23-ORD-079
April 4, 2023
In re: David McAnally/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the
Cabinet”) subverted the intent of the Open Records Act (“the Act”),
within the meaning of KRS 61.880(4), when it did not respond to a
request within five business days, and when it invoked KRS 61.872(5)
but failed to give a detailed explanation of the reason for delay and failed
to dispense with the request on the date by which it had said records
would be available for inspection.
Open Records Decision
On February 12, 2023, David McAnally (“Appellant”) requested records
relating to the selection and hiring process for seven positions in the Cabinet for
which he had applied and was not selected. In a response dated February 21, 2023,
the Cabinet stated that “the files [the Appellant] requested [were] not readily
available” and it would “need until February 27, 2023[,]” to make the records
available to the Appellant. Having received no records by March 6, 2023, the
Appellant initiated this appeal.
Under KRS 61.880(1), a public agency has five business days to fulfill or deny
a request for public records. This period may be extended if the records are “in active
use, in storage or not otherwise available,” but the agency must give “a detailed
explanation of the cause . . . for further delay and the place, time, and earliest date
on which the public record[s] will be available for inspection.” KRS 61.872(5). Here,
because the Appellant submitted his request electronically on a Sunday, it was
received by the Cabinet the following day, Monday, February 13, 2023. Thus, theCabinet was required to respond by February 20, 2023.1 Therefore, the Cabinet failed
to issue a timely response to the Appellant’s request.
Under KRS 61.880(4), a person may petition the Attorney General to review
an agency’s action if the “person feels the intent of [the Act] is being subverted by an
agency short of denial of inspection, including but not limited to . . . delay past the
five (5) day period described in [KRS 61.880(1) or] excessive extensions of time.” Here,
the Cabinet did not respond to the request within five business days. Nor did the
Cabinet give a detailed explanation of the cause for further delay when it invoked
KRS 61.872(5). Furthermore, although the Cabinet stated the earliest date on which
the records would be available for inspection, it did not make any records available
by that date.2 This Office has found that a public agency does not comply with
KRS 61.872(5) when it notifies the requester of the earliest date on which requested
records would be available but then misses its self-imposed deadline. See, e.g., 21-
ORD-011. Therefore, the Cabinet subverted the intent of the Act by delay and
excessive extensions of time, within the meaning of KRS 61.880(4), when it failed to
issue a timely response and did not make a final disposition of the Appellant’s request
on the date to which it committed when it invoked KRS 61.872(5).
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 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#107
1
Although KRS 2.110(1) recognizes the third Monday in February as the public observance of
Washington’s
Birthday,
state
offices
were
not
closed
on
February
20,
2023.
See
https://personnel.ky.gov/holidays-and-leave (last accessed April 4, 2023). Thus, February 20 was a
normal business day, not a “legal holiday” for purposes of KRS 61.880(1).
2
On appeal, the Cabinet claims it mailed responsive records to the Appellant on March 11, 2023.
However, the Appellant disputes having received any records. This Office cannot resolve disputed
issues of fact between the parties. See, e.g., 22-ORD-010.Distributed to:
Mr. David McAnally
David T. Lovely, Esq.
Elyssa S. Morris, Esq.