Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services, Department for Community Based Services, Division of Protection and Permanency violated the Kentucky Open Records Act in the disposition of Clerece Jackson's November 23, 2011, request "to view [the] case of" eight named juveniles for whom she is the legal guardian. Although CHFS apparently mailed a timely written response to Ms. Jackson, including hard copies of all existing responsive documents with limited redactions made per KRS 620.050(11), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(a), at no charge, Ms. Jackson apparently had not received the documents on December 6, 2011, and consequently initiated the instant appeal. 1 Upon receiving the agency's response thereto, Ms. Jackson clarified that she wished to inspect any responsive documents rather than receive copies by mail; accordingly, CHFS and Ms. Jackson ultimately agreed that she could inspect all of the documents previously mailed to her, on December 29, 2011, following a series of e-mail correspondence between the undersigned Assistant Attorney General, Ms. Jackson, and Jon Klein, Assistant Counsel for CHFS.
This office will not unnecessarily lengthen the instant decision with a detailed summary of the referenced correspondence, which began December 15, 2011, and concluded on January 9, 2012, as both parties are in possession of same. It suffices to say that both parties were provided with ample opportunity to provide any relevant facts and make any pertinent legal arguments for the record. The only remaining issues justiciable in this forum 2 are whether CHFS properly withheld the name and information of the "referral source" on the basis of KRS 620.050(11), including any "statements," and the statements allegedly made by her children and her neighbors. 3 Having carefully reviewed the record on appeal in its entirety, this office affirms the agency's final disposition of Ms. Jackson's request per the mandatory language of KRS 620.050(11) and well-established legal precedents construing that confidentiality provision, as well as governing case law and prior decisions confirming that a public agency cannot produce nonexistent records or information for inspection or copying nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records or information exist.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory and express language of KRS 620.050(11) unquestionably validates the position of CHFS relative to redaction of any information by which the "informant" can be identified.
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In other words, confidentiality provisions found in the Kentucky Revised Statutes 4 are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Resolution of this appeal turns on the mandatory language of KRS 620.050(11), pursuant to which:
Identifying information concerning the individual initiating the report under KRS 620.030 shall not be disclosed except: 5
(a) To law enforcement officials that have a legitimate interest in the case;
(b) To the agency designated by the cabinet to investigate or assess the report;
(c) To members of multidisciplinary teams as defined by KRS 620.020 6 that operated under KRS 431.600; or
(d) Under a court order, after the court has conducted an in camera review of the record of the state related to the report and has found reasonable cause to believe that the reporter knowingly made a false report.
When viewed in conjunction, KRS 61.878(1)(l) and KRS 620.050(11) operate to ensure that any information by which the individual initiating a report of dependency, neglect, or abuse under KRS 620.030 can be identified remains confidential, presumably to encourage compliance with KRS 620.030. Regardless of the purpose for which KRS 620.050(11) was enacted, the intent of the General Assembly was to ensure that such information is protected from disclosure as evidenced by the literal language of this confidentiality provision. This office has consistently upheld agency denials based on confidentiality provisions incorporated into the Act, including denials by the CHFS based on related subsections of KRS 620.050. See 08-ORD-127 and 09-ORD-059 (affirming denials by CHFS on basis of KRS 620.050(11)); see also 99-ORD-197 and 03-ORD-070 (applying KRS 620.050(5) (previously codified as 620.050(4)), the underlying rationale of which applies with equal force on the facts presented) .
Because Ms. Jackson does not fall into any of the excepted categories delineated at KRS 620.050(11)(a) -(c) nor does the record indicate that a court order has been issued under (d), CHFS is statutorily prohibited from releasing the requested information to her. In fact, KRS 620.990(1) provides that "[a]ny person intentionally violating the provisions of [Chapter 620] shall be guilty of a Class B misdemeanor." Accordingly, employees of CHFS properly redacted any information by which the individual who initiated the report under KRS 620.030 relative to her children, including "statements," if any, could be identified from the documents provided. 7 Ms. Jackson's remaining contention is that CHFS improperly redacted statements from her children and/or the "reports" of her neighbors.
Mr. Klein ultimately confirmed that no "information such as statements provided by children or neighbors was redacted. " While children or neighbors "may have been interviewed," he advised, "that does not mean that any information was written down or otherwise recorded." Any such notes "are normally destroyed once the report is written," he further explained. 8 As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. Thus, a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist, following a reasonable search, as CHFS has asserted here in reference to additional "statements" and "reports." The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 9 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame). When, as in this case, a public agency denies that any such records exist, and the record supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9.
