Request By:
Iran Neal, # 096219
David T. Lovely
Bryant Wheeler
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Iran Neal initiated this appeal by letter dated March 17, 2017, challenging the failure of the Cabinet for Health and Family Services -- Department for Community Based Services ("CHFS") to issue a timely written response upon receipt of his February 28, 2017, request for the March 4, 2013, "Child Protective Services (CPS) Substantiated Investigation Notification Letter, and including the January 4, 2017 Criminal Complaint against Rodney Jones Sr. forwarded to you on or about January 9, 2017[]" Mr. Neal also requested "a written complete . . . copy of all dependency, neglect and abuse petitions and their dispositions; 1 complete copy of permanency goals; 1 complete copy of the case plans . . . 1 complete copy of the progress reports and 1 complete copy of the case history pertinent to my children's mother[,] Marrissa Maria McMillen," and our children [names omitted here], as well as one copy of the "results of the January 4, 2017 Criminal Complaint against Rodney Jones Sr., and the missing persons investigation made a part thereto." Mr. Neal directed his request to Social Service Worker Bryant Wheeler. 1 Upon receiving notification of Mr. Neal's appeal from this office, attorney David T. Lovely responded on behalf of CHFS. Mr. Lovely asserted that CHFS "did all required of it, except it did so in a delayed manner." Citing KRS 61.872, Mr. Lovely advised that CHFS "has established procedures in place for requesting" public records. 2 Attached to Mr. Lovely's appeal response was a copy of Mr. Wheeler's March 16, 2017, response to Mr. Neal's February 28, 2017, request. Although Mr. Wheeler acknowledged receipt of Mr. Neal's request, he did not specify the date on which it was received. What is unrefuted is that CHFS did not issue a written response until 12 business days later, on March 16, 2017, well beyond the statutory period of three days, even allowing for possible delays in mail delivery.
From a procedural standpoint, CHFS violated the Open Records Act in failing to issue a timely written response upon receipt of Mr. Miller's request. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A "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." As the Attorney General has long recognized, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. In this case, it appears that Mr. Wheeler's belated response crossed in the mail with Mr. Neal's letter of appeal. On appeal CHFS acknowledged its failure to respond in a timely fashion, but apologized for the "minor delay" in processing Mr. Neal's request. Because CHFS is undoubtedly familiar with KRS 61.880(1), 3 the statutory language is unambiguous, and CHFS has acknowledged its error, this office will not belabor the issue.
In his March 16, 2017, response, Mr. Wheeler advised Mr. Neal that he was not authorized to release the records being sought. Consistent with KRS 61.872(4), Mr. Wheeler notified Mr. Neal that he would have to request "case information" from Jennifer Curry, Records Custodian for the Louisville office, at 908 West Broadway, 1st Floor, Louisville, Kentucky 40203. Mr. Wheeler explained with regard to Mr. Neal's two children that "neither of them have been missing as evidenced by their perfect attendance and face to face visit. The current case plan does not list your children as it only pertains to [minor's name omitted] when he was removed from his father, Terry Cooper's home." Finally, Mr. Wheeler advised Mr. Neal that he was uncertain "what criminal complaint you are referring to" as no complaint was filed against Rodney Jones, Sr. Mr. Wheeler enclosed a CHFS-305 Form, "Authorization for Disclosure of PHI," 4 for Mr. Neal to complete in order to expedite the processing of his request once Ms. Curry received it. On appeal Mr. Lovely advised that upon receipt of Mr. Neal's properly submitted request, CHFS will provide any existing nonexempt records to him.
With the exception of the admitted procedural violation, the Attorney General finds no error by CHFS in the disposition of Mr. Neal's request. KRS 61.872(4) provides that "[i]f 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. " This office has recognized that "it is incumbent on the [public agency] to make reasonable efforts to ensure that an employee who receives a misdirected open records request immediately forwards that request to the agency's official custodian for timely processing, or at a minimum notifies the requester and 'furnish [es] the name and location of the custodian of the public record. ' KRS 61.872(4)." 03-ORD-032, p. 2 (emphasis added); 12-ORD-153, following Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006)(holding otherwise "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged"); 15-ORD-136 (holding that CHFS complied with KRS 61.872(4) but, in the alternative, "might have immediately forwarded [the] request to [the appropriate individual] for timely processing and notified [the requester] , in writing, that his request was forwarded) ; see also 07-ORD-241; 16-ORD-091. In advising Mr. Neal to submit his request to Records Custodian Jennifer Curry and providing him with a mailing address, CHFS fully complied with KRS 61.872(4). Nothing else was required under existing legal authority.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 proceeding.
Footnotes
Footnotes
1 By letter directed to Mr. Neal on January 9, 2017, Assistant Jefferson County Attorney Alicia C. Awkard confirmed receipt of Mr. Neal's Criminal Complaint but advised him that her office "does not initiate actions concerning child abuse unless they are brought by [CHFS]." Ms. Awkard, the Family Court Division Chief, also indicated that Bryan Wheeler is the active CHFS social worker for the named children. Mr. Neal subsequently directed his request to Mr. Wheeler.
2 CHFS presumably intended to reference KRS 61. 876 , pursuant to which:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records , to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records.
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public .
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.
(Emphasis added.) See 16-ORD-056.
3 See, for example, 05-ORD-134, 07-ORD-030, 07-ORD-123, 08-ORD-014, 09-ORD-059, 10-ORD-080, and 12-ORD-043, all of which involved various divisions of CHFS, for the relevant analysis.
4 In relevant part, KRS 620.050(5) provides:
The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this section, shall not be divulged to anyone except:
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused[.]