Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,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 the disposition of Steven Farmer's December 24, 2004, request for "the record indicating modification of intent of the original authors of S.O.P. 7E.3.12 . . . of the word 'and' to the word 'or' in the body of S.O.P. 7E.312 Support 4.(2)." For the reasons that follow, we find that the Cabinet violated the Act in failing to respond to Mr. Farmer's December 24 request and in failing to unequivocally state whether responsive records exist. Assuming such records exist, we find that the Cabinet properly relied on KRS 61.878(1)(i) in denying Mr. Farmer's request inasmuch as the Cabinet belatedly advised that no modification to the S.O.P. had been finalized since August 2003, and modifications currently under consideration are in the preliminary draft phase.
In a letter directed to this office following receipt of the 40 KAR 1:030 Section 2 notification of Mr. Farmer's appeal, Jon R. Klein, Assistant Counsel to the Cabinet, advised:
It is unclear to me what exactly Mr. Farmer is asking for. My best guess is that he wants to know whether Standard of Practice (SOP) 7E.3.12 has changed and, if so, how. I sent Mr. Farmer a letter dated February 25, 2005, which contained the web address to the Cabinet's SOP website. By using that web address, Mr. Farmer should be able to access all of the Cabinet's SOP and monitor any changes that occur.
Mr. Klein enclosed a copy of the referenced correspondence. He explained that S.O.P. 7E.3.12 "was last revised on 8/1/2003 according to the website . . . [and] any documentation of any discussions relating to possible changes to that S.O.P. would be preliminary and therefore are exempt from disclosure under KRS 61.878(1)(i)."
The attached correspondence reflects, inter alia, that in an undated letter addressed to Jason Moseley, Director of the Division of Policy Development, and received by the Cabinet on February 16, 2005, Mr. Farmer requested a copy of S.O.P. 7E.3.12 "as it appears in S.O.P. today." Mr. Klein responded on February 25 by advising Mr. Farmer that "all Division of Protection and Permanency S.O.P. are available online at:
http://manuals, chfs.ky.gov/dcbs_manuals/DPP/ index_dpp. asp
In closing, Mr. Klein urged Mr. Farmer to contact him if he experienced difficulties locating the S.O.P.
We find that the Cabinet did not discharge its statutory duty in responding to Mr. Farmer's December 24, 2004, request for "the record indicating modification of intent of the original authors of S.O.P. 7E.3.12 . . . of the word 'and' to the word 'or' in the body of S.O.P. 7E.3.12 Subpart 4.(2)" by notifying him, on February 25, 2005, that all Division of Protection and Permanency S.O.P.'s are available online and providing him with the website address. 1 The Cabinet's letter was neither timely nor responsive to his December 24 request. That request, which, by the Cabinet's own admission, was properly directed to then custodian of records, LaShana Harris, was clearly identified in the subject line as an open records request. The Cabinet does not deny that the request was received and offers no explanation for its failure to respond. Pursuant to KRS 61.880(1), it was incumbent on the Cabinet to issue a written response to Mr. Farmer within three business days of receipt of his request and either make arrangements for him to inspect the records, notify him of the charge for copies of the records, advise him that his request was denied, citing the relevant statutory exception and explaining its application to the records withheld, or inform him that no responsive records exist. The Cabinet's failure to do so constituted a violation of KRS 61.878(1)(i).
Turning to the substantive issue in this appeal, we find that the Cabinet's belated argument that "any documentation of any discussions relating to possible changes to that S.O.P. would be preliminary and therefore are exempt from disclosure under KRS 61.878(1)(i)" is equivocal and therefore not sufficiently responsive to Mr. Farmer's request. In 99-ORD-39, the Attorney General rejected an agency's attempt to shield from public scrutiny the existence of an investigation into allegations of sexual harassment leveled against a high ranking official by refusing to confirm or deny that an investigation was underway or had been concluded. There, we focused on our duties under KRS 61.880(2), declining to give deference to the agency's sexual harassment policy, and proceeded to an adjudication of the matter on the facts disclosed. In 01-ORD-59, we focused on an agency's duties under KRS 61.880(1), and in particular, the duty to unequivocally state that a requested record does or does not exist, and, if it exists but cannot be disclosed, the statutory basis or other circumstances justifying nondisclosure. OAG 86-38; OAG 90-26; OAG 91-101; 96-ORD-164; 97-ORD-16; 01-ORD-38. In that appeal, the circumstances consisted of the agency's inability to produce for inspection a final report because no final report had been transmitted to it by a sister agency, whose investigation was still active. While it was obvious there, as here, that the agency could not furnish that which it did not have or which did not exist, a response that did not clearly so state, we concluded, was deficient. As this office noted, an agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. Applying this analysis to the facts before us, we find that the Cabinet should have unequivocally advised Mr. Farmer that no responsive records exist if this is, in fact, the case.
Assuming arguendo that records responsive to Mr. Farmer's December 24 request do exist, we affirm the Cabinet's position that they are excluded from public inspection by operation of KRS 61.878(1)(i) . The Cabinet asserts that "discussions relating to the possible modification of S.O.P. 7E.3.12 would be preliminary" and documents generated in the course of those discussions exempt pursuant to KRS 61.878(1)(i). That exception authorized nondisclosure, inter alia, of preliminary drafts and notes. In 97-ORD-183, this office parsed the language of KRS 61.878(1)(i):
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . ." Id. at 804. [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9. (KRS 61.878(2)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. In that decision, the Attorney General held that a printout of the Treasurer's unclaimed and abandoned property list could not be withheld under authority of KRS 61.878(1)(i). See also, 98-ORD-11 (daily roster used by payroll clerk to prepare employee paychecks not exempt pursuant to KRS 61.878(1)(i)).
It is apparent that any existing records that are responsive to Mr. Farmer's request qualify for exclusion under KRS 61.878(1)(i) as a tentative version, sketch, or outline of a formal and final written product. Accord, 00-ORD-195 (incomplete faculty salary survey data, that was subject to revision, properly withheld under KRS 61.878(1)(i)). At this juncture, those records can be likened to "work papers . . . [or] yellow pads [which are] filled with outlines, notes, drafts, and doodlings[, and] which are unceremoniously thrown in the wastebasket or may in certain cases be kept in a desk drawer for future reference." OAG 78-626, p. 2. Upon finalization of the apparent modification of S.O.P. 7E.3.12, Mr. Farmer will be entitled to the new S.O.P. and any preliminary drafts, notes, or other supporting documentation that are adopted as the basis of the new S.O.P. Until the modifications to the S.O.P. are finalized, he is foreclosed from inspecting these records.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Steven FarmerP. O. Box 603Dyersburg, TN 38025-0603
LaShana HarrisRecords CustodianDepartment of Community Based ServicesCabinet for Health and Family Services275 East Main Street, 3E-GFrankfort, KY 40621
Jon KleinAssistant General CounselCabinet for Health and Family ServicesOffice of Counsel275 E. Main Street, 4W-CFrankfort, KY 40621
Footnotes
Footnotes
1 We question whether furnishing an open records requester with a website address where records responsive to his or her request can be located, in lieu of affording him or her an opportunity to inspect the records onsite or receive copies of the records by mail upon payment of a reasonable copying charge, satisfies that agency's obligations under the Open Records Act. We remind the Cabinet that the Open Records Act generally contemplates records access by means of onsite inspection or receipt of copies through the mail. KRS 61.872(3). While a requester may wish to avoid the effort associated with conducting onsite inspection, or the expense associated with payment for copies, he or she may not have access to a computer or the necessary skills to obtain the records electronically.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -