Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Families and Children subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4), in the disposition of employee Kindra Kilgore's April 26, 2010, request for records appearing in her personnel files. For the reasons that follow, we conclude that inasmuch as the Cabinet took more than two months to advise Ms. Kilgore of the copying fees, without adequate explanation for the delay pursuant to KRS 61.872(5), the intent of the Act was subverted.
In her April 26 letter to J. P. Hamm, Appointing Authority, which was received by the Cabinet the following day, Ms. Kilgore stated as follows:
Pursu[an]t to KRS 18A.020, I am requesting copies of the following documents as it relates to both the official and unofficial Cabinet and local personnel files held by the Cabinet for Health & Family Services from January 1, 1999 to the present date. I hope that you will comply with this KRS and respond within the required 3 days.
Pursu[an]t to KRS 61.878(3) as a public agency employee, I am requesting a copy of any record including preliminary and other supporting documentation that relates to Kindra Kilgore. The records shall include, but are not limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, disciplinary actions, and preliminary and other supporting documentation including, but not limited to, any notes, memos, letters, emails, etc from, but not limited to, outside agencies, community partners, CHFS staff, etc. Since there is not any ongoing criminal or administrative investigation occurring by this agency then there should be no problem in me having access to these records which are contained in my personnel file.
On April 29, 2010, Jay Klein, Division of Employee Management, replied as follows:
The Cabinet will not be able to provide you with the documents in response to your open records request within three business days due to the time required to gather, review and prepare the documents for release. We expect to provide a response within thirty (30) working days. We will also be identifying the documents that have already been provided to you in previous open records request [sic] and will not be supplying duplicates of those documents. Please note that you also will not be provided with documents protected by attorney/client privilege which are exempt from disclosure in accordance with KRS 61.878(1)(l) and KRE 503.
Based on your request, certain records and/or information within such records may be denied. The basis for the redactions is that there were no authorizations or court orders accompanying your request. Any individuals who would be directly or indirectly identified in the records have a right to privacy under Kentucky and federal law. In accordance with KRS 61.878(1)(a) , KRS 61.878(1)(k), KRS 61.878(1)(l), KRS 194A.060, KRS 209.140, KRS 620.050 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations promulgated thereunder at 45 C.F.R. Parts 160 and 164, the Cabinet is required by law to ensure that such information is not released without proper authorization or court order. Release of the information relative to any patient/resident absent a legally effective authorization or court order would constitute and unreasonable invasion of personal privacy. KRS 61.878(1)(a). Likewise the redacted information is made confidential by state and federal law. KRS 194A.060[;] KRS 209.140; KRS 620.050; 42 C.F.R. 431.306; 45 C.F.R. 164.502(a); KRS 61.878(1)(k) and (l).
Ms. Kilgore initiated an appeal to the Attorney General on May 3, 2010.
In the Cabinet's response to this appeal, Assistant Counsel Anne E. Burnham wrote on May 19, 2010:
To begin with, [Ms. Kilgore] requested records dating from January 1999 until the present in both official and unofficial personnel files in the main and local offices. She has also asked for notes, emails, letters, memos, etc. from persons employed within and without this Cabinet that may be in the Cabinet's possession and control.
Ms. Kilgore has worked for this Cabinet for a significant period of time and has worked for a variety of supervisors during her employment with this Cabinet. In order that the Cabinet can be assured that we have obtained all responsive records so that Ms Kilgore does not accuse the Cabinet of hiding documents or failing to provide records that we may have that relate to her, the Cabinet is diligently searching its files in the various office locations where Ms. Kilgore has worked, and where her prior supervisors are currently working, to insure that nothing is missed.
In that regard, and since these records are not contained in one, nice, neat file in a singular filing cabinet in a singular office location, it takes time to gather, the records, to review them to insure that the records are not exempt from disclosure in accordance with KRS 61.878, or any confidentiality provision by which this Cabinet is bound, to redact the records as may be required, and to then determine exactly how many pages exist and to obtain pre-payment of the statutorily required fee before disclosure of the records is made. Therefore, Mr. Klein, advised Ms. Kilgore that the Cabinet would require 30 business days to gather the records requested by Ms. Kilgore.
The Cabinet argues that "the excessive volume of her request" justified a time period of 30 business days, or approximately six weeks, before Ms. Kilgore could be notified of the copying fees. Furthermore, in response to a subsequent inquiry from this office, Ms. Burnham advised on July 8, 2010, that "I am told a letter should go out this week advising [Ms. Kilgore] of the fees." Thus, as of 50 business days after Ms. Kilgore's request was received, she had still not been advised of the copying charges.
KRS 61.880(1) requires a public agency to provide or deny access to public records within three working days of the receipt of the request. The only exceptions to this requirement are found in KRS 61.872(4), where the person to whom the request is directed does not have custody or control of the records, and KRS 61.872(5), where the records are "in active use, in storage or not otherwise available." See 06-ORD-270 (copy attached) and authorities cited therein. The Open Records Act therefore recognizes, as we have often noted, that "[t]he value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999).
The Cabinet has not alleged that the records sought by Ms. Kilgore are in active use, in storage, or not otherwise available. It has only alleged that the records are kept in various different locations. Even so, KRS 61.872(5) provides that where the records are in active use, in storage, or not otherwise available, a public agency must "immediately notify the applicant" of this fact and "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. " (Emphasis added.) We have previously stated that this subsection requires a " date certain, not a projected or speculative date, when the records will be available for inspection. " 01-ORD-38 (emphasis in original). Since the Cabinet neither properly invoked KRS 61.872(5) nor complied with its intent by giving a date certain, we conclude that its disposition of Ms. Kilgore's request was in violation of the time requirements of KRS 61.880(1).
We further conclude that the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the Cabinet's position that the delay is necessary. Cf. 09-ORD-139 (copy attached) and authorities cited therein. In 03-ORD-012, at p. 7, this office reasoned:
The records to which [the applicant] requested access consisted of a limited class, to wit personnel records, and were identified by name[.] It cannot be persuasively argued that the [records] custodian could not identify and retrieve these records based on this description. This being the case, we find that it was incumbent on the [agency] to "separate the excepted and ma[k]e the nonexcepted material available for examination." KRS 61.878(4). To suggest that discharge of this statutory duty was more difficult because the records sought were located in employees' personnel files ? defies logic.
Ms. Kilgore has simply requested a copy of the contents of her personnel files, to which she is entitled as a public employee under KRS 61.878(3). The fact that there may be numerous folders at various locations within the Cabinet with personnel records pertaining to Ms. Kilgore's years of service does not excuse the Cabinet from its duty to maintain public records and allow reasonable access to those records. A public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008).
The Cabinet, by merely citing various confidentiality statutes that may or may not apply, provides no evidence that it is unable to assemble and review the records in less than ten weeks. Furthermore, the fact that such records might need to be reviewed and redacted for exempted or privileged material does not, in and of itself, warrant this extreme amount of delay. A public agency is always "obligated to sift through any requested materials in order to determine which documents (or portions of a document) must be redacted or excised." Chestnut, supra, 250 S.W.3d at 664. We therefore conclude that the Cabinet, by its unreasonable delay, subverted the intent of the Open Records Act, short of a denial of 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 proceedings.
Kindra KilgoreJay KleinAnne E. Burnham, Esq.