Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the record on appeal contains insufficient proof to support William Douglas Epling, II's, allegation that the Cabinet for Health and Family Services ("CHFS") violated the Open Records Act by failing to make full disclosure of records responsive to his January 20, 2011, request to inspect "all records pertaining to an investigation by the Cabinet of [Mr. Epling] in Madison County in early 2007 . . . ." On appeal, Mr. Epling did not properly present allegations concerning deficiencies in CHFS's responses to his earlier requests, and we are therefore foreclosed from reviewing those allegations. 1 Mr. Epling's allegations of willful concealment of public records cannot appropriately be reviewed by this office in the context of an open record appeal submitted under authority of KRS 61.880(2). Nevertheless, CHFS's response to his request was deficient insofar as it failed to address the existence or nonexistence of a specifically identified record and insofar as it treated his request to inspect as a request for copies. Mr. Epling must be afforded the opportunity to conduct an on-site inspection of the requested records notwithstanding the fact that CHFS mailed him copies.
By letter dated January 27, 2011, CHFS notified Mr. Epling that the Madison County Department for Community Based Services had, at its request, forwarded to CHFS all documentation relating to investigations concluded on February 27, 2007, and January 9, 2008. CHFS forwarded this documentation to Mr. Epling on January 27, 2011. One day later, Mr. Epling initiated this appeal advising the Attorney General that the records he received "were dated early 2009" rather than "early 2007 to early 2009" as requested. Additionally, he noted that the early 2009 records disclosed to him referenced other records requested but not received. In closing, Mr. Epling expressed the belief that CHFS "is hiding something."
In correspondence directed to this office after Mr. Epling initiated this appeal, CHFS emphasized that it "has already provided [him with] all of the records from the Madison County DCBS office, which includes the Continuous Quality Assessments from two investigations during the period specified in his request." For the first time, CHFS addressed Mr. Epling's request for a recorded interview conducted with his father in the fall of 2007 by a Cabinet employee, Ms. Dannelly, and a Kentucky State Police detective, Roger C. Short, advising him that CHFS "does not have possession of the recording requested." CHFS suggested that he contact Detective Short at Post 7 of the Kentucky State Police. Its failure to address this portion of his request within the three business days permitted by KRS 61.880(1) constituted a violation of that provision.
So, too, did CHFS's refusal to permit Mr. Epling to conduct an on-site inspection of the records identified in his request. In 11-ORD-029, this office restated the longstanding position that the "public has an absolute right to conduct on-site inspection of public records, " and that agency provision for inspection of public records "is not a courtesy extended to the public . . . subject to the terms and conditions dictated by the . . . public agency but a right that finds ample support in the Open Records Act and decisions construing it." 11-ORD-029, p. 3-4 citing 98-ORD-69, p. 3, and KRS 61.872(1) and (2) 2 and KRS 61.874(1). 3 A copy of 11-ORD-029 is attached hereto and incorporated by reference. CHFS did not relieve itself of the duty to make provision for on-site inspection by mailing the requested records to Mr. Epling "free of charge in light of the circumstances involved in his cases." If he still wishes to do so, CHFS must permit Mr. Epling to conduct an on-site inspection of all records responsive to his request.
Mr. Epling's objections relative to the matter of CHFS's investigation of him extend far beyond the narrow records access dispute upon which we focus in the discharge of our statutory duties. KRS 61.880(2)(a) directs the Attorney General to review the complainant's open records request and the public agency's denial and issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Evidence of willful concealment of public records, if it exists, cannot properly be reviewed by this office. Thus, in OAG 86-35, we recognized:
There is no provision in the Open Records Act giving this office general investigatory powers. We are neither required nor authorized to conduct investigations of public agencies to attempt to locate documents which the requesting party maintains exist but which the public agency states do not exist.
OAG 86-35, p. 4. This statement is consonant with the position we took in 98-ORD-23 in which we declared:
Our role in adjudicating the open records dispute between the parties is a limited one. Pursuant to KRS 61.880(2)(a), the Attorney General is charged with the duty to review [the] request and the [agency's] response, and issue a written decision stating whether the [agency] violated the provisions of KRS 61.870 to 61.884 .
98-ORD-23, p. 2. KRS 61.991(2)(a) establishes penalties for public officials who willfully conceal or destroy public records with the intent to violate the provisions of the Open Records Act, and KRS 519.060 establishes the crime of "tampering with public records. " The Attorney General is not empowered to render a decision on questions arising under these statutes, or to conduct an investigation into allegations of these offenses in an open records appeal. KRS 61.991(2) "confirms that the authority to assess intent, in general, resides in the courts" and that evidence of willful concealment of public records must be presented to the appropriate prosecutorial authorities. 11-ORD-013, p. 2. We make no finding on the issue of willful concealment. Accord, 93-ORD-24; 99-ORD-100; 07-ORD-234.
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.
Distributed to:
William Douglas Epling, IIRosa A. BrowningJon R. Klein
Footnotes
Footnotes
1 40 KAR 1:030 Section 1 prohibits the Attorney General from considering "a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." Although Mr. Epling apparently submitted three records requests, he provided this office with a copy of only one request and one response. That request was dated January 20, 2011, and CHFS's response was dated January 27, 2011. Our analysis is confined to this record on appeal.
2 KRS 61.872(1) and (2) provide:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 KRS 61.874(1) provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written record, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.