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 both the procedural and substantive requirements of the Open Records Act in the disposition of Cabinet employee Elizabeth Coleman's July 15, 2011, request for "open records in regard to [her] grievance filed on June 10, 2011 . . . ." These violations are predicated on the Cabinet's failure to afford Ms. Coleman timely access to all records responsive to her request.
On July 19, 2011, the Cabinet notified Ms. Coleman that it would "not be able to provide [her] with the documents in response to [her] open records request within three business days due to the time required to gather, review, and prepare the documents for release." The Cabinet indicated that it "expect[ed] to provide a response by July 27, 2011." Having heard nothing further, Ms. Coleman initiated this appeal on August 3, 2011. Shortly after receiving this office's notification of Ms. Coleman's open records appeal, the Cabinet provided her with a copy "of the responsive document," a July 12 "response conclud [ing] the grievance process," indicating that it had provided her with a copy of the same document on July 21 1 and urging this office to treat the issues presented on appeal as moot per 40 KAR 1:030, Section 6. We find the Cabinet's position legally untenable and decline to treat Ms. Coleman's appeal as moot.
The Cabinet's July 19 response to Ms. Coleman's request violated KRS 61.880(1). Although the response was issued within three days of the July 18 receipt of that request, it extended the deadline for production of the records beyond the three day deadline without providing a detailed explanation of the cause for delay per the requirements of KRS 61.872(5). 2 A vague assertion that additional time is required "to gather, review, and prepare the documents for release" does not satisfy the statutory requirement. If, in fact, the Cabinet mailed the single document it deemed responsive to Ms. Coleman's request to her on July 21, an assertion Ms. Coleman disputes, its extension of the three day statutory deadline for production of a single record confirms the lack of candor in its July 19 response. If it did not, its failure to issue a follow-up response on or before July 27 suggests that no attempt was made to fulfill Ms. Coleman's request until after she initiated her appeal. In either case, the Cabinet's response appears to contain boilerplate language that was in no way correlated to her particular request. This is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1).
Ultimately, the Cabinet produced a single record it deemed responsive to Ms. Coleman's request, namely, the July 12 "response conclud [ing] the grievance process." 3 That response suggests, at a minimum, the existence of notes made by Human Resources Administrator Jack Barnett in the course of his interviews with Ms. Coleman, Shawnee Bennett, and Stephen Jones concerning Ms. Coleman's grievance. The response indicates that Mr. Barnett conducted a "thorough investigation" and review of "all documentation submitted." Based on these assertions, we trust that the Cabinet's final action was not taken in a paperless vacuum. Additional responsive records exist and must, pursuant to KRS 61.878(3), be disclosed to Ms. Coleman.
In April 2011, this office was presented with an identical dispute between Ms. Coleman and the Cabinet concerning her January 3, 2011, grievance. A copy of 11-ORD-050 is attached hereto and incorporated by reference. At page 2 of that decision, we observed:
Ms. Coleman is a Cabinet employee. The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy "any record," including investigator's notes, that relate to the investigation. The Cabinet's refusal to allow her access to these records constituted a violation of the Open Records Act.
11-ORD-050, p. 2-3. Resolution of the issue in that appeal, as well as the appeal now before us, turned on the application of KRS 61.878(3) to the records withheld. At note 2, we emphasized that the limiting language found in the concluding sentence of KRS 61.878(3), and restricting a public agency employee's right of access to records relating to "ongoing criminal or administrative investigations by an agency" of which the employee was the subject, did "not apply to an investigation initiated by Ms. Coleman" through the grievance process. 11-ORD-050, p. 2 citing 95-ORD-97; compare, 11-ORD-133 (holding that a public employee is not entitled to an enhanced right of access to records relating to her if she is the subject of an investigation initiated by her employing agency and the records sought relate to that investigation). Consistent with this well-established principle, we find that the Cabinet violated KRS 61.878(3) in denying Ms. Coleman access to all "records in regards to [her] grievance filed on June 10, 2011 . . .," and that it must immediately make all such records available to her for 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 proceeding.
Distributed to:
Elizabeth ColemanJay KleinAlea Amber Arnett
Footnotes
Footnotes
1 Ms. Coleman disputes receipt of a letter dated July 21, 2011.
2 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall 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.
3 Ms. Coleman acknowledges receipt of Howard J. Klein's July 12 letter giving notice of final action relative to her grievance on or about that date. As noted, she denies that she received the July 12 letter as an attachment to a July 21 letter the Cabinet maintains that it issued in response to her open records request. Regardless of when she received the July 12 letter, it was not fully responsive to her open records request.