Request By:
Ms. Autumn F. Corns, Attorney
Office of Counsel
Cabinet for Human Resources
275 E. Main Street - 4W
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As counsel for EPI Corporation, Mr. Frank F. Chuppe has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a document identified as the "Audit Program," housed in the Cabinet for Human Resources Inspector General's Office.
You responded to Mr. Chuppe's request by letter dated March 26, 1991, in what could best be characterized as a non-denial denial. In paragraph one of your response, you stated that in your opinion" . . . the Audit Program is not a document available to the public through an open records request." You did not cite a specific statutory exemption, nor did you offer a brief explanation of how the exemption applies to the requested records, as required by KRS 61.880(1). You did, however, indicate that the Cabinet would review the audit to determine if it could be released. In closing, you stated that the documents "should be forthcoming."
Having been advised that an appeal had been filed in this matter, you issued a formal denial on April 10, 1991. In this brief response, you stated:
The Audit programs are exempt from disclosure pursuant to KRS 61.878(1)(i). The applicable federal regulation cites are found in 5 U.S.C.A. 552(b)(7)(E) and 45 C.F.R. Sec. 5.63, attached.
You offered no further explanation for the denial.
It is Mr. Chuppe's position that there is no arguable basis for withholding the document. He requests that this Office review the Cabinet's denial of his request to determine if this action was consistent with the Open Records Law. For the reasons set forth below, we conclude that your denial of Mr. Chuppe's request was improper.
OPINION OF THE ATTORNEY GENERAL
Among those public records excluded from the application of KRS 61.870 to 61.884, and subject to inspection only upon order of a court of competent jurisdiction are "records or information the disclosure of which is prohibited by federal law or regulation. " KRS 61.878(1)(i). This provision has been interpreted to exempt from public inspection student records maintained by a state university under the Buckley Amendment, 20 U.S.C.A. § 1232g.(b)(1), OAG 80-471, OAG 85-140, OAG 90-24, and job orders and related documents, identifying a specific employer, in the possession of the Kentucky Bureau for Manpower Services under 20 C.F.R. 602.18(a). OAG 84-273. We have never held, nor do we believe it permissible, to cite an exemption under the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, or a regulation citing a FOIA exemption, as the federal law or regulation prohibiting disclosure of public records under KRS 61.878(1)(i). It is therefore the opinion of the Attorney General that the Cabinet improperly withheld the requested document.
In an opinion issued in 1983, this Office opined:
The Federal Freedom of Information Act, 5 U.S.C. § 552, . . . [has] no bearing on the [open records] question being dealt with in this opinion. [That] federal statute [] deal[s] with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat [that] statute [] as though [it] were [a] state statute []. [That] statute [] make[s] no pretense of controlling state records, either to make them open or to make them closed.
OAG 83-256; OAG 80-519. This position is consistent with the rule announced by the United States Court of Appeals for the Ninth Circuit in St. Michael's Convalescent Hospital v. State of California, 643 F.2d 1369 (9th Cir. 1981). In St. Michael's , the court held that the California Department of Health Services was not an "agency" within the meaning of FOIA, and could not invoke any of its exemptions from disclosure of public records. It is instructive to quote at length:
Federal funding reaches a countless number of activities of local and state governments. To assure that the federal funds are spent for the purposes for which they were intended, extensive federal regulations are promulgated and must be complied with. However, those regulations do not convert acts of local and state governmental bodies into federal governmental acts. United States v. Orleans, 425 U.S. 807, 816, 96 S. Ct. 978, 63 L. Ed. 2d 293 (1980). '[E]xtensive, detailed and virtually day-to-day supervision' by the federal government is needed before 'agency' status could be said to attach.
St. Michael's, supra at 1374.
Although it receives federal funding and supervision for many of its myriad activities, the Cabinet for Human Resources is a state, and not a federal, agency. Its records are subject to the Kentucky Open Records Act. FOIA has no force as to state records, only the records of federal agencies. By invoking KRS 61.878(1)(i) and 5 U.S.C.A. 552(b), you have attempted to engraft onto the state act, the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other. Accordingly, your reliance on 5 U.S.C.A. 552(b)(7)(E) and 45 C.F.R. Sec. 5.63 is misplaced.
It is conceivable that the requested document is exempt under other federal legislation or another provision of the Open Records Act. However, the Cabinet has failed to sustain its burden of proving that its action was consistent with the Act. KRS 61.880(2). We therefore find that your denial of Mr. Chuppe's request was improper.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Frank Chuppe. The Cabinet has the right to challenge it, and may initiate proceedings for injunctive or declaratory relief within 30 days in the appropriate circuit court. KRS 61.880(5).