Opinion
Opinion By: Andy Beshear, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet ("Finance") violated the Open Records Act in withholding documents related to sexual harassment complaints on the grounds of personal privacy, protected health information, attorney-client privilege, and as preliminary. We find that since Finance refused to produce any of the disputed records for in camera inspection, it did not meet its burden to establish its asserted exemptions, and violated the Open Records Act.
On November 3, 2017, the Kentucky Center for Investigative Reporting ("KCIR") submitted an open records request to Finance. KCIR requested:
- All complaints made by state employees to your agency, or an agency under your jurisdiction, related to sexual harassment, gender/sex based discrimination or sexual assault since 1/1/2012
- Any/all summaries of those internal investigations, and the resolution of those investigations
- Any/all records of settlements related to those complaints
- Reports detailing any/all disciplinary action taken in response to those complaints, including but not limited to actions against the complainant and the subject of the complaint.
KCIR and Finance agreed to an extension of time for the request. On November 9, 2017, Finance sent an email stating that it was working on the request, that it was a large request, and that it would provide a status update by November 30. On November 29, 2017, KCIR sent an email to Finance checking on the request. Finance responded to that email on November 29, 2017, stating that it was working on the request and would need additional time. KCIR then sent emails to Finance requesting updates on December 4 and 7, 2017. Finance responded on December 8, 2017, stating that it was still in the process of gathering information and "is targeting mid-January." KCIR sent an email to Finance on January 8, 2018, asking for a more precise description of the records being gathered and a more precise time estimate. On January 29, 2018, KCIR sent an email to Finance stating that it had received no response to the January 8, 2018 email, and requested a status update as soon as possible.
KCIR initiated this appeal on January 29, 2018, alleging that Finance offered no legally permissible reason for the delay. On February 6, 2018, Finance responded to the appeal, stating that it had responded to the request. Finance stated that KCIR indicated that it "would not be adverse to dismissing the appeal as moot if the responsive records were given . . . . It is understood that Appellant would not be waiving any right to later pursue an appeal regarding the substance of the records produced or any information or records withheld as exempt from release." Finance stated that it redacted information "such as employee identifier numbers, protected health information, and attorney-client privileged communications . . . . Additionally, the Cabinet redacted names and identifying information . . . when the complaint was not found to be substantiated . . . . The identities of any individual against whom a complaint of sexual harassment . . . has been substantiated have not been withheld or redacted. " Finance attached its response to KCIR, in which it stated that it had provided responsive records, but withheld some records based on attorney-client privilege, and redacted documents based on protected health information, personal privacy, and as preliminary notes and drafts.
On February 9, 2018, under KRS 61.880(2)(c), this office asked Finance to provide the documents redacted or withheld for in camera review by February 19, 2018. On February 12, 2018, Finance sent an email to this office and KCIR stating that Finance's response to the appeal was limited to the issue of timeliness. Finance requested clarification as to why in camera review of the documents was necessary, given that KCIR had agreed to moot the issue of timeliness, and requested notification of any appeals as to the substance of the exemptions and an opportunity to respond. KCIR responded on February 12, 2018, confirming that it did agree to drop the appeal on the timeliness of the records, but indicated that it intended to ask this office "to review the records withheld and redactions, which includes the names of the accused." 1 We responded on February 14, 2018, stating that "we cannot moot a request unless all responsive documents had been provided," that KCIR could not have raised the issue of the exemptions in its initial appeal because Finance had not asserted them until the appeal, and that KCIR still requested review of the exemptions. We stated that "under these circumstances, our office proceeds with the appeal and reviews the exemptions claimed," and requested that Finance provide the records by the stated date.
Finance submitted a supplemental response on February 19, 2018. Finance again asked that the appeal be dismissed as moot because "the Cabinet made available all of its responsive and nonexempt records to the KCIR on February 6, 2018," and that "if the KCIR seeks to appeal a particular redaction or category of redactions made . . . , it should do so in a separate appeal. This provides the Cabinet with notice of the claim and a proper opportunity to respond to the substance . . . ." Finance claimed that "KCIR has only indicated that it specifically objects to a subset of the third category: the personal identifying information of an accused individual where the accusations were not substantiated, " and that its "supplemental response, therefore, addresses only that issue." Finance further argued that "the appeal must nonetheless be dismissed because the Cabinet's redactions do not violate the Open Records Act. " Specifically, Finance argued that "the Cabinet's decision to redact the names of accused individuals were not substantiated falls plainly within the exception to the Open Records Act for personal privacy . . . . Releasing the names of these individuals to the public could cause immense harm . . . ." Finance also argued that, "because the KCIR's objection is based on a category of redactions, and not a claim that the specific redactions were erroneous, there is no need to review the unredacted version of the production."
