Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jessamine County Emergency Services violated KRS 61.872(2) by requesting that J. Robert Cowan "complete [an] open records request form including a signed release from [his] client" in response to his February 23, 2015, request for a 911 call identified by originating telephone number, address, and date, the computer aided dispatch (CAD) report for that incident, and "[a]ll dispatch tapes, patch recordings, recorded phone calls, or any other recordings related to [that] incident." Mr. Cowan expressly invoked the Open Records Act in the first paragraph of his request. Because Jessamine County Emergency Services did not condition Mr. Cowan's right of access to all nonexempt records on the use of this form, or require him to obtain a signed release from his client in order to obtain these records, we find that the county did not violate KRS 61.872(2) in the disposition of his request.
In his February 26, 2015, letter of appeal, Mr. Cowan characterized the county's February 24 response as a denial based on his failure to use its preprinted form and provide a signed release from his client. Citing 12-ORD-138, in which this office determined that the pre-printed form then required by Jessamine County Emergency Services as a pre-condition to a requester's right of access to non-exempt records violated KRS 61.872(2), he objected to the county's response.
In supplemental correspondence directed to this office after Mr. Cowan initiated his appeal, the county advised that "[n]otification of the availability of those responsive records was faxed to Mr. Cowan's law office on February 26, 2015," indicating that the records had since been mailed to his office. 1 The county's response included a copy of its February 26 letter to Mr. Cowan in which he was again asked to "complete and submit the attached open records request form for Jessamine County Emergency Services." Mr. Cowan replied to the county's supplemental response on March 8, 2015, asserting that because it again requested that he complete the county's request form and submit a signed release from his client the response represented little more than "a typed version of the February 24, 2015, handwritten denial which stated that the records would not be released unless [his] office completed the form and submitted some type of release from a client."
On March 20, 2015, the county clarified its position by letter directed to the Office of the Attorney General. The county emphasized that its original response "was not a denial" and that "Mr. Cowan was never advised," as he alleges, that "the records would not be released unless [his] office completed the form and submitted some type of release from a client." The county reaffirmed that the requested records were made available to him before he initiated his appeal. Continuing, the county observed:
It was requested of Mr. Cowan that he complete an open request form, but it was not required. It is unclear why Mr. Cowan feels that completion of the form and a release was required prior to the release of non-exempt, non-privileged documents, as those documents were made available to him without the completion of that form or a signed release. Completion of the form is requested to help emergency services better respond to and make available documents to an individual requesting records. It should also be noted that the general public is not entitled to ALL records in the custody of the agency to which the request is made.
Referencing federal law governing access to protected health information and state law governing access to records containing information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy, the county continued:
The reason for making such a request of Mr. Cowan is that any documents requested by Mr. Cowan which are protected by federal privacy laws or the exceptions to disclosure found in the Kentucky Open Records Act would not be disclosed to him unless he is representing a party that, despite the exceptions to disclosure, would be entitled to the release of those documents. However, in order for those documents to be made available for Mr. Cowan's inspection, he must provide a signed release from his client. Every other document, which is not subject to such privilege or exemption, would be available to Mr. Cowan for inspection without his client's release. The open records request form is designed to allow the agency to better and more appropriately respond to an attorney or insurance companies [sic] request in the event they are representing a party who is entitled to inspect otherwise privileged or exempt documents.
The county denied that Mr. Cowan's right of access to the records identified in his request was conditioned on his submission of a completed form and signed client release, 2 asserting that submission of the form and a signed release would afford him a broader right of access to otherwise exempt records. We find that Jessamine County Emergency Services' handling of Mr. Cowan's request, as described, did not violate KRS 61.872(2) or any other provision of the Open Records Act.
In 12-ORD-138, this office disapproved a mandatory open records request form then in use by Jessamine County Emergency Services. That form stated that "[a]ll blanks must be completed prior to the request being considered" and required the requester to provide the "[r]eason [i]nformation is needed." At note one of that decision, we observed:
[A] requester's purpose in seeking access to public records "is irrelevant" as KRS 61.872(2) narrowly defines the information that a public agency is entitled to require from a requester. 06-ORD-084, p. 4. "KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records, or to consider those motives in determining whether the records should be released." Id. The only exception to this rule is found at KRS 61.874(4)(b), which is not implicated here. See 06-ORD-084; 11-ORD-082. 3
This office has also consistently recognized that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. See OAG 76-588; 06-ORD-112. A public agency "may require a written application, as opposed to an oral request," but nothing in the Act "authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. " 94-ORD-101, p. 3; 10-ORD-122 (agency is "acting contrary to the intent of the Open Records Act 'by imposing unauthorized requirements on records access'" in requiring the requester to complete a particular form).
12-ORD-138, p. 1, 2.
The deficiencies in the mandatory preprinted open records form identified in 12-ORD-138 have been corrected in the permissive preprinted open records form at issue in this appeal. The county no longer requires open records requesters to state "the reason the information is needed" or, we trust, to complete this form as a condition of open records access. Although the county originally asked that Mr. Cowan complete the form currently in use, it did not require its use, for purposes of access to all responsive nonexempt records, when he declined to do so. With reference to unspecified records 4 for which exemption is claimed under federal and state law, this office has recognized that additional requirements can be imposed to ensure only permitted disclosure of protected health information. See, e.g., 08-ORD-067 (affirming hybrid entity's imposition of a requirement that requester submit a proper authorization for release of information as a condition to disclosure of protected health information).
The signed client release which the county demands as a condition to disclosure of exempt records containing such information is aimed at extending to attorneys and insurers representing clients broader rights of access to exempt records and not at impeding an open records requester, who stands in the same shoes as all other requesters, access to nonexempt records. Jessamine County Emergency Services should, as a general matter, implement measures to clarify that its preprinted form is permissive for open records requesters. As to this specific request, it should advise Mr. Cowan whether any records were withheld and, if so, the statutory basis for the withholding. We find that its actions here did not otherwise violate KRS 61.872(d) or any other provision of the Open Records Act.
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.
Footnotes
Footnotes
1 In his March 8 letter to this office, Mr. Cowan stated that the records had not been delivered to his office.
2 It is unclear what, if any, records were withheld from Mr. Cowan. On page 4 of its March 20 response, the county concluded that "all documents located and believed to be responsive to his request, that are not exempt from disclosure , have since been mailed to his office." (Emphasis in original.) The county did not identify any records withheld or the statutory basis for the withholding as required by KRS 61.880(1).
3 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
4 See note 2, above.