14-ORD-250
December 23, 2014
In re: Mark Brengelman/Cabinet for Health and Family Services
Summary: Cabinet for Health and Family Services committed a procedural violation of KRS 61.880(1) by failing to give a detailed explanation for delaying the disposition of an open records request beyond three business days, but did not substantively violate the Open Records Act where no responsive records existed beyond those provided.
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in its disposition of attorney Mark Brengelman’s request to inspect records containing a reference to Dr. Paul A. Ebben. For the reasons that follow, we find no substantive violation of the Act by the Department.
Mr. Brengelman made three separate but related requests for records; the history is somewhat complicated. In his original request dated June 17, 2014, Mr. Brengelman asked for all records referring to “Paul A. Ebben, Psy.D., or Insight Psychological Consultants, P.S.C., or Paul Anthony Ebben, Psy.D., and Associates, between the dates of, and including, July 1, 2013, to June 15, 2014,” which were “from, to, or on behalf of” three identified individuals at the University of Louisville School of Medicine.1
The following day, June 18, Mr. Brengelman sent another request, which “replace[d] and otherwise supersede[d]” the one of the previous day. It was essentially identical except for the inclusion of additional names of individuals from whom records were sought.
Evidently two requests were made on the same day. Mr. Brengelman has provided a copy of a June 18 letter to an Elizabethtown field office with a total of 12 names, while the Cabinet has provided a copy of a June 18 letter to the Community Based Services central office with a total of 6 names. Only the first three names, the ones listed in the original June 17 request, are the same in both letters.
The initial request to the central office appears to have been faxed at 4:18 p.m. on June 17, 2014, shortly before the close of state business. It was stamped as received by Records Management on June 18, 2014. The June 18-dated letter to the central office listing six names shows that it was faxed at 4:19 p.m. on June 19, 2014. Due to an apparent clerical error, this letter bears a stamp showing it was received on May 19, 2014, by “PM Hotline.” The Cabinet claims it did not receive the third request, the June 18-dated letter to the Elizabethtown office listing twelve names, until Mr. Brengelman contacted Cabinet attorney David T. Lovely by telephone and e-mail on July 25, 2014. Mr. Brengelman, however, provides a fax confirmation sheet showing that this letter went through at 4:21 p.m. on June 19, 2014. Neither party is able to account for what happened to it after that.
The Cabinet initially failed to realize that the contents of the second letter differed from the first, and instead responded to the original request on June 23, 2014, which was the third business day after June 18. The response stated: “Pursuant to KRS 61.872(5) the files you have requested are not all readily available. The request will need to be compiled and reviewed for compliance with Kentucky open records law. The documents fulfilling your request will be available by July 1, 2014.” The Cabinet eventually noted the difference between the two requests and responded to the broader June 18 amended request on July 2, 2014.2
We find in this delay a procedural violation of KRS 61.880(1), which requires a disposition of an open records request to be made within three business days unless KRS 61.872(5) applies. The latter subsection provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(Emphasis added.) The Cabinet’s June 23 response gave no “detailed explanation of the cause … for further delay,” but merely stated that the documents “will need to be compiled and reviewed.” Accordingly, the July 2 response to the June 18 amended request was not timely under KRS 61.880(1).
In substance, the July 2 response stated: “The documents that fulfill your request are available and equal fifty-seven (57) pages.” Mr. Brengelman was told that payment of 10 cents per page must be collected before the documents were released, and it appears that he eventually obtained those records.3 There was no indication that any documents were withheld.
On July 25, 2014, after Mr. Lovely became aware of the third request on June 18 to the Elizabethtown field office, Mr. Brengelman stated by e-mail that he was “waiving the 3 day requirement under law” for the Cabinet’s response. The Cabinet issued an initial response on July 30, 2014, stating that the duplicative portions of Mr. Brengelman’s third request had already been answered and records responsive to the additional portions were being compiled and processed. The internal e-mails provided to us by the Cabinet indicate that the only additional records mentioning Dr. Ebben which were responsive to the request were copies of case evaluations performed by him.
On August 20, 2014, the Cabinet substantively responded to the third request as follows:
No releasable records exist in the Cabinet’s possession to fulfill your request. Any correspondence or mention of Dr. Ebben’s name came as part of case files that are not releasable pursuant to KRS 620.050(5), which states that the report of suspected child abuse, neglect or dependency and all information obtained by the Cabinet as a result of an investigation or assessment shall not be divulged to anyone with certain exceptions. Your letter does not identify that you fall into any of these statutory exceptions. Therefore, the Cabinet is not permitted to release to you records regarding any dependency, neglect, and abuse investigation that Dr. Paul Ebben may have been involved in, and therefore your request is denied pursuant to KRS 61.878(1)(l) as to those specific records.
Mr. Brengelman appealed to the Attorney General on October 14, 2014. He argues on appeal that he should be entitled to obtain confidential records that mention Dr. Ebben’s name because he is requesting them on behalf of Dr. Ebben and KRS 620.050 permits the release of case records to an “other … psychological … agency” with “a legitimate interest in the case.” Mr. Brengelman further states that he “does not seek records that would otherwise be exempt from [sic] KRS 620.050(5),” but only “documents and records which involve the issue of which mental health provider may be engaged to conduct an investigation or assessment” or “documents responsive to the Cabinet reflecting unknown criticisms of Dr. Ebben by other mental health providers.”
Mr. Lovely responded to the appeal on behalf of the Cabinet on October 23, 2014. He points out that Mr. Brengelman never stated in his open records requests that he represented Dr. Ebben, nor did he provide any authorization by Dr. Ebben to release the records to Mr. Brengelman. Furthermore, Mr. Lovely argues, the only records responsive to the Elizabethtown request are copies of “Dr. Ebben’s actual evaluations” that he performed in specific cases, which Mr. Brengelman stipulates that he is not requesting.
We need not reach the confidentiality issues raised by KRS 620.050, since the record does not establish that any records still sought by Mr. Brengelman exist. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized “an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . .” KRS 61.8715. Mr. Brengelman’s argument for the existence of additional records amounts to an assertion that “Dr. Ebben has reason to believe the Cabinet and unknown others have communicated amongst themselves to divert or to restrict the choice of mental health providers to conduct an investigation or assessment,” without specifying what reason he has to believe this. With nothing more concrete than this, we can find no fault with the representation that no additional responsive records existed.4 Furthermore, it appears that a diligent search was made. We therefore find no substantive violation of the Open Records Act.
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 proceedings.
Jack Conway
Attorney General
James M. Herrick
Assistant Attorney General
#441
Distributed to:
Mark R. Brengelman, Esq.
David T. Lovely, Esq.
Mr. Tony Helm
[1] Also requested on each occasion was a Memorandum of Agreement which is not the subject of this appeal.
[2] Through a clerical error, the July 2 response was incorrectly dated June 23, 2014.
[3] It appears from e-mails provided by the Cabinet that the 57 pages released included some documents making reference to Dr. Ebben in addition to the Memorandum of Agreement mentioned in note 1, supra.
[4] See also Bowling v. Lexington-Fayette Urban County Gov’t, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record).