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 denying State Journal reporter Alfred Miller's July 6, 2017, request for "all records pertaining to the state's involvement with Jaxton and Kirsten Dean." For the reasons stated below, we find that the Cabinet has not established a proper basis for its denial.
On July 13, 2017, the Cabinet responded with a letter stating that "[t]he files you have requested are not readily available" 1 and representing that the compilation of the records would be complete on July 26, 2015. The Cabinet's final response on July 25, 2017, stated as follows:
The Department of Community Base[d] Services (DCBS) may possess some documentation pertaining to your above request, but pursuant to KRS 620.050(5), the report of suspected child abuse, neglect or dependency and all information obtained by the Cabinet as a result of an investigation or assessment shall not be divulged to anyone with certain exceptions. Your letter does not identify that you fall into any of these statutory exceptions. ? [Y]our request is denied pursuant to KRS 61.878(1)(l), which exempts release of records that are made confidential by enactment of Kentucky's General Assembly.
Mr. Miller's appeal was received in this office on October 3, 2017. He indicated that "2-year-old Jaxton Dean died as a result of being murdered by his mother, 26-year-old Kirsten Dean, on June 11, 2017. This would clearly seem to be a case where child abuse resulted in a child fatality. Under KRS 620.050(12)(a), the cabinet should release any records it has concerning this case."
The Cabinet responded to this appeal via an October 11, 2017, letter from legal counsel David T. Lovely. Mr. Lovely states that that the July 25 response was incorrect due to his unawareness of the existence of a fatality investigation. He further explains:
Upon receipt of this appeal, the Cabinet searched for records and discovered one previous investigation with a current investigation pending. The records of the pending investigation will be withheld by the Cabinet until the investigation has concluded pursuant to KRS 61.878(1)(h), which exempts from release records when an active investigation is ongoing and premature release would harm, "prospective law enforcement action or administrative adjudication. " Unfortunately, the Cabinet's original reliance on KRS 620.050 was not accurate because of an internal miscommunication. The Cabinet intends to produce the pending investigation with other investigation documents with some limited redactions as soon as the investigation concludes.
Thus, the Cabinet acknowledges the existence of a pending fatality investigation, along with a prior non-fatality investigation involving the same parties, which we infer is now considered part of the record in the current investigation.
The only statute the Cabinet now invokes is KRS 61.878(1)(h). This provision permits nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
To rely upon this exception, a public agency must establish three things: (1) that the records in question are "records of law enforcement agencies or agencies involved in administrative adjudication" ; (2) that the records "were compiled in the process of detecting and investigating statutory or regulatory violations"; and (3) that disclosure "would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. "
As to the first prong of the test, there is nothing in the record to show that the Cabinet is either a law enforcement agency or an agency involved in an administrative adjudication. Therefore, the Cabinet has not met its burden of proof on this first point. Even assuming this to be the case, however, and further supposing that all records at issue were compiled in the process of detecting and investigating violations, there remains the requirement of demonstrating that disclosure would harm the agency.
In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky addressed this exception to the Open Records Act in detail. The Court held that when an investigative record pertains to a prospective law enforcement action:
the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
Id. at 851. Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing ? to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.
Id. at 852. Thus, a concrete, non-speculative risk of harm must be attributed to the release of the particular records at issue. As the Cabinet has made no effort to do so, it has failed to meet its burden of proof under KRS 61.880(2)(c). Therefore, the Cabinet cannot justify nondisclosure pursuant to KRS 61.878(1)(h). 16-ORD-136. Since no other exception has been raised, we must find the Cabinet in violation of the Open Records Act.
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 proceeding.
Footnotes
Footnotes
1 This vague statement fails to comply with the requirement in KRS 61.872(5) that a delay in access to public records beyond three business days include "a detailed explanation of the cause ? for further delay." Thus, we find here a procedural violation of the Open Records Act.