Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services violated KRS 61.880(1) and KRS 61.872(5) when it responded by form letter to Thomas Clifford's April 4, 2011, request for records relating to himself in order to secure additional time for final disposition of his request. It is the decision of this office that 07-ORD-030 and 07-ORD-123 are dispositive of the issue on appeal. At page 5 of the latter decision the Attorney General advised CHFS:
While the Attorney General cannot compel the Cabinet to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, the courts are empowered to do so, and, in the face of a pattern of noncompliance, may well elect to do so. 95-ORD-105; 96-ORD-7.
Citing 07-ORD-030, p. 6.
In supplemental correspondence directed to this office, CHFS asserted that because Mr. Clifford "appears to be the alleged perpetrator in the case, he could gain access to the requested records after submitting the completed CHFS-305 form" and prepaying for the cost of reproduction and copying. Because Mr. Clifford expressly requested copies of medical records, and 922 KAR 1:510, authorizes CHFS to impose this requirement, we find no error in CHFS's demand that he execute and return the CHFS-305 form and prepay for copies. Accord, 05-ORD-054; 05-ORD-067. We assign no error to CHFS for delays occasioned by his failure to do so, but once again encourage the agency to adopt and implement policies aimed at insuring final disposition of open records requests within the three working day statutory response time codified at KRS 61.880(1) unless it provides a detailed explanation of the cause for delays associated with particular requests and advises the requester of the earliest date the records identified in that request will be available for inspection per 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. 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.
Distributed to:
Thomas CliffordJon R. Klein