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 Cabinet for Health and Family Services violated KRS 61.880(1) by failing to respond to Art Anderson's January 25, 2012, request for "the individuals' names that made the decisions to NOT authorize an investigation into the abuse" of a named adult residing at a specified address. Although we do not believe the issue presented in this appeal was mooted by disclosure of a redacted copy of the record containing the information Mr. Anderson sought, 1 we find that the Cabinet properly relied on KRS 61.878(1)(a) in masking those portions of the responsive record that "touch [] upon the personal features of private lives."
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992) insofar as no public's interest in disclosure of the redacted material was substantiated.
Mr. Anderson submitted his request on January 12, 2012. Having received no response to his request, he initiated this appeal on January 25, 2012. In its response to this office's notification of receipt of Mr. Anderson's appeal, the Cabinet acknowledges that he "appeals what he claims is a lack of a response regarding his request," but offers no explanation for its characterization of his allegation as a mere "claim." Nor does it produce a timely written response to refute that "claim." The Cabinet is statutorily obligated to respond, in writing, to an open records request "within three days, excepting Saturdays, Sundays, and legal holidays." KRS 61.880(1). The Cabinet did not do so. The Cabinet therefore violated KRS 61.880(1).
Upon receipt of this office's notification of appeal, the Cabinet located a record that contained the information Mr. Anderson sought, an untitled document that consists of two entries demarcated by two dates. The Cabinet masked that portion of the document identified as the referral statement under authority of KRS 61.878(1)(a), 2 asserting that it includes protected medical information. Having conducted an in camera review of the document, under authority of KRS 61.880(2)(c), 3 we do not agree that it consists entirely of protected medical information. We do, however, agree that in the absence of a substantiated public interest in disclosure, the redacted material is shielded from disclosure by KRS 61.878(1)(a) because it does, in fact, "touch [] upon . . . intimate and personal features of private lives." Board of Examiners at 328. Applying the "comparative weighing of antagonistic interests" analysis established by the Kentucky Supreme Court in Board of Examiners at 327, we find that this strongly substantiated privacy interest outweighs the unarticulated public interest in disclosure. The Cabinet therefore did not violate the Open Records Act in redacting the referral statement.
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:
Art AndersonJon R. Klein
Footnotes
Footnotes
1 This office has often recognized that an open records appeal is not mooted by partial disclosure of the records identified in the underlying request. Thus, in 11-ORD-198 we noted:
Pursuant to 40 KAR 1:030 Section 6, a records access dispute is mooted after the requester initiates an open records appeal only if the requested documents are made available to him," 11-ORD-189, p. 3. (The requester] received only a portion of the requested documents, and the issue on appeal was not mooted by partial disclosure. "
11-ORD-198, p. 2. The Cabinet wrongly "assume[d] that this appeal [would] be considered moot in accordance with 40 KAR 1:030 Section 6."
2 KRS 61.878(1)(a) authorizes public agencies to withhold, "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
3 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.