Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in its disposition of Jeffrey A. Carson's October 18, 2016, request for "any and all records pertaining to your letter dated 12 December 2014 . . . to Jeffrey Allen Carson regarding the involuntary closure of his home to the DCBS/CHFS foster/ adoption/SNAP program." For the reasons that follow, we conclude that the Cabinet violated the Act by initially failing to respond, but has established sufficient basis on appeal for withholding some responsive records.
Mr. Carson repeated his October 18 request on November 10, 2016, after receiving no response. Then, on November 30, 2016, he sent an e-mail to Service Region Clinical Associate Melissa Robinson, stating in pertinent part:
1) Despite having sent record requests to the Cabinet for the initial denial in 2013 [ sic ], I have received nothing. In accordance with Kentucky's open records law, I want ALL records from both 2013 and this most recent denial to include all internal documents and communications from all parties relevant to my case. This shall include the forecast assessment results and any communications with Mrs. Kay Upton or class members from the classes to include Care Plus, I attended in 2013. Additionally, all correspondence or notes from references and contacts from 2013 and 2016.
2) I would like a copy of the SOP (standard operating procedure) that was referenced multiple times on Monday's call with Sonjequita Johnson that deals with approving and denying families.
No response to this e-mail, or to either of the two letters, appears in the record. Mr. Carson initiated an appeal to this office on December 9, 2016.
On December 20, 2016, David T. Lovely, Office of Legal Services, responded to the appeal on behalf of the Cabinet. He explains the lack of response to Mr. Carson's requests as follows:
Mr. Carson requested records from the Cabinet in regard to his application for the foster/ adoptive care program. The Cabinet did respond to his requests, 1 but the Cabinet did not interpret his request accurately and therefore failed to provide the documentation available to Mr. Carson. There is no excuse for the Cabinet's response to Mr. Carson indicating that no records existed for release. For that the Cabinet sincerely apologizes to Mr. Carson.
. . .
During the application process a Cabinet worker conducts an investigation into the fitness of an applicant to serve as a foster/ adoptive parent. In this file the Cabinet contains many different documents that all go into an overall determination of a person's fitness to be a foster/ adoptive parent. Most of this documentation is releasable, but some is not. The Cabinet employee who received the original open records request initially thought that the documentation Mr. Carson requested was not releasable. In order to avoid any further confusion the Cabinet has placed all releasable documentation on a disc and that documentation will be released to Mr. Carson with his copy of this letter.
Some of the documentation was removed, because it is preliminary. In the course of conducting the investigation the Cabinet worker does interview people and takes notes, and corresponds with private individuals. The notes and other correspondence are all preliminary. The notes and correspondence in the investigation process represent, "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).
From the record, we can identify no written response issued to Mr. Carson prior to Mr. Lovely's filing on appeal. Since the Cabinet had the duty to respond to Mr. Carson's request within three business days under KRS 61.880(1), we must conclude that it procedurally violated the Open Records Act by failing to do so.
Substantively, the Cabinet relies on KRS 61.878(1)(i) to exclude notes from interviews and correspondence with private individuals. A "note" is defined as a "brief record," especially "one written down to aid the memory. " 97-ORD-183. The classification of "correspondence with private individuals" is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168.
In
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." (Emphasis added.)
In 01-ORD-47, we summarized the manner in which "preliminary" records may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658, 659, 660 (Ky. App. 1982).
We find no error in the withholding of interview notes, assuming that these were brief writings made to aid the memory of the Cabinet employee in preparing subsequent reports or materials. If, under particular circumstances, any of the notes themselves were adopted as part of the basis of the Cabinet's final action, those would lose their preliminary character and have to be disclosed.
We have reviewed in camera the ten pages of records withheld as "correspondence with private individuals." Two of those pages consist of a communication between two Cabinet employees, Betty Bastin and Kay Upton, concerning Mr. Carson. Since these two pages cannot in any way be characterized as correspondence with private individuals, they were improperly withheld on that basis.
The remaining eight pages appear to be in the nature of correspondence with private individuals, in which the candor of the correspondents may have depended on assurances of confidentiality. Specifically, they include personal references and other opinions bearing upon the merits of Mr. Carson's case. The Cabinet's argument on appeal ceases at the characterization of "correspondence with private individuals" and does not go on to address the question of whether any of this correspondence was adopted as the basis of final action by the Cabinet. We do not have the full record before us, and consequently cannot determine the extent to which any of the correspondence was adopted in this case. To whatever extent it was, the exception in KRS 61.878(1)(i) is unavailable to the Cabinet, and the preliminary materials so adopted must be disclosed. 2
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 must 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 Mr. Lovely mentions a response to Mr. Carson's requests, but does not provide a copy of any written response. It is possible that he is referring to an oral response.
2 We recognize the need for candor and confidentiality in sensitive matters such as determining the suitability of an individual or household for foster or adoptive care. While it is possible that a specific confidentiality statute may apply to the facts of this appeal, the Cabinet has not cited one, limiting its arguments to KRS 61.878(1)(i). Since no applicable confidentiality statute is immediately apparent, our analysis in this appeal is necessarily limited to the arguments presented.