Regarding the timeliness issue, KRS 61.872(5) requires a public agency to comply with a request for records within "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. " However, KCIR has indicated that it is no longer appealing Finance's delay in responding, and so we need not address that issue.
Finance argues that the appeal "became moot when the Cabinet made its records available on February 6, 2018." 40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." However, "unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 17-ORD-169; 14-ORD-196; 09-ORD-007. An agency "cannot moot an open records appeal by making partial disclosure." 11- ORD-034. See also 17-ORD-169 ("As WKCC provided redacted records, this appeal is not moot and we were required to review WKCC's redactions, the reasons stated for the redactions, and the exemptions under which the redactions were made."); 17-ORD-137 ("As LMPD provided redacted records, this appeal is not moot and we must determine the appropriateness of the redactions made by LMPD."); 17-ORD-033 ("As NKU will be providing only redacted records, this appeal is not moot. "); 06-ORD-258 n. 1 ("Redaction of information presents a justiciable issue so this appeal could not properly be considered moot . . . ."). Accordingly, since Finance has not provided unredacted versions of all responsive records, the appeal is not moot.
In support of its argument that the appeal should be mooted, Finance cites to 14-ORD-196 for the proposition that "a timeliness appeal cannot be transformed into a substantive appeal over an agency's redactions. " However, 14-ORD-196 is distinguishable. In that decision, the public agency argued "on appeal . . . that the appeal 'should be moot . . . because the Cabinet intends to provide certain records in accordance with the provisions of the open records act." Id. We found that the appeal was not moot, and that the agency "is obligated to 'identify and review the responsive records . . . , release any that are not exempt, and assign the remainder to meaningful categories' to which a specific legal exception applies and its application explained." Id. We held that "because questions relating to the propriety of the Cabinet's invocation of an exception have not yet been reviewed under KRS 61.880(2), Ms. Hatfield may pursue a separate open records appeal with this office after the records are released to her if she disputes a claimed exception." Id. The public agency had not yet released any records or asserted any exemptions, and we found that it was obligated to do so. In this case, Finance has both released records and asserted exemptions, and the requester has requested review of those exemptions. When an agency asserts exemptions for the first time on appeal, this office proceeds to address the merits of those exemptions. See, e.g. , 17-ORD-169; 17-ORD-137; 06-ORD-258. A separate appeal is therefore not necessary to assess the propriety of those exemptions.
In its supplemental response, Finance claims that "KCIR has only indicated that it specifically objects to a subset of the third category: the personal identifying information of an accused individual where the accusations were not substantiated, " and that it would therefore only address the redactions of personal information. However, KCIR expressly stated that it intended to ask this office "to review the records withheld and redactions, which includes names of the accused." KCIR did not state that it was limiting its appeal only to the names of the accused, but it requested review of the documents, including the names of the accused. Finance additionally withheld documents based on attorney-client privilege, protected health information, personal information, and as preliminary. Finance does not address its assertion of those additional exemptions in its supplemental response, instead basing its supplemental response on a misinterpretation of KCIR's communication.
Under KRS 61.880(2)(c), "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." 40 KAR 1:030 § 3 further provides that "KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
In this case, in refusing to produce any documents for in camera review, Finance has deprived this office of any meaningful opportunity to assess the propriety of the assertion of the personal privacy exemption, or of any of the exemptions it claims. "The General Assembly has twice vested the Attorney General with the authority to require production of public records, for which a claim of exemption has been made, for in camera review. . . . We are not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection. " 10-ORD-079. When an agency refuses to produce documents that it claims are exempt for in camera inspection, we have found that "the agencies whose denials were challenged had not met their burden of proof in sustaining those denials under KRS 61.880(2)(c)." Id.; see also 17-ORD-014; 17-ORD-011; 16-ORD-161; 05-ORD-185; 95-ORD-61. An agency "cannot benefit from intentionally frustrating the Attorney General's review of an open records request; such result would subvert the General Assembly's intent behind providing review by the Attorney General under KRS 61.880(5)." Cabinet for Health & Family Servs. v. Todd Cnty. Standard, Inc., 488 S.W.3d 1, 8 (Ky. App. 2015). Accordingly, since Finance has refused to provide the documents for which it claims exemptions for in camera review, we must find that it has not met its burden to substantiate the exemptions it asserts, and has violated 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. Under KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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