Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lincoln Trail District Health Department violated the Open Records Act in denying Elvin Fowl's May 31, 2012, request for "documents, photos, or eye witness accounts relating to a complaint . . . concerning 'Raw Sewage running on top of the ground'" at Mr. Fowl's residence. We find that although its response was procedurally deficient, the department properly denied Mr. Fowl's open records request 1 for access to the complaint, and related documentation, while its investigation was proceeding. We do not, however, affirm the department's policies requiring the use of "an official request for records" and mandating the redaction of "the names of informants, and any other personal information such as home addresses, telephone numbers, [and] Social Security numbers . . . ."
On appeal, Mr. Fowl objected to the department's failure to respond to his request in a timely fashion and to otherwise adhere to the procedural requirements of the Open Records Act. In addition, he objected to the substantive arguments advanced by the department in support of its denial of his request. Finally, he objected to the department's policies relating to required use of an "official request for records" and blanket redaction of personal identifiers. 2
In supplemental correspondence directed to this office, the department formally invoked KRS 61.878(1)(h), 3 asserting:
The department has received a complaint and is in the process of investigating this complaint of a violation, which affects public health. Fowl has refused to grant permission for the department to enter his property to investigate this complaint, and thus no final determination as to the resolution of the potential violation has been made at this time. Records of this investigation may be used in an enforcement action and thus any production at this time would be premature. Thus, these records requested by Fowl, are not required to be produced under the Kentucky Open Records Law, pursuant to the exception provided in KRS 61.878(1)(h).
Pursuant to this same provision, the department, agreed to provide to Fowl, a copy of the requested records, after the enforcement action is completed or a decision is made to take no action. The department does have a policy that it deletes any personal information about the informant, including their name, from any documents produced. The basis for this policy is that many complaints received by the department involve employees or entities that may be violating health laws and if the name of the information is disclosed, retaliatory measures may be taken against the individual that filed the complaint. This would serve to discourage individuals with the most knowledge about unsafe and unsanitary conditions, from reporting such conditions to the department.
The department gave no indication that the individual who complained about Mr. Fowl's property was an employee of an entity violating health laws, that the individual had expressed any concern about retaliation, or that the individual had requested anonymity.
Following receipt of the department's supplemental response, Mr. Fowl obtained a copy of its open records policy and transmitted a copy to this office. That policy verifies the agency requirement that a requester "complete a Request to Inspect Public Records, Form B-010-1, prior to any records being released" and its practice of redacting "in accordance with the policy of the Cabinet for Health and Family Services, pursuant to KRS 61.878(1)(a), the name or names of informants, and any other personal information such as home addresses, telephone numbers, Social Security numbers, etc., . . . ." 4
The Lincoln Trail District Health Department violated KRS 61.880(1) by failing to respond to Mr. Fowl's request in writing, and within three business days, and by failing to cite the specific statutory exception supporting the denial of that request when it belatedly responded. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
It is incumbent on the department to not only "acknowledge the request within three (3) days," but to act on that request in accordance with the express requirements of the statute. KRS 61.880(1) requires the department to either produce the requested records for inspection, or mail copies, within three business days, or, alternatively, notify the requester in writing of the legal authority supporting nondisclosure of the records within three business days. The department's failure to discharge this duty constituted a violation of the Open Records Act.
The department's belated response to Mr. Fowl's request paraphrased KRS 61.878(1)(a), (h), and (i), advising him:
The complaint is part of an open investigation and we believe that releasing this information may be a determent [sic] to the investigation and is considered preliminary drafts, notes, and correspondence with private individuals. We also believe that release of the information is not in the best interest of the complainant and would constitute unwarranted invasion of personal privacy.
The department indicated that it would "not be opposed to another request" after the investigation was concluded, but reminded Mr. Fowl that its policies mandate use of "an official request for records (included) and that the names of informants, and any other personal information . . . shall be deleted . . . ."
