Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Mark Hardin appeals the Cabinet for Health and Family Services' inaction relative to his June 11, 2015, 1 request to inspect and copy:
. Frankfort State Hospital and school register of pupils 1892-1961;
. Frankfort State Hospital records of discharged patients 1919-1967;
. Lakeland Hospital admittance/discharge records from the 1920's; and
. Picture album Frankfort State Hospital and school.
Mr. Hardin received no response to his request, prompting him to initiate this appeal.
By letter dated July 2, 2015, the Cabinet acknowledged its failure to respond to Mr. Hardin's request, attributing the failure to miscommunication rather than an intent to ignore him. The Cabinet identified the employee to whom Mr. Hardin directed his request, Mr. Greg Popp, as its "liaison to the Kentucky Department of Libraries and Archives" but advised that Mr. Popp is not responsible for "responding to open records requests, only requests made by Agency records officers." The Cabinet noted that in 2014 Mr. Hardin correctly contacted the appropriate Cabinet records officer for the Department of Behavioral Health, Developmental and Intellectual Disabilities, Sandra Davis, indicating that Ms. Davis' position as records officer is now occupied by Hope Bryant. Since Mr. Hardin initiated this appeal, the commissioner of the department, and staff of the Office of Legal Services, "have become involved and coordinated with Mrs. Bryant to go to the records housed at the KDLA to organize them and search for any records responsive to Mr. Hardin's request." The Cabinet offered assurances that it "will work to amend its process so that this does not happen in the future."
Strict compliance with the requirements of the Open Records Act will accomplish this goal. Upon receipt of Mr. Hardin's request, Mr. Popp, or any other Cabinet employee to whom an open records request is misdirected, should have notified Mr. Hardin that he did not have custody or control of the requested records and furnished him with the name and location of the records officer for the Department of Behavioral Health, Developmental and Intellectual Disabilities. 2 KRS 61.872(4) addresses this problem by providing:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
The fact that the recipient of a misdirected open records request does not have custody or control of the records requested does not relieve him of his legal obligations under the Act. See, e.g., 10-ORD-170 (affirming Office of the Attorney General's timely, written response to request for tapes pertaining to a particular case that were turned over to the Kentucky State Police and no longer resided in the office's custody or control, notifying requester of these facts and furnishing him with the name and location of the custodial agency); see also, 11-ORD-035.
Had Cabinet staff discharged this duty in a timely, written response, Mr. Hardin could have resubmitted his request to the Department of Behavioral Health's records officer and expedited resolution of this appeal. If, as indicated, the Department was unable to fulfill the request within three business days, the records officer would have been obligated to notify Mr. Hardin, in writing, that the records identified in his request were in storage and provided a detailed explanation of the cause for delay, including the place, time, and earliest date on which the records would be available for inspection and copying. KRS 61.872(5) addresses this problem by providing:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The fact that public records are difficult to access because they are in storage does not relieve the agency of its legal obligations under the Act. See, 11-ORD-189 (rejecting reformatory's reliance on KRS 61.872(5) to deny inmate access to appeal and supplemental appeal from his adjustment hearing based on the position that the records were "in use").
Because the Cabinet failed to comply with these statutory requirements, Mr. Hardin's request went unanswered for a full week. This excludes the nine months that preceded his June 11 open records request to Mr. Popp. In an early open records opinion, the Attorney General recognized that timely access to public records is defined as "any time less than three days from agency receipt of the request." 11-ORD-035, p. 4, citing OAG 82-300; see also 93-ORD-134. "Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information and are difficult to locate and retrieve, will a determination of what a 'reasonable time for inspection turn on the particular facts presented.'" 11-ORD-035, p. 4 citing OAG 92-117. As of the date of its supplemental response, July 2, 2015, the Cabinet gave no indication that it had ascertained the number of records implicated by Mr. Hardin's request and whether the records contained exempt and nonexempt information. The Cabinet had not undertaken a search for the records. Final resolution of Mr. Hardin's request, to which he was entitled under KRS 61.880(1), 3 was still forthcoming. The Cabinet acknowledged these omissions and committed itself to prompt resolution of his request. We trust that these belated efforts have resulted in a successful resolution. If not, the Cabinet must focus its energies on completion of its statutorily assigned tasks and to "amending" its process to ensure strict compliance with the requirements 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 Mr. Hardin attached to his June 11, 2015, request to Cabinet employee Brad Popp a copy of an undated open records request he previously submitted to the Cabinet. The earlier request failed to yield the records he sought. He documented an exchange of unsuccessful email and telephone calls with Cabinet staff concerning these records that dated back to September 11, 2014. He limits the issues on appeal to the June 11, 2015, request.
2 As an alternative, Mr. Popp might have immediately forwarded Mr. Hardin's request to Ms. Bryant for timely processing and notified Mr. Hardin, in writing, of the transfer of his request to the appropriate records officer.
3 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.