Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Artis Anderson appeals the Cabinet for Health and Family Service's response to his February 11, 2016, request for "exact lists" of financial information relating to his wife and for responses to questions he posed. The Cabinet responded to Mr. Anderson's request by asking that he submit one of the following:
(1) [a] court-recognized document stating that [Mr. Anderson has] guardianship or power of attorney of the adult [about] whom [he] seek[s] records;
(2) [a] court order authorizing the release of this information; or
(3) [a] court-recognized document stating [that Mr. Anderson is] the administrator of this adult's estate if the adult is deceased.
Mr. Anderson immediately initiated this appeal, characterizing the Cabinet's response as a denial of his request and suggesting that because his request relates to his wife, the Cabinet cannot require proof of his entitlement to information about her. Because the statutes relating to the Cabinet contain a number of restrictions on access except as to specifically identified individuals, we find that the Cabinet did not violate the Open Records Act in requesting written verification from Mr. Anderson that he falls within one or more of the categories of excepted individuals.
KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records. " In Zink v. Com, Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. App. 1994), Kentucky's courts recognized that an open records analysis:
does not turn on the purposes for which the request is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act.
Thus, all open records requesters enjoy an equal right of access to public records. Confidentiality statutes restricting access to public records also apply to all open records requesters. Mr. Anderson's status as the husband of the person about whom he seeks information from the Cabinet does not invest him with enhanced rights of access under the Open Records Act. Were it otherwise, any open records requester could access records about his wife and, in this case, her financial affairs, though access to those records is statutorily precluded. Mr. Anderson elected to proceed under the Open Records Act, but his entitlement, if any, to the information identified in his request derives not from the Open Records Act but from his status as a person excepted from the confidentiality statutes that generally preclude public access to Cabinet records or from express judicial authorization, in the form of a court order, overriding the confidentiality statutes.
The Cabinet, fully aware of this dichotomy, had two options with respect to Mr. Anderson's request. The Cabinet could flatly deny his request pursuant to KRS 209.140 , as it would have denied the request of a disinterested third party who did not fall within a statutorily excepted category or who did not have specific legal authorization in the form of a court order. 1 Alternatively, the Cabinet could require him to provide proof of specific legal authorization to access the information identified in his request. The Cabinet chose the latter option. Its decision to do so did not constitute a denial of Mr. Anderson's open records request and did not violate the Open Records Act.
Moreover, in its supplemental response the Cabinet advises that it has provided Mr. Anderson with two copies of its substantiated investigative file and that these are the only responsive records in its custody. The Cabinet properly characterizes Mr. Anderson's request as a series of improperly framed requests for the creation of lists and requests for written responses to questions. The Open Records Act governs access to existing public records and imposes no duty on public agencies to create lists or provide written answers to questions. Thus, in 09-ORD-106 we cited with approval open records analysis dating back to 1987 recognizing that "a public agency is not obligated to compile a list or create a record to satisfy an open records request." 09-ORD-003 (enclosed), citing 04-ORD-080 and OAG 87-84. Aside from the collateral impediments to open records access identified above, Mr. Anderson's request was duplicative and/or improperly framed and therefore could be properly denied.
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.
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