Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services ("CHFS") violated the Open Records Act in not providing interview notes and recordings pertaining to a foster parent application. We find that CHFS committed a procedural violation of the Open Records Act in stating that responsive records did not exist, when responsive records did exist, and CHFS did not specify any exemptions in withholding them. CHFS did not violate the Open Records Act in withholding preliminary interview notes and recordings that were not adopted as the basis for final agency action.
BACKGROUND
Paula L. Ratliff Pedigo ("Pedigo") submitted an open records request to CHFS on June 25, 2015. Pedigo stated that on June 29, 2015, an administrative assistant with CHFS called her for clarification. 1 Subsequent to that call, Pedigo submitted a clarification to her request on June 29, 2015. Pedigo stated:
Per your suggestion, I would also like to request a copy of the draft and final home investigation and all supporting documentation.
Additionally, I am still requesting the following documents:
. A copy of the interview notes (handwritten) and the written/typed summary of the interviews conducted by Erin Saltsman with David Tyler Pedigo (age 25) and with Tasha Cotter Pedigo (age 30) in May or June 2015.
. A copy of any subsequent notes to the original interview as a result of additional questions.
. A copy of the 'final' report, as part of the application process, that relates to Tasha Cotter and David Tyler Pedigo.
. A copy of any recordings that may have been made during the interview process with/and between David Tyler Pedigo and Tasha Cotter and Erin Saltsman.
On June 30, 2015, CHFS sent Pedigo a letter stating that the files would be requested and reviewed for compliance with state and federal laws governing privacy, and then would provide all records that could be released. On July 1, 2015, CHFS sent Pedigo a letter stating that it "was unable to identify any record in response to your request regarding the above referenced individual(s). . . . With the information furnished to our office and to the best of our knowledge, no such record exist [sic] in our files."
Pedigo initiated this appeal on July 7, 2015. Pedigo stated:
On June 30, 2015, I was advised by the case worker, Erin Saltsman, via text message, that she could not release her hand-written notes. (See attached picture of text.) Ms. Saltsman takes hand-written notes before she prepares her typed report/summary. Yet, on July 1, 2015, I receive [sic] a letter from the Cabinet that the records do not exist.
Pedigo attached a text message from an "Erin." The series of text messages stated, in relevant part:
(Pedigo): Can I request this pursuant to open records? I have a request prepared and can fax it today.
(Erin): Idk. I don't have anything in the computer, so I don't know how that works. I will ask my boss.
(Pedigo): I dropped off the request. It can be hand-written notes.
(Erin): I have just gotten the final word I am not going to be able to provide you with any of my notes. I wish you the best of luck I'm sincerely sorry for all the problems that have surfaced.
(Pedigo): Please go [sic] not destroy them. You haven't done anything wrong.
CHFS responded to Pedigo's appeal on July 14, 2015. CHFS stated:
Ms. Pedigo's narrative that she provided is accurate. . . . On July 1, the Cabinet sent another letter indicating that no records existed. This letter was an error by the Cabinet and for that error the Cabinet sincerely apologizes.
The Cabinet does have some documentation in regard to the application that Ms. Pedigo and her husband established in order to be approved as foster parents. . . . The first part of her request was, "a copy of the draft and the final home investigation and all supporting documentation" . Attached is the final determination letter mailed to Ms. Pedigo and her husband, on July 1, 2015, in regard to the application. . . . In the letter the Cabinet indicates that a mutual understanding was reached between the parties to withdraw the application based on conversations Mr. Pedigo had with the Cabinet's worker, Erin Saltsman. In the event of a voluntary withdrawal, the Cabinet concludes the applications process and depending on the timing of the withdrawal may or may not complete a "draft" and/or "final home investigation. In the case at hand the Cabinet's local office did not complete the final home investigation prior to the voluntary withdrawal. As a result, the Cabinet truly did not possess any documentation in regard to the first part of Ms. Pedigo's request.
