Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,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 denying Courier-Journal reporter Deborah Yetter's July 5, 2018, request for "copies of the following documents: All records related to the resignation of Adria Johnson as [C]ommissioner of the Department for Community Based Services [DCBS, including] any letters, memos or emails related to the resignation. " Ms. Yetter noted that she had not received any response to her nearly identical request of June 11, 2018. By letter dated July 10, 2018, attorney David T. Lovely responded on behalf of CHFS. Mr. Lovely cited KRS 61.872(5), and stated that CHFS had "compiled the records to fulfill the request. Now, the Office of Legal Services will review documentation responsive to the request for compliance with Kentucky open records law and make a definitive statement on redactions, if any. In order to prepare the documents for release, [CHFS] will need until . . . Friday, July 13, 2018."
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." For this reason, the Act "contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply." 01-ORD-140, pp. 3-4; 16-ORD-206. The only provision that authorizes postponement of access beyond three business days, KRS 61.872(5), expressly provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "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. " The undisputed facts establish that CHFS failed to issue any written response upon receipt of Ms. Yetter's initial request dated June 11, 2018. CHFS did not deny receiving the request nor did CHFS offer any explanation for its failure to respond in a timely manner. This inaction relative to Ms. Yetter's June 11, 2018, request violated KRS 61.880(1).
CHFS issued a written response within three business days of receiving Ms. Yetter's July 5, 2018, request per KRS 61.880(1), and expressly invoked KRS 61.872(5) ; CHFS also provided a date by which records would be made available, but failed to provide a sufficiently "detailed explanation," as required to successfully invoke KRS 61.872(5). See 02-ORD-217 (agency response that complying with request "will be a very time-consuming task" was not sufficiently detailed as it set forth "neither the volume of records involved nor explain[ed], in detail, the problems associated with retrieving the records implicated by the request"); 12-ORD-043; 13-ORD-168; 17-ORD-192. Merely stating that records are "in use," or "in storage," or "not otherwise available," (here, "not readily available"), does not constitute a "detailed explanation of the cause . . . for further delay." 15-ORD-029, p. 2; 16-ORD-206; 17-ORD-192. "If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless. 'Under the rules of statutory construction, no part should be construed as meaningless or ineffectual.' Lexington-Fayette Urban Cnty. Gov't v. Johnson, 280 S.W.3d 31, 34 (Ky. 2009)." 15-ORD-029, pp. 2-3; 17-ORD-192.
"Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. The only additional information that CHFS provided was that its Office of Legal Services would review the responsive documentation to determine if any redactions were necessary, a process that is required upon receipt of any request. 1 However, "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 16-ORD-206 (explanation that agency was "in the process of retrieving and reviewing potentially responsive public records" was not sufficiently detailed). See 10-ORD-138; 14-ORD-047; 17-ORD-082. CHFS issued a response that appears "to contain boilerplate language that was in no way correlated to [Ms. Yetter's] particular request. This is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1) ." 11-ORD-135, p. 2; 15-ORD-143. See 05-ORD-134, 07-ORD-123, 10-ORD-080, 12-ORD-043, 16-ORD-056, 17-ORD-192, and 17-ORD-224.
By letter directed to Ms. Yetter on July 13, 2018, General Counsel Johann F. Herklotz issued a final response on behalf of CHFS. Mr. Herklotz indicated that CHFS had previously issued "an extension letter to you detailing the need for redactions. " Citing KRS 61.878(1)(a), 2 and paraphrasing the language of the exception, CHFS observed that "[n]ames of alleged perpetrators and witnesses interviewed in connection with allegations that were ultimately found to be unsubstantiated, as well as surrounding information that could reasonably lead to identification of those individuals, has been redacted in accordance with this provision." In her July 16, 2018, letter of appeal, Ms. Yetter stated that CHFS provided her with 36 pages of documents "related to allegations of harassment and discrimination by former Commissioner Johnson" but redactions included "the names of 13 employees interviewed in their official capacity as well as titles, dates, locations of events and multiple other words and phrases." Ms. Yetter attached the redacted copies to her appeal for consideration.
