Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services (CHFS) subverted the intent of the Open Records Act in its response to a request for records relating to a written reprimand. For the reasons stated below, we find no violation of the Act by CHFS in its response, but do find a violation of KRS 61.876(2) in that CHFS did not post rules and regulations concerning access to public records in a local office.
In her appeal to this office, Robin Vessels states that she is an employee of the Department for Community Based Services (DCBS), CHFS, Lagrange, Kentucky. On October 4, 2016, Ms. Vessels was given a "written reprimand" by her supervisor. According to Ms. Vessels' appeal, the written reprimand referenced statements and an email submitted by witnesses, but those statements and email were not attached with the written reprimand. On that same day, Ms. Vessels sent an email to her supervisor with the subject being: "am requesting copy of e-mail (s), statements." Her email specifically requested copies of the records referenced in her written reprimand and she concluded her email with: "If I have to obtain these records through an 'Open Records Request,' please let me know to whom I should direct the request." Ms. Vessels' appeal further states: "Before sending this e-mail to my supervisor, I did look to see if there was a display of CHFS' rules and regulations pertaining to public records in a prominent location accessible to the public. There was -- and is -- no such display. "
Later that same day, Ms. Vessels received an email from her supervisor:
Per your request to view the complaint statements, I have scanned and included those in this email. But please understand that you are not to retaliate against anyone for performing their job duties, cooperating with an administrative investigation, giving witness statements or filing a complaint. This means you should not discuss it with anybody, in any form or fashion, outside of your supervisors.
Ms. Vessels went on to cite the language of KRS 61.880(4) 1 for the contention that that it was a violation of the Open Records Act to place conditions on what she could do with the records that were provided to her. Ms. Vessels also claimed that "CHFS attempted to null and void my 1st Amendment rights, my 14th Amendments rights, and laws enacted by the General Assembly of the Commonwealth of Kentucky." She then posited eight questions regarding CHFS' response to her request for records and the lack of a display of CHFS' rules and regulations pertaining to public records.
Mona S. Womack, Deputy General Counsel, Office of Legal Services, CHFS, responded to the appeal on behalf of CHFS. She explained that the supervisor's comments were trying to say that the records should not be used as a tool for retaliation against those individuals who made the complaints. She also stated that the "Cabinet in no way attempted to null or void any rights of Ms. Vessels. Perhaps the supervisors' comments could have been made clearer and for that we certainly apologize." Ms. Womack requested that the appeal be dismissed as Ms. Vessels had been provided the records she requested.
In past appeals, this office has found that agencies have subverted the intent of the Open Records Act in numerous ways. See , 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-004 (Paintsville Utilities subverted the intent of the Act in delaying access to monthly invoices for insurance premiums for a ten-year period for a period of nine and one-half weeks); 13-ORD-053 (Library Board subverted the intent of the Act in failing to provide timely access to records pertaining to building renovations); 14-ORD-040 (City of Taylorsville both violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay and identify a specific date when requested invoices would be produced and subverted the intent of the Act in delaying access for nearly two months); 08-ORD-263 (City of California subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by imposing an excessive copying fee of $ 0.25 for each page); 16-ORD-083 (Education Professional Standards Board subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), by imposing costs beyond a reasonable copying fee and postage for production of documents); and 08-ORD-160 (Louisville Metro Police Department subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), by requiring requester to provide the date of birth or social security number of the person whose arrest report was sought).
We have reviewed the comments from Ms. Vessels' supervisor and detect no action that subverted the intent of the Open Records Act in any of the ways set forth in the decisions listed above, nor in any similar manner to those violations. Ms. Vessels was provided the records she requested on the same day she requested them, and the cautions stated by her supervisor regarding discussing those records did not restrict her access to those records. We find that CHFS did not subvert the intent of the Open Records Act in issuing workplace restrictions on Ms. Vessels' conduct when it provided the requested records. The authority of the Office of the Attorney General in reviewing Open Records appeals does not encompass the authority to rule on claims involving Ms. Vessel's rights under the 1st and 14th Amendments.
The only other justiciable issue in Ms. Vessels' appeal is her claim that there was no posting of the agency's rules or regulations regarding access to public records in the La Grange DCBS office. Pursuant to KRS 61.876(1) 2 each agency must adopt rules and regulations regarding access to public records and those rules and regulations must be posted pursuant to KRS 61.876(2): "Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public." In 16-ORD-056, this office addressed a violation by CHFS in failing to post the pertinent rules and regulations at a local office:
The Attorney General has long recognized that KRS 61.876, upon which [the requester] implicitly relied, is aimed at ensuring that each public agency "will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request." 94-ORD-12, p. 4. Even if CHFS has fully complied with KRS 61.876(1), which is unclear from the record, its failure to display the rules and regulations adopted thereunder in a prominent location accessible to the public is a violation of KRS 61.876(2). See 11-ORD-029; 13-ORD-035.
Ms. Womack's response to this appeal did not address the issue of whether CHFS office has adopted the rules and regulations as required by KRS 61.876(2) or whether those rules and regulations were posted at the Lagrange office. Having no other evidence to the contrary, we determine that CHFS violated KRS 61.876(2) by failing to post its rules and regulations concerning access to public records at the Lagrange office. Ms. Vessels' other complaints 3 need not be addressed as she was provided the records on the same day that she made the request.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(4) states: "If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied."
2 KRS 61.876(1) states that: "Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:(a) The principal office of the public agency and its regular office hours;(b) The title and address of the official custodian of the public agency's records;(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;(d) The procedures to be followed in requesting public records.
3 Ms. Vessels also complained that the supervisor's response indicated that she had requested to "view" the documents. We find that this complaint was moot at the time it was made as the requested records were provided with the supervisor's response. Ms. Vessels' complaint that she was not provided the name of the person to whom she should direct her request was also made moot when she was provided the requested records.