Opinion
Opinion By: Jack Conway, 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 denying Laura Hatfield's August 19, 2013, request for investigative records generated by the Cabinet as a result of her complaints about a Cabinet social worker. The Cabinet denied the existence of any records responsive to Ms. Hatfield's request in a timely written response. Although the Cabinet characterized as "thorough" a two-plus year investigation that did not produce a single record, and presented confusing and conflicting accounts of that investigation, Ms. Hatfield is unable to make "a prima facie showing that such records do exist." Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). Because our review is confined to records access issues, as opposed to records creation issues, we affirm the Cabinet's denial of Ms. Hatfield's request based on the nonexistence of responsive records. Nevertheless, we cannot leave unmentioned our significant misgivings about the Cabinet's compliance with KRS 171.640 1 requiring every public agency to "cause to be made and preserved records containing adequate and proper documentation . . . designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities."
On May 8, 2013, Division of Service Regions Director Bruce T. Linder notified Ms. Hatfield that the Cabinet found no evidence to substantiate her allegations that the Cabinet social worker who was the subject of her complaint committed perjury in child custody proceedings, criminal proceedings, and workers compensation proceedings. This letter constituted final Cabinet action on a series of complaints about the social worker that Ms. Hatfield submitted to various Cabinet departments including the Office of Inspector General, the Office of Human Resource Management, the Ombudsman, the Office of Legal Services, and the Office of the Secretary. In each case, Ms. Hatfield supplemented her complaints with supporting documentation. Frustrated by the Cabinet's final action on her complaints, Ms. Hatfield submitted a request for "written records regarding [her] complaints about the allegations about" the social worker to Mona Womack, Deputy General Counsel on August 19, 2013. Earlier that month, Ms. Womack had responded to Ms. Hatfield's request to Cabinet Secretary Audrey Haynes for investigative records relating to her complaints. In the earlier response, Ms. Womack advised that "[t]he Office of Inspector General did not conduct an investigation into [Ms. Hatfield's] complaints regarding [the named employee], therefore there is no 'closed OIG investigation' and therefore no documents exist which are responsive . . . ." Ms. Womack echoed this position in her August 20 response to Ms. Hatfield's August 19 request, notifying Ms. Hatfield that "the Cabinet [did] not have documents responsive to [her] request . . . . " Dissatisfied with the Cabinet's response, Ms. Hatfield initiated this appeal.
In correspondence directed to the Office of the Attorney General after Ms. Hatfield submitted her appeal, Ms. Womack reaffirmed that "no records were generated as a result of Ms. Hatfield's complaints against [the named] Cabinet employee." She explained:
Additionally, no records exist which show that [the named employee] was interviewed and her statements compared to Ms. Hatfield's allegations. This is because [the named employee] was never interviewed as a result of Ms. Hatfield's complaints. It is apparent that Ms. Hatfield finds this difficult to believe however it is true. No internal investigation was conducted in response to Ms. Hatfield's complaints. Rather Ms. Hatfield's allegations were simply reviewed, meaning read, verbal inquiries were made, court tapes were viewed and afterwards it was the opinion of the Cabinet that there was no evidence to substantiate the allegations. This was clearly expressed to Ms. Hatfield in May 2013 in a letter from Bruce Linder, Director of Service Regions.
Quoting from her letter to Kentucky State Police Detective Jimmy Anderson in response to his request for copies of Ms. Hatfield's complaints about the named employee, Ms. Womack advised that "while no formal investigation was conducted, I have tried to thoroughly review Ms. Hatfield's complaints" by "talk[ing] with various Cabinet staff and review[ing] the tape of the May 6, 2013, Magoffin Circuit Court case," speaking with the Magoffin County Attorney, and attempting to speak with an Assistant Commonwealth's Attorney.
Pursuant to KRS 61.880(2)(c), 2 and in light of the holding in Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011), recognizing the entitlement of a requester denied access to records on the basis of the records' nonexistence "to a written explanation for their nonexistence, " this office requested additional information from the Cabinet to substantiate its position that no responsive records existed notwithstanding its claim that its undocumented two-plus year investigation was thorough. A summary of our requests and Ms. Womack's responses follows.
Request 1: Please provide a copy of any standard operating procedure, written policy, written guideline, written directive, or other documentation governing the conduct of investigations into complaints of Cabinet employee misconduct, including those which govern investigation of alleged misconduct by an employee in [the named employee's] classification.
