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 improperly characterized as insufficiently specific WLKY-TV reporter Andy Alcock's July 6, 2011, request for "all information about any investigations regarding Doctor Judy Green of Louisville." Assuming that the Cabinet conducted an adequate search for records responsive to Mr. Alcock's request for "complaints or any other documentation with regard to Medicare/Medicaid fraud complaint[s] against Dr. Green," we affirm its denial of this portion of his request. Given our determination that Mr. Alcock's request was sufficiently specific, we find that the Cabinet is required to conduct a similar search of the agency "using methods which can reasonably be expected to produce [any other investigative] records requested." 95-ORD-96, p. 3. Although the Cabinet is not obligated to mail the requested records located in the course of such a search to Mr. Alcock, we do not agree that it is relieved of its duty to conduct a search simply because Mr. Alcock did not precisely describe the records sought and those records are not readily available within the agency. Instead, the Cabinet is obligated to conduct an adequate search for, and afford Mr. Alcock on-site access to, any nonexempt records located and thereafter furnish him with copies at a reasonable fee not to exceed ten cents per page.
The Cabinet denied Mr. Alcock's request for "information about any investigations regarding Dr. Judy Green" on July 12, 2011, "pursuant to KRS 61.872(3)(b)," explaining that the request was "not specific enough for the Cabinet to identify what investigative records are being requested" and citing OAG 76-375. 1 In supplemental correspondence, the Cabinet explained:
Any of the agencies, departments, and offices of the Cabinet may conduct investigations to determine compliance with licensing requirements, competency to provide services to the public, eligibility for program participation as a recipient or a contractor, or as a result of a complaint.
It was the Cabinet's position that "[t]he Open Records Act does not require the Cabinet to undertake an exhaustive search of records within every agency, office, or department for an unlimited duration of time to satisfy a vague request." In response to our KRS 61.880(2)(c) request for a description of the types of investigations the Cabinet is authorized to conduct, the Cabinet provided us with a ten page compilation entitled "Statutory and Regulatory Responsibilities of the Cabinet" that "includes the specific responsibilities of the Cabinet to grant or deny licenses (permits, certifications, etc.) and benefits, as well as investigations involving potential harm to adults and children." The Cabinet maintained that the list "demonstrate[s] the reason why KRS 61.872(3)(b) requires a requester to 'precisely describe' the records being requested under the Open Records Act. " We disagree and conclude that a "precise description" is not required when the requester seeks to access public records by means of on-site inspection.
In analyzing the degree of specificity required in framing an open records request, Kentucky's Supreme Court has recognized that "[a] citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure." Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008) citing Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R.I. 1978). Such requests, the Court continued, "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." Id. The Court determined that a request satisfied the standard found at KRS 61.872(2) if it was "adequate for a reasonable person to ascertain [its] nature and scope . . . ." Id. at 665. With reference to KRS 61.872(3), the Court briefly recognized a "particularity requirement" when a requester resides or has his principle place of business outside the county in which the public records are located and requests access by receipt of copies through the mail. Id. at 661. The Court did not, however, interpret KRS 61.872(3) to relieve agencies of their duty to search for, locate, and make responsive records available for on-site inspection when the requester seeking to access those records by receipt of copies through the mail fails to satisfy the "particularity requirement."
Mr. Alcock submitted a brief and simple request for records of investigations conducted by the Cabinet into Dr. Judy Green. Like the requester in Chestnut, "[h]e was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . he had never seen." Chestnut at 661. Perforce, his request was limited to a single named individual 2 and to records still in existence under the applicable records retention schedule. 3 It is incumbent on the Cabinet to conduct a good faith search of the agencies, offices, and departments that could reasonably be expected to produce these records notwithstanding the lack of "particularity" in Mr. Alcock's request. To hold otherwise would facilitate agency abuse of the Open Records Act by enabling agencies to evade their statutory duties through the simple device of labeling a request insufficiently specific. This was clearly not the legislature's goal in enacting KRS 61.872(3)(b).
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:
Andy AlcockChristina Heavrin
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