Although there is clear authority for the proposition that a complaint may be withheld pursuant to KRS 61.878(1)(i) and (j) while an investigation is proceeding, and that investigative materials may be withheld pursuant to KRS 61.878(1)(h) until after enforcement is completed or a decision is made to take no action, there is no authority for the proposition that a requester must use the agency's "official request for records" or that the agency may adopt a policy of blanket redaction of complainants' names and personal information. We affirm the department's June 18, 2012, denial of Mr. Fowl's request for the complaint about his property, and documentation relating to the complaint, insofar as its investigation was ongoing at the time of his request, but find that its policies regarding mandatory use of an agency records request form and mandatory redaction of personal identifiers are legally unsupportable.
With respect to the department's right to withhold the complaint that prompted its investigation until final action is taken, or a decision is made to take no action, we refer the parties to 05-ORD-005 and the authorities cited therein. At page 9 of that decision, the Attorney General reaffirmed the longstanding principle that "a complaint, initiating or charging document, or any other document that spawns an investigation must be made available for public inspection at the conclusion of the investigation and upon the imposition of final agency action, including the decision to take no action." A copy of that open records decision is attached and its reasoning incorporated by reference. No final action had been taken at the time of Mr. Fowl's request for a copy of the complaint, and the department properly withheld it based on KRS 61.878(1)(i).
By the same token, records of an agency involved in an administrative adjudication, compiled in the process of detecting or investigating a statutory or regulatory violation, can properly be withheld under authority of KRS 61.878(1)(h) until after enforcement action is completed or a decision is made to take no action if the agency would be harmed "by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective . . . administrative adjudication. " Based on the reasoning set forth in 07-ORD-043, a copy of which is also attached, we affirm the department's denial of Mr. Fowl's request because its investigation was ongoing at the time of the request. At page 8 of 07-ORD-043, we recognized that KRS 61.878(1)(h) "has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action." Citing 97-ORD-129, p. 4. To the extent the department maintained such records in relation to its investigation into the complaint of raw sewage on Mr. Fowl's property, the records were shielded from disclosure by KRS 61.878(1)(h) at the time of his request.
We are mindful that the requested records relate to Mr. Fowl and his property and that separate state or local enactment, or general due process rights, may invest him with a greater right of access to the records. Having submitted his request under the Open Records Act, however, he enjoys no greater right of access, KRS 61.884 notwithstanding, 5 because the requested records are "subject to the provision of KRS 61.878." Consistent with the analysis set forth above, KRS 61.878(1)(h) and (i) authorized nondisclosure of those records. Mr. Fowl stands in the same shoes as any other requester under Kentucky's Open Records Act as to the statutorily exempt records identified in his request. Thus, KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person" and KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records. " In this regard, Kentucky's courts have declared that "the Legislature clearly intended to grant any member of the public as much right to access information [under the Open Records Act] as the next." Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). Mr. Fowl cannot access statutorily exempt public records under the Open Records Act in spite of the fact that those records relate to him.
Having so concluded, we nevertheless remind the department that it "cannot by its rules and regulations, amend, alter, enlarge, or limit the terms of legislative enactment." Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). The department's policy requiring use of "an official request for records" is legally unsupportable "because it purports to add a requirement not found in the statutes." Id. ; see also 11-ORD-080 and authorities cited therein (copy enclosed) . Similarly, its policy mandating redaction of names of complainants and personal identifiers, other than Social Security numbers, is at odds with the open records statute. See, e.g., 12-ORD-149 and authorities cited therein (copy enclosed) . Absent particularized proof of a heightened privacy interest in the complainant's identity, the public's right to know is superior to any generalized privacy interest in the nondisclosure of his or her name, and the referenced policies are unenforceable and of no legal effect.
By letter dated August 2, 2012, Mr. Fowl notified this office that the department's investigation is or may now be closed. He may therefore wish to resubmit his request to the Lincoln Trail District Health Department. We trust that the department will be guided by this decision in responding to Mr. Fowl's renewed 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:
Elvin FowlScott CurtsingerLaura M. Hagan
Footnotes
Footnotes