Upon receiving notification of Ms. Yetter's appeal from this office, Mr. Lovely supplemented the agency's response. Mr. Lovely stated that in this case, CHFS "does not dispute the fact that the public has the right to know how [CHFS] responded to Ms. Johnson's allegations of sexual harassment and discrimination. Accordingly, [CHFS] provided its investigation and all other documents associated with Ms. Johnson's resignation. " Disclosure of the names of the alleged perpetrators and witnesses, in addition to "information which could reasonably lead to their identification, on the other hand," according to CHFS, "does nothing more to advance that purpose, especially where the allegations have been found to be unsubstantiated. " Acknowledging that none of the authorities it cited "touch specifically upon redaction of witness names," 3 CHFS argued that "facts unique to this investigation required redaction of those names, and surrounding identifying information, as well." CHFS asserted, "the allegations were directed at a specific group within [CHFS]. It is quite likely that disclosure of the witness names would, by process of elimination, lead to identification of the alleged perpetrator (s), as the name(s) of the alleged perpetrator (s) would be conspicuously absent among the witnesses interviewed. " Although "there is apparently no Kentucky authority addressing this issue," CHFS concluded, "other jurisdictions have interpreted their open records laws [which may differ from Kentucky's] to permit redaction of witness names in sexual harassment investigations."
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Attorney General asked CHFS to provide this office with unredacted hard copies of all existing responsive documents, for the limited purpose of in camera review. This office requested to review the records in order to substantiate CHFS' denial per KRS 61.880(2)(c). "The Attorney General's decision of whether or not to request additional documentation from the agency for substantiation, or a copy of the records involved, is discretionary and based on" the specific facts presented in each appeal. 17-ORD-011, p. 5; 17-ORD-221. In exercising its authority under KRS 61.880(2)(c) here, this office expressly acknowledged its obligation "to maintain the confidentiality of the records" and to "destroy the records when a final decision has been rendered" pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3.
However, by letter dated August 29, 2018, CHFS declined to comply with our KRS 61.880(2)(c) request. 4 CHFS "remains steadfast in its position that the documents were redacted in accordance with" KRS 61.878(1)(a), "and that release to any person or entity would lead to an unwarranted invasion of personal privacy. " In addition, CHFS "construes KRS 61.880(2)(c) as permissive rather than mandatory with respect to an agency's obligation to produce records to the Office of the Attorney General for in camera review." CHFS noted the absence of any "enforcement mechanism" in KRS 61.880(2), as compared to KRS 61.882(3), "the in camera review provision applicable to circuit court appeals[.]"
This response by CHFS demonstrates a fundamental misunderstanding of KRS 61.880(2)(c). Compliance with a request by the Attorney General pursuant to KRS 61.880(2)(c) is not permissive. Rather, KRS 61.880(2)(c) vests the Attorney General with discretion as to whether such a request is necessary under the circumstances presented in a particular appeal, whereas compliance by the agency is mandatory. As with any decision involving application or interpretation of a statute, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575, 577 (Ky. 1994) (citing Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962)). The Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. In the absence of a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4) . Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983).
Pursuant to 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." (Emphasis added.) Similarly, 40 KAR 1:030(3) provides, "KRS 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 ." (Emphasis added.) Referring to KRS 61.880(2)(c) and 40 KAR 1:030 § 3, this office has consistently recognized that "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[.]" 10-ORD-079, p. 5; 17-ORD-221.
In sum, the Attorney General is vested with discretion as to whether a request for in camera review of the records in dispute is necessary to determine whether a public agency has properly invoked a statutory exception. A public agency, on the other hand, has the statutory burden of justifying its denial and therefore has no such discretion. CHFS "bears the burden to rebut the strong presumption in favor of disclosure. " Com. v. Chestnut, 250 S.W.3d 655, 660 (Ky. 2008). KRS 61.880(2)(c) is facially unambiguous, providing no exceptions, and CHFS "cannot add [such language] where none exists." Id. at 661. In light of KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and KRS 61.880(2)(c), here, as on prior occasions, the Attorney General is "not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by KRS [61.878(1)(a)] or any other exception." 10-ORD-079, p. 6 (citation omitted); 17-ORD-221.
