Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Summary: 40 KAR 1:030 Section 6 authorizes the Attorney General to "decline to issue a decision" in an open records appeal "if the requested documents are made available to the complaining party after the complaint is made." Attorney General will not decline to issue a decision when responding agency's commitment to make records available one month after submission of request is prospective and conditioned on potential application of exceptions to disclosure when responsive records are "gather [ed], review[ed], and prepare [d] for release."
Open Records Decision
Laura Hatfield appeals the Cabinet for Health and Family Services's failure to respond to her August 4, 2014, request for "the personnel file of Eloise Bailey, employed at [the Cabinet's Magoffin County] office." Ms. Hatfield mailed her request to the Magoffin County office on or about August 11, seeking to obtain personnel records maintained at the local agency level. Her request was forwarded to the Frankfort office on August 25. On August 27, the Cabinet notified Ms. Hatfield that it would be unable to fulfill her request "due to the time required to gather, review, and prepare the documents," until September 12. That response, the Cabinet indicated, "may include the following exceptions" that might be applicable to Ms. Bailey's personnel file. On appeal the Cabinet acknowledged that it responded after the appeal had been filed, but argued that the appeal "should be moot pursuant to 40 KAR 1:030 Section 6 because the Cabinet intends to provide certain records in accordance with the provisions of the open records act." 40 KAR 1:030 Section 6 is not applicable to this appeal because no proof has been presented by the Cabinet that " all requested documents [were] disclosed to the complainant after the complaint [was] made."
40 KAR 1:030 Section 6 states, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In a 2009 open records decision involving the Cabinet for Health and Family Services, the Attorney General reminded the Cabinet that "unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 09-ORD-007, p. 5. This is particularly true when, as here, the Cabinet has not made the requested records available to the requester and its commitment to do so is both prospective and conditioned on the possible application of exceptions to disclosure. We therefore decline to treat Ms. Hatfield's appeal as moot under 40 KAR 1:030 Section 6.
The Cabinet's August 27 response to Ms. Hatfield's August 4 request, which was postmarked August 11, violated KRS 61.880(1) because it was not issued within three business days of receipt. Inefficiencies in its mail routing system do not excuse noncompliance with the requirements of the Open Records Act. The Cabinet compounded this violation by advising Ms. Hatfield in its response that it was unable "to provide [her] with the documents . . . 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 September 12, 2014," thus delaying her access to the single personnel file requested for an additional fourteen days. The Cabinet has given no indication that Ms. Hatfield's request was honored on September 12.
In 09-ORD-007, referenced above, the Cabinet employed the same method in responding to an open records request, advising the requester that the reason for delay was "the nature of her broad request from numerous individuals in various offices." Reasoning that the only exception to the three day rule found at KRS 61.880(1) is found at KRS 61.872(5), requiring "a detailed explanation" of the cause for delay beyond three days, we held that the Cabinet's response was only "minimally 'detailed,'" and the proposed delay unwarranted. We reach the same conclusion in this appeal. Here the Cabinet's explanation for delay is even less detailed. All open records requests require public agencies to "gather, review, and prepare documents for release." Nothing about Ms. Hatfield's request or the Cabinet's response justifies an extension of the three day deadline for records access. The Cabinet violated KRS 61.880(1) and KRS 61.872(5) by failing to afford Ms. Hatfield timely access to Eloise Bailey's personnel file.
If it has not already done so, the Cabinet is obligated to "identify and review the responsive records [in its Magoffin County office], release any that are not exempt, and assign the remainder to meaningful categories" to which a specific legal exception applies and its application explained. City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The Cabinet "should provide [Ms. Hatfield] with sufficient information about the nature of the withheld record (or the categories of withheld records) . . . to permit [Ms. Hatfield] to dispute the claim." Id. at 852. Because questions relating to the propriety of the Cabinet's invocation of an exception have not yet been reviewed under KRS 61.880(2), Ms. Hatfield may pursue a separate open records appeal with this office after the records are released to her if she disputes a claimed exception.
Either party may appeal this decision 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.