Request By:
Mr. Woody Dunn, Director
Division of Licensing and Regulation
Cabinet for Human Resources
CHR Building 4E
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of November 24, 1989, James E. Ashcraft, of the Owenton News-Herald, has appealed your November 22, 1989, partial denial of his request(s) to inspect certain records of the Kentucky Cabinet for Human Resources. The records relate to complaints concerning unlicensed day care facilities. Mr. Ashcraft complains regarding the timeliness of your agency's response, and "blanking out" of names of complainants and certain interviewees, upon copies of records supplied.
KRS 61.880(2) provides, in part, that the Attorney General shall, upon request of one whose request to inspect public records has been denied, "issue an opinion stating whether an agency . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
The Cabinet for Human Resources failed to act consistent with Open Records provisions, by not explaining, in its initial response supplying copies of records, the "blanking out" of names of complainants and certain interviewees, upon copies of forms regarding complaints about possibly unlicensed day care facilities. Such deletion (blanking out) was nonetheless supported by KRS 61.878(1)(a), which permits an agency to withhold from inspection, records of a personal nature, where disclosure thereof would constitute an unwarranted invasion of personal privacy.
FACTUAL BACKGROUND
By request during a telephone conversation, apparently on November 3, 1989, confirmed by his letter of November 6, 1989, James E. Ashcraft, of the Owenton News-Herald, asked to
. . . review and copy any complaints relating to unlicensed child day care facilities in Owen County.
Mr. Ashcraft indicated that if it was too much trouble to separate such complaints from those statewide, he would appreciate the opportunity to review all such complaints received statewide.
As I understand it, by letter of November 9, 1989, you forwarded to Mr. Ashcraft, copies of some eleven "ARO-2 Investigation Report" forms, most of which were accompanied by copies of a "Memorandum in Support of Findings." Where names of complainants or interviewees were recorded upon such forms, the names were "blanked out," on copies you provided to Mr. Ashcraft.
By letter of November 13, 1989, Mr. Ashcraft stated:
It appears portions of the records I have been sent are blanked out. As these cases are closed, I believe all information is now public.
Please forward copies without deletions.
By letter of November 22, 1989, you responded to Mr. Ashcraft's November 13, 1989, request that he be supplied records without deletions. You indicated, in substance, that identities of complainants and minors, cared for at facilities involved, would not be released pursuant to KRS 61.878(1)(a). Your letter explained, again in substance, that release of identities of complainants might subject them to intimidation and be damaging to the Cabinet's regulatory process. Regarding minors in the facilities, you indicated release of their names would needlessly endanger their safety.
On January 8, 1990, the undersigned visited your office and viewed copies of records, understood to be copies of items furnished to Mr. Ashcraft. The records appeared to have names of complainants and certain interviewees "blanked out."
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
Clearly the Cabinet for Human Resources is a public agency. Its records are subject to Open Records provisions.
Mr. Ashcraft's telephoned request of November 3, 1989, and his confirming letter of November 6, 1989, stating his request in writing, were responded to by letter of November 9, 1989, transmitting copies of certain records upon which certain names (see above) had been masked. The response was thus timely, and to that extent was consistent with Open Records provisions.
The Cabinet's November 9, 1989 letter, however, made no reference to masking of certain names contained upon originals of records. The masking of names constitutes a partial denial of inspection. As such, the masking of names should have been explained in terms of a specific exception to the general rule allowing inspection (See KRS 61.880(1). In failing to do so, your agency failed to act consistent with Open Records provisions.
Mr. Ashcraft's November 13, 1989, letter, requesting copies of records without certain deletions, was received on November 17, 1989, and responded to by letter of November 22, 1989. Such response was within the three working days provided for by KRS 61.880 for an agency response to a request to inspect public records.
Aside from the procedural questions regarding timeliness of response(s), is the substantive question of whether names of complainants and interviewees were properly deleted, by masking, from copies of records regarding complaints about unlicensed day care centers. In your November 22, 1989, response to Mr. Ashcraft, you cited KRS 61.878(1)(a) as a basis for masking of the names here involved. You provided a brief explanation of how the exception (KRS 61.878(1)(a)) cited applied to the records withheld. We believe such basis and explanation is consistent with Open Records provisions. We adopt reasoning regarding denial of inspection of complainant's names set forth in OAG's 84-315 and 85-136 (copies attached), in connection with the records here involved. Accordingly we find the Cabinet for Human Resources acted consistent with Open Records provisions in its denial, based upon KRS 61.878(1)(a), of inspection of names of complainants and certain interviewees.
Both the Cabinet for Human Resources and Mr. James E. Ashcraft, may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.