performed, nor will any criminal charges be filed, as evidenced by the closed status of the death investigation by the Lexington Division of Police. That issue is not justiciable in the context of an Open Records appeal.
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3 Although the Cabinet does not elaborate as to how KRS 61.878(1)(j) applies to the specific records being withheld, nor does the Cabinet invoke KRS 61.878(1)(i) as further support for its denial, this office has consistently affirmed its reliance on both provisions in prior decisions involving similar requests, and this appeal presents no reason to depart from the reasoning of those decisions. Inasmuch as Mr. Rakes apparently is not specifically disputing the preliminary nature of the records, further analysis of these omissions is unwarranted.
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