CHFS now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Jackson's claim that such records exist. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id. at 341. Addressing this dilemma, in Bowling the Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 10 Id. In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Ms. Jackson failed to make such a showing here.
This office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." Ms. Jackson has not cited any objective proof or persuasive authority in support of her argument. In order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. No such authority has been cited or independently located here. Because Ms. Jackson "has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she] has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Compare 11-ORD-074 (holding that "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" and the agency failed to rebut the presumption).
On this question, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, or any evidence to suggest that such records were created or maintained in this case, the agency's denial of Ms. Jackson's request is affirmed in accordance with Bowling , above, and prior decisions of this office such as 07-ORD-188 and 07-ORD-190. To hold otherwise would result in CHFS "essentially hav[ing] to prove a negative" in order to refute Ms. Jackson's unsupported claim that additional responsive documents or information exist. 07-ORD-190, p. 7. Because CHFS has produced any existing responsive documents for Ms. Jackson's inspection, and KRS 620.050(11) expressly authorizes the limited redactions made, this office affirms the agency's disposition of her November 23 request.
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:
Clerece JacksonJon R. Klein
Footnotes
Footnotes
1 CHFS provided this office with a copy of the letter from Carrie Hall, Open Records Administrator, upon request. Although CHFS initially failed to cite a statutory exception(s), or briefly explain how it applied to the records being withheld, in violation of KRS 61.880(1), CHFS ultimately satisfied its burden of proof under KRS 61.880(2)(c).
2 This office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 3. To the extent Ms. Jackson is questioning the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. If Ms. Jackson has evidence which supports her claim that CHFS destroyed or concealed responsive documents, she may wish to consider the options available under KRS 61.991(2)(a). See 11-ORD-056, p. 4. Such issues cannot be resolved in this forum, nor does the record on appeal contain any evidence of such wrongdoing.
3 CHFS ultimately advised, more than once, that only the ages of the children were redacted on the basis of KRS 61.878(1)(a), and that was "probably done inadvertently by force of habit to comply with KRS 61.878(1)(a)." Because CHFS has twice offered to provide Ms. Jackson with another copy of the documents in dispute "with the ages visible," further discussion is unwarranted.
4 As a rule of general application, this office will defer to a public agency with regard to interpretation of confidentiality provisions which are binding upon it. 98-ORD-78, p. 3 (deferring to then Revenue Cabinet as to interpretation of KRS 131.190); 94-ORD-76 (deferring to then Cabinet for Human Resources as to interpretation of KRS 620.050(4)); 97-ORD-33 (deferring to Department of Corrections as to interpretation of KRS 197.025(1)); 04-ORD-252 (deferring to Department of Workers' Claims as to interpretation of KRS 342.229). See also 08-ORD-127.
5 KRS 620.030(1) provides:
Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's attorney or the county attorney; by telephone or otherwise. . . . Nothing in this section shall relieve individuals of their obligations to report.
6 Pursuant toKRS 620.020(7):
"Multidisciplinary teams" means local teams operating under protocols governing roles, responsibilities, and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse pursuant to KRS 431.600[.]
7 Although Ms. Jackson repeatedly asserted that she was entitled to such information per KRS 620.050(7), CHFS provided her with access to records concerning her children per KRS 620.050(7) only because she is not currently under investigation by a law enforcement agency or CHFS relating to the abuse of a child; however, that provision does not entitle her to access the name or identifying information of the individual who initiated the report, as KRS 620.050(11), the subsequent and more specific provision, clearly establishes. Where two statutes address the same subject, "the specific shall prevail over the general." City of Bowling Green v. Board of Education of Bowling Green, 443 S.W.2d 243, 247 (Ky. 1969).
8 Even assuming that responsive notes existed, CHFS correctly asserted that such records would remain preliminary, and thus exempt under KRS 61.878(1)(i), unless adopted as the basis for any final action. Because CHFS has verbally clarified that no written statements or reports existed in this case, with the exception of those made by the children and included among the documents released to Ms. Jackson, further consideration of this argument is unnecessary.
9 See KRS 61.8715.
10 Black's Law Dictionary, 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."