Regarding Pedigo's requests for notes and recordings of interviews relating to David Tyler Pedigo and Tasha Cotter Pedigo, CHFS stated:
The Cabinet may have documents responsive to these parts of the request and the Cabinet erred in issuing a response that only dealt with the first part of the request. Again, for this the Cabinet sincerely apologizes to Ms. Pedigo. . . .
During the application process a Cabinet worker conducts an investigation into the fitness of an applicant to serve as a foster parent. In the course of conducting that investigation the Cabinet worker does interview people and takes notes, and potentially records conversations. The notes and recordings are all preliminary. . . . KRS 61.878(1)(i).
Regarding Pedigo's request for the final report pertaining to David Tyler Pedigo and Tasha Cotter Pedigo, CHFS stated:
Ms. Pedigo and her husband had withdrawn the application prior to any drafting of a "final" report. As a result, no "final" report exists and the Cabinet cannot provide something which does not exist. The only final document is the official correspondence . . . which indicates that Mr. and Ms. Pedigo withdrew their application to become foster/ adoptive parents.
CHFS attached a letter dated July 1, 2015, which stated:
On Wednesday, June 17, 2015, a conversation was held between David and Erin Saltsman at which time Mr. Pedigo referenced his age and that he did not want to start another family. We interpreted this to mean that he no longer wanted to continue with the application process of being approved as a foster/ adoptive home. In addition, Mrs. Pedigo communicated via text on that same day to Erin that Mr. Pedigo was contacting an attorney because he wanted a divorce. Because of this, we feel the need to withdraw your application to be approved as a Foster/ Adoptive parent based on the instability of your marriage.
In supplemental correspondence to this office dated July 17, 2015, Pedigo stated:
The Cabinet sent a letter that we had 'voluntarily withdrawal' of our application. This is false. We did not withdraw our application, the cabinet chose to withdraw our application based on incorrect information from the caseworker, Erin Saltsman. Their letter stated to contact Joey Minor, in writing, which I did on July 17, 2015 at 3:12 p.m. stating that we wished to continue in the process. . . .
I believe the cabinet issued this letter as a way to relinquish their obligation to provide the requested information. According to Ms. Saltsman, the report was completed and given to her supervisor who had additional questions for Tasha Cotter. Copies of these messages were submitted previously with my appeal.
Our investigation WAS completed, which is why we were allowed to provide respite care for a young child, age 6, in our home June 4-6, 2015.
Pedigo attached another letter to Joey Minor dated July 17, 2015. The letter stated that several persons involved were upset at the time, 2 and "having taken time to understand the issues, we wish to continue our path toward fostering. We would like to request that our application be reinstated, the home investigation completed and a copy of our file provided to us."
ANALYSIS
KRS 61.880(1) provides that "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." In stating that the records sought by Pedigo did not exist, when responsive records existed, and in not stating any specific exemptions applying to the documents, CHFS committed a procedural violation of the Open Records Act.
The preliminary documents exemption, which CHFS now asserts, exempts from the Open Records Act "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " KRS 61.878(1)(i) . However, "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); see also 09-ORD-041 ("Public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action ."). This extends to audio recordings of interviews as well. In 02-ORD-193, we found that:
The audio recordings of the witness interviews were made as a method of keeping a more accurate record of the investigation and represented an aid to the memories of both Mr. Bryson and the superintendent. Thus, we conclude that the tapes are in the nature of a tool used in hammering out official action rather than the official action itself. We therefore affirm the School District's denial of Mr. Morgan's request for the requested audio tape recordings, under authority of KRS 61.878(1)(i).
