Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services ("CHFS") violated the Open Records Act in withholding investigation and audit reports from an open investigation. We find that CHFS did not violate the Open Records Act in withholding investigation and audit reports from an open investigation.
Illya Adams-Jones submitted an open records request to CHFS, Division of Audits and Special Investigation on May 11, 2016. She requested copies of the investigation report and audit summary concerning her. Jonnie Adams-Jones also submitted a request on May 11, 2016 for copies of the investigation report and audit summary concerning her. CHFS responded to both on May 11, 2016 with substantively identical letters stating that "the records are not currently available under KRS 61.878(1)(h) . . . . Each investigation is unique and it is impossible to predict a completion date. If you wish to make another request . . . , we recommend allowing at least six months before resubmitting the request."
Illya Adams-Jones initiated this appeal on June 16, 2016. She stated that she had received an intent to terminate letter that was rescinded in September of 2015, but the Office of the Inspector General informed her that there was a continuing investigation. On June 8, 2016, she was placed on administrative leave due to allegations of Social Security fraud, but when she contacted the Social Security Administration, they informed her that there was no pending federal investigation. She further stated that "my wife and I have requested open records concerning the most recent allegations by OIG and were denied. We are appealing that decision due to the previous history of lies and skewed investigative tactics which my wife and I believe are ongoing. "
CHFS responded to the appeal on June 22, 2016, stating that Illya Adams-Jones did not make a statement to contradict CHFS' position, and "levies allegations that are inappropriate in the context of an open records appeal." Concerning the possibility of a Social Security Administration investigation, CHFS stated that "this fact has no bearing on the fact that an investigation is ongoing at the Cabinet. . . . Premature release of the information obtained during the investigation would harm the Cabinet in prospective administrative adjudication. "
KRS 61.878(1)(h) exempts from the Open Records Act:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
KRS 61.878(1)(h) exempts records that are compiled as part of investigating a statutory or regulatory violation if the release of those records would harm the prospective law enforcement action or administrative adjudication. Once the enforcement action is completed or a decision is made not to bring an enforcement action, the records are no longer exempt.
CHFS states that an investigation is currently ongoing, and that premature release of the information would harm the investigation. "The Attorney General has generally deferred to a law enforcement agency's classification of an investigation as inactive, active, or closed, fully recognizing that this office lacks authority to compel a public agency to close an investigation for Open Records purposes." 15-ORD-038. The limited record before us does not provide reason to depart from that deference. Accordingly, we find that CHFS did not violate the Open Records Act in withholding investigation reports and audits from an investigation that has not been completed.
The additional allegations levied by Illya Adams-Jones are outside the scope of an open records appeal. KRS 61.880(2)(a) provides only that "the Attorney General shall review the request and denial and issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." "Our role in an open records appeal is simply to review the request and denial and state whether a violation of the Open Records Act occurred." 16-ORD-081.
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.