Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services violated the procedural and substantive requirements of the Open Records Act in the disposition of Todd County Standard Editor Ryan Craig's February 15, 2011, request for "access to public records in the Cabinet's discharge of its duties concerning Amythz (Amy) Rayne Dye, a deceased nine-year-old child." Mr. Craig received no response to his request prompting him to initiate this appeal.
In answer to this office's notification of receipt of Mr. Craig's appeal, the Cabinet acknowledged violation of KRS 61.880(1) , based on its failure to issue a timely written response, but indicated that on March 3, 2011, it denied Mr. Craig's request. The Cabinet maintained that it "did not possess any record responsive to the request." Because the Cabinet did not respond to Mr. Craig's statement that Amythz "had previously been under the Cabinet's care," on March 23, 2011, this office requested additional documentation from the Cabinet for substantiation pursuant to KRS 61.880(2)(c). 1 Specifically, we asked whether the Cabinet had prior involvement with Amythz; whether, if so, it conducted an internal review and prepared a case summary per KRS 620.050(1)(b); and whether, if not, it had any obligations under KRS 620.050(12). Additionally, we asked whether the Cabinet conducted a search for records relating to Amythz generated before her death.
On April 8, 2011, the Cabinet responded to our questions asserting that it was not "required to offer an explanation for the nonexistence of records." The Cabinet relied upon 07-ORD-033, an open records decision involving a request for records the existence of which was postulated on speculation rather than specific legal authority. Continuing, the Cabinet focused on its March 23 response to Mr. Craig's March 17 renewed request rather than the request and denial at issue in this appeal, arguing that it "did explain" the reason there were no records responsive to his request in the latter open records exchange. 2 The Cabinet declined to respond to our remaining question lest it "divulge information" in contravention of its duties under KRS 620.050(5). Mr. Craig did not appeal the Cabinet's response to his March 17 request. Indeed, we would have no knowledge of that renewed request were it not for the Cabinet's response to our KRS 61.880(2)(c) inquiry. We focus on the Cabinet's response to Mr. Craig's February 15 request which was, by the Cabinet's own admission, procedurally deficient. In our view, that response was also substantively deficient.
We will not belabor the procedural issues this appeal presents. KRS 61.880(1) requires a public agency to notify the requester of the decision whether it will comply with an open records request "within three (3) days, excepting Saturdays, Sundays, and legal holidays" of receipt of the request. The only exception to this statutory requirement is found at KRS 61.872(5) and may only be invoked if the requested record "is in active use, in storage or not otherwise available." That statute nevertheless requires a written response, within three business days, along with "a detailed explanation of the cause . . . for further delay . . . ." It was not until "Mr. Craig made Cabinet officials aware that the response had not been made by filing this appeal and providing a copy of same to the Cabinet's Office of Communications" that a response was finally issued. The fact that the individual responsible for responding was out of the office, and the person asked to complete the task became ill, has no bearing on this issue. The Open Records Act does not recognize employee absence or illness as a legitimate basis for failure to discharge the duties imposed by KRS 61.880(1). It remained the Cabinet's duty to issue a timely written response, and its failure to do so constituted a violation of KRS 61.880(1).
Substantively, the Cabinet's response was also deficient. Kentucky's courts have struggled with the dilemma posed when agencies deny a record's existence rather than claiming a statutory exemption as the basis for denial. The courts recognized, on the one hand, that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," and, on the other, that public agencies may be unreasonably burdened by "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . ."
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). The courts resolved the dilemma by determining that "before a complaining party is entitled to . . . . a hearing [to disprove the agency's denial of the existence of records,] he or she must make a prima facie showing that such records do exist."
At the administrative level, a record's existence can be presumed where statutory authority for its existence has been cited or can be located. KRS 61.880(2)(a) restricts the Attorney General's review of an open records dispute to a written record consisting of the request and denial. 40 KAR 1:030 Section 2 provides for a supplemental response to be considered in resolving the dispute. KRS 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation. " None of these provisions permit a hearing on the existence or nonexistence of a public record. To insure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, we believe the existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable. The agency can overcome the presumption by explaining why the "hoped-for record" does not exist.
The Cabinet relies on 07-ORD-033 in support of its position. There, the requester asked for a record identified as follows:
[I]f the members of the [Eastern Kentucky University] parking appeals committee are required to sign some form of confidentiality agreement, I would appreciate seeing one that has been signed by the current committee and its members.
Not only did the requester fail to cite specific legal authority directing the creation of the confidentiality agreement, he expressed doubt as to its existence. Our research disclosed no requirement that such a record exist. Under these circumstances, we were disinclined to ask the agency to "prove a negative . . . by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Bowling at 341.
In the appeal before us, a nine-year-old child died under circumstances suggesting abuse and/or foul play. The child was alleged to have been under the Cabinet's care, and this allegation appeared in the record on appeal. KRS 620.050(12) requires the Cabinet "to conduct an internal review of any case where child abuse or neglect resulted in a child fatality or near fatality" if the Cabinet "had prior involvement with the child or family." Nevertheless, the record on appeal from the Cabinet's March 3 denial of Mr. Craig's February 15 request was devoid of any explanation for the nonexistence of responsive records. Under these circumstances, the Cabinet was obligated to provide such an explanation in its initial denial. Failing that, it was obligated to provide written responses to our KRS 61.880(2)(c) inquiries to substantiate its position. Because the Cabinet for Health and Family Services' response to Mr. Craig's request was, at best, "limited and perfunctory," 3 we find that it was substantively, as well as procedurally, deficient.
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:
Ryan CraigChristina HeavrinAnn Burnham
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
2 In its March 17 response, the Cabinet advised Mr. Craig that no records existed "because Amy Dye's fatality was not the result of abuse or neglect as defined by KRS 620.040 (abuse or neglect by a parent, guardian, or person exercising custodial control or supervision) . Since it is not alleged that the individual involved in Ms. Dye's death was a parent, guardian, or person exercising custodial control or supervision of Ms. Dye, it is not within the Cabinet's authority to investigate it."
3 Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).