Answer: The Cabinet addresses complaints of employee misconduct depending upon the nature of the alleged misconduct. The Cabinet has Personnel Policy 4.1 Disciplinary/Corrective Action which is based on KRS Chapter 18A and Title 101 of the Kentucky Administrative Regulations which provides for issuance of a written reprimand or major disciplinary action by a supervisor or person in the chain of command if they believe grounds exist. The manner in which the agency investigates complaints is not addressed, but Policy 4.1 presumes the Cabinet has a basis for issuing a written reprimand or requesting major discipline and thus the policy is inapplicable until the Cabinet has a basis for issuing a written reprimand or requesting major discipline.
Request 2: Please explain the difference between a formal investigation and the investigation conducted into Ms. Hatfield's complaint.
Answer: With regard to how the Cabinet investigated the complaints of Ms. Hatfield over the last two years, Ms. Hatfield's written complaints were read, the allegations were discussed with various individuals, Cabinet documents were reviewed, and sometimes outside parties were consulted at the suggestion of Ms. Hatfield. Much staff time was spent in this process. As one example, I direct your attention to the email responses issued to Ms. Hatfield from Cabinet employee Marcia Morganti. Ms. Morganti spent considerable time listening to and reading Ms. Hatfield's concerns, inquiring with Cabinet staff as well as reviewing the Cabinet's confidential child protection records. As you can see from the documents previously submitted to the Attorney General, several individuals have responded over the last two years by letter to Ms. Hatfield's concerns.
Regarding Ms. Hatfield's complaints I personally contacted the Magoffin Circuit Clerk to gather case information and request court videotapes which I and Director Bruce Linder viewed; I contacted and spoke with Greg Allen, Magoffin County Attorney, Travis Joseph, Magoffin Assistant County Attorney, and several times attempted to speak with Cameron Adams, Magoffin Commonwealth Attorney but could not reach him. Regarding Ms. Hatfield's complaints I have spoken with [the named employee], [the employee's] supervisor Jeri Conley and [the employee's] Service Region Administrator Susan Howard. I have met with Angela Hockensmith, Bruce Linder, Andrea Day and Kendrick Fisher of the Ombudsman's office and spoken with various staff in the Office of Inspector General. I have also spoken with KSP Detective Bryan Beauman after Ms. Hatfield directed us to the KSP. I have spoken with Executive Branch Ethics General Counsel John Steffen and Mary Hook of the Workers Compensation Department of the Personnel Cabinet. From these communications, it became appeared [sic] to me that Ms. Hatfield was in a broad sense repeating the same complaint to many different people and agencies and was dissatisfied with any response unless the response was that [the named employee] was being terminated from Cabinet employment.
Request 3: Given the nonexistence of any records documenting its investigation into Ms. Hatfield's allegations, how can the Cabinet characterize that investigation as thorough 3 and demonstrate compliance with KRS 171.640, requiring agencies to make and preserve "records containing adequate and proper documentation . . . designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities?"
Answer: No records were generated in investigating Laura Hatfield's complaints other than the numerous letters and emails to Ms. Hatfield responding to her complaints and a compilation of the letters and emails sent to the Cabinet and none were required to be created under KRS 171.640. That statute requires a state agency create and maintain records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Numerous people were interviewed in response to the complaints made by Ms. Hatfield and the documents submitted by Ms. Hatfield were reviewed. This comprised what has been a thorough review covering the course of at least two and a half years of Ms. Hatfield's frequent allegations.
Request 4: KRS 194A.030(1)(d) assigns the duty to "review and resol[ve] . . . citizen complaints about programs and services of the cabinet" to the Office of the Ombudsman but review and resolution of Ms. Hatfield's complaint about [the named employee] was conducted by the Office of Legal Services. Under what authority was the duty to investigate reassigned and what are the differences between an investigation into citizen complaints of alleged misconduct by a Cabinet employee conducted by the Office of the Ombudsman and an investigation into same conducted by the Office of Legal Services?
Answer: Any complaints Ms. Hatfield regarding programs and services of the Cabinet will be and were addressed by the Ombudsman and not the Office of Legal Services. The Office of the Ombudsman answers questions about Cabinet programs, investigates customer complaints and works with CHFS management to resolve them, advises Cabinet management about patterns of complaints and recommends corrective action when appropriate. The Office of the Ombudsman does not have the authority to investigate complaints related to worker conduct. The Office of the Ombudsman refers worker conduct complaints to DCBS management for review. Therefore whenever Ms. Hatfield's complaints focused on complaints about Ms. Bailey's conduct, those were referred to DCBS and eventually the Office of Legal Services. This was in part due to the frequency and duration of Ms. Hatfield's calls to the Ombudsman . . . . This was an attempt by the agency to have one office to which Ms. Hatfield directed her complaints rather than frequently disrupting the operations of several departments within the Cabinet.