The determination by CHFS not to continue Pedigo's application after it was voluntarily withdrawn constituted final action by CHFS. In Palmer v. Driggers, 60 S.W.3d 591 (Ky. Ct. App. 2001), the court considered whether a voluntary resignation constituted final action by an agency. The court held that "a resignation from a position by an employee before the Commission has reached a decision concerning possible termination is a 'final action. ' . . . The subsequent decision of the Commission to end the hearings against Palmer constituted its 'final action. '" Id. at 597. Following Palmer , we have held that the determination to take no action after voluntary termination of proceedings constitutes final action, and any preliminary documents that are incorporated as part of that determination to take no action forfeit their preliminary status. If they are not incorporated as part of the determination to take no action, the records remain preliminary:
Although final action was taken here . . . i.e., the decision to take no action following Officer Cosgrove's resignation, . . . the determining factor on the facts presented is whether the investigative files were adopted, in whole or in part, as the basis for the agency's final action. Because OPD did not adopt the investigative records being sought as the basis for any final action, the records did not forfeit their preliminary characterization.
12-ORD-055; see also 10-ORD-075 ("The final action of the agency was the decision to take no action, i.e. , that no investigation was necessary. Inasmuch as the Report was implicitly adopted as the basis for that decision, it forfeited its preliminary characterization.").
In this case, there are no grounds to conclude that the interviews and notes sought by Pedigo were adopted by CHFS as part of its decision not to move forward with her application. CHFS' decision was "based on conversations Mr. Pedigo had with the Cabinet's worker." As such, CHFS has already turned over all documents which were incorporated as part of its final action in Pedigo's application to be a foster parent. Accordingly, in not providing notes and recordings of interviews which were not incorporated into CHFS' final action not to proceed with Pedigo's application, CHFS did not violate the Open Records Act. 3
Pedigo now disputes that her application was voluntarily withdrawn, and submits documentation, dated after the initiation of this appeal, indicating her intent to continue with the foster application process. "Such a factual dispute is incapable of resolution in an open records appeal based on the review of a limited written record, and we therefore decline to address this issue." 03-ORD-119. In the context of the Open Records Act:
Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute" . . . . In short, the limited function of this office in adjudicating an appeal filed pursuant to the Open Records Act is to review the course of action taken by a public agency, and issue a written decision indicating whether the agency violated the Act, not to locate the records at issue.
06-ORD-206 (citations omitted). Further, if Pedigo's application is indeed ongoing, CHFS would not be obligated to release any preliminary documents until final agency action is taken and those documents are incorporated as part of that action.
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 proceedings.
Footnotes
Footnotes
1 The same administrative assistant also emailed Pedigo on June 29, 2015 and requested that she complete a CHFS-305 Authorization for Disclosure of Protected Health Information, which she did. Pedigo responded to that email on June 29, 2015 and stated, "please issue a 'cease and desist' from destroying any records related to this study. I know Ms. Saltsman takes handwritten notes before compiling them into the computer. I will continue to request her hand-written notes until received."
The same administrative assistant also emailed Pedigo on June 29, 2015 and requested that she complete a CHFS-305 Authorization for Disclosure of Protected Health Information, which she did. Pedigo responded to that email on June 29, 2015 and stated, "please issue a 'cease and desist' from destroying any records related to this study. I know Ms. Saltsman takes handwritten notes before compiling them into the computer. I will continue to request her hand-written notes until received."
2 The letter stated that "Erin Saltsman spoke with Mr. Pedigo on July 17, 2015 when he was highly upset, having received a phone call from his daughter, Tasha Cotter, who was very upset with the interview and questions presented to her by Erin Saltsman. Tasha told her Dad that Erin told her that we were adopting a 6-year old boy. Needless to say, this upset Tasha, coming from the social worker and it really upset David because he did not know anything about it and he believed his daughter and Erin; thereby questioning his wife's intentions.
3 CHFS makes an additional argument that the notes were protected because "the Cabinet's investigator relied upon assurances of confidentiality in order to draw candor from the private individuals interviewed during the investigative process," citing 00-ORD-168. Our application of the preliminary documents exception renders it unnecessary to address this argument.