Request 5: Please describe the search method employed, and the actual steps taken, to locate responsive records in the Office of Legal Services and all other organization units of the Cabinet where responsive records might reside.
Answer: [A]ll departments within the Cabinet which had any contact with Ms. Hatfield previously, or which were mentioned in her open records request including the Office of Legal Services were provided a copy of the open records request and directed to search for any records responsive to the request and provide those to the Office of Legal Services. 4
The Cabinet's responses do little to address our concerns about the nonexistence of records documenting a "thorough" investigation or its compliance with KRS 171.640. Our review, however, is statutorily confined to determining whether the Cabinet violated provisions of the Open Records Act in denying Ms. Hatfield's request for investigative records generated in the investigation(s) of her complaints about the named employee. 5 Because the Cabinet is resolute in its position that the investigation was entirely undocumented, we must affirm the denial.
Kentucky's highest court long ago recognized that the public is entitled to inspect records confirming that a public agency "promptly, responsibly, and thoroughly" investigated complaints leveled against its employees. Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) (holding that complaints against public employee "present[] a matter of unique public interest" ); Doe v. Conway, 357 S.W.3d 505, 508 (Ky. App. 2010) (recognizing that public employee investigative files are subject to disclosure "because of the importance of the public interest involved. To imply that the public should not be given the opportunity to weigh this information for itself would defeat the purpose of the Act which is to ensure accountability. This is true even if an investigation does not lead to criminal charges. Indeed, in some instances the failure to bring criminal charges may be the basis of public scrutiny"). Thus, in Board of Examiners , above at 328, the Kentucky Supreme Court observed:
The public's 'right to know' under the Open Records Act is premised on the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
In this context, the failure to maintain investigative records deprives the public of its entitlement under the Act. In addition, it deprives the complainant, as well as the employee against whom a complaint is leveled, "information necessary to protect the[ir] legal and financial rights." KRS 171.640.
The Cabinet's responses to our KRS 61.880(2) request raise numerous questions. Did Ms. Womack speak to the named employee about Ms. Hatfield's complaints or did she not? In her November 8, 2013, letter to this office, Ms. Womack states that "[the named employee] was never interviewed as a result of Ms. Hatfield's complaint." In her December 20, 2013, response to our KRS 61.880(2)(c) inquiry she stated, "Regarding Ms. Hatfield's complaints, I have spoken with [the named employee]." She identifies numerous individuals interviewed in the "thorough review covering the course of at least two and a half years," but emphasizes that "no records were generated . . . and none were required under KRS 171.640." Notwithstanding the seriousness of Ms. Hatfield's allegations, Ms. Womack and other Cabinet employees, each of whom spent "much staff time . . . in this [investigative] process," elected to rely on their memories, both individual and collective, for an accurate and complete assessment of the validity of those allegations. Because no records were generated, neither Ms. Hatfield nor the public generally, can "weigh the information" the Cabinet gathered in order to assess the Cabinet's finding that no evidence existed to substantiate Ms. Hatfield's claims. Doe v. Conway , at 508.
It is well-established that no error can be assigned to a public agency that denies a request for nonexistent records. See, e.g., 12-ORD-162 and authorities cited therein. As we observed at page 5 of OAG 86-33, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." Under the rule announced in Eplion v. Burchett , above, at 604, we can request "a written explanation for their nonexistence. " Having done so, we are by no means satisfied by the Cabinet's conflicting and "nonresponsive" responses to our requests. Nor are we satisfied by its description of the search conducted for responsive records. Ultimately, however, we cannot afford Ms. Hatfield the relief she seeks: access to records documenting the Cabinet's investigation of her complaints about the named employee where none, apparently, exists. Neither she, this office, nor the public, will ever know if the Cabinet "promptly, responsibly, and thoroughly" investigated her complaints and whether the Cabinet and the named employee are properly executing their statutory functions and indeed serving the public. Board of Examiners at 328.
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:
Laura HatfieldMona S. WomackBarbara Teague
Footnotes
Footnotes
1 The Kentucky General Assembly has found that the intent of Chapter 171, in which this statute appears, is "essential[ly] relat[ed]" to the intent of Chapter 61, as it relates to the Open Records Act. KRS 61.8715.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 Hatfield et al. v. Cabinet for Health and Family Services et al. , 5:13-CV-00222 at page 6.
4 The only reference to a Cabinet department that appears in Ms. Hatfield's August 19 request is a reference to the Office of Inspector General. Since the OIG apparently did not conduct the investigation, we trust that the Cabinet's search extended beyond the OIG.
5 KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.