When a public agency declines to produce records that are purportedly exempt from disclosure for in camera inspection, the Attorney General's Office has repeatedly 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)." 10-ORD-079. See 05-ORD-169 (Attorney General's ability to render a decision is "severely impaired" without exercising his authority under KRS 61.880(2)(c) and 40 KAR 1:030 Section 3); 95-ORD-61; 96-ORD-206; 04-ORD-031; 05-ORD-185; 16-ORD-113; 16-ORD-133; 16-ORD-193; 17-ORD-011; 17-ORD-014. The Kentucky Court of Appeals unequivocally endorsed this approach in Cabinet for Health and Family Srvcs. v. Todd Cnty. Std., Inc., 488 S.W.3d 1 (Ky. App. 2016). In admonishing CHFS for "blatantly refusing to respond to the Attorney General's specific questions" per KRS 61.880(2)(c), the Court observed that CHFS "certainly frustrated the Attorney General's statutory review under KRS 61.880 . . ." Id. at 8.
The Court declared that a public 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 under KRS 61.880(5)." Todd Cnty. Std., Inc., 488 S.W.3d 1 at 8 (emphasis added). See 16-ORD-161 (noting the "juxtaposition of the assignment of the burden of proof to the agency and the Attorney General's authority to request additional documentation 'for substantiation' establishes" that requests made under KRS 61.880(2)(c) are neither "adversarial [n]or a form of 'advoca[cy] for the requester,'"); 16-ORD-113; 16-ORD-191. Consistent with Todd County Standard , the Franklin Circuit Court recently noted that "[t]he Attorney General's statutorily defined confidential, in camera review of substantiating documents does not constitute a public disclosure of documents." Kentucky State Univ. v. The Kernel Press, Inc. d/b/a The Kentucky Kernel, et. al. , No. 17-CI-199 (Franklin Circuit Court, Division II October 13, 2017) (copy enclosed). The Attorney General's role in the appeal process "was intended to save the Court time and costs associated with adjudication and in camera review of substantiating documents relating to Open Records requests." Id. at 10. "Any subversion of this authority," the Court observed, "inherently undermines the functioning of the Attorney General's Office, and it inhibits transparency in government operations. Therefore, disallowing the Attorney General to act in accordance with [his] statutory mandate of reviewing appeals of Open Records request[s] by requesting substantiating documents for an in camera review could only thwart the public interest of transparency in government." Id.
In asserting that KRS 61.880(2)(c) does not provide any enforcement mechanism if a public agency refuses to comply with a request for in camera review, CHFS fails to recognize that a public agency cannot otherwise satisfy its burden of proof, and therefore loses the appeal. "The Kentucky Open Records Act provides for an ' adjudicatory process ' where an individual who receives an unsatisfactory response to an open records request may appeal to the Attorney General. At the conclusion of the process, the Attorney General issues an opinion, which if not appealed to the circuit court, has the 'force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.'" Taylor v. Maxson, 483 S.W.3d 852, 857 (Ky. App. 2016), citing KRS 61.880(5)(b). Indeed, the General Assembly specifically included the word "adjudicate" in the Act to describe the duties of the Attorney General, KRS 61.880(4), and the Kentucky Court of Appeals previously held that a decision by the Attorney General "is the same as a lower court decision," if not appealed. Hunter v. Kentucky Lottery Corp. , No. 2002-CA-00033, 2003 WL 1400763, at *2 (Ky. App. 2003) (unpublished). 5
"[T]he Attorney General's duty to conduct a meaningful review and issue an informed and reasoned decision, guided by the statutorily assigned agency burden of proof" must not yield to a noncompliant agency such as CHFS. See 17-ORD-011; 17-ORD-192. Compare 16-ORD-039 ( in camera review of e-mails, including an e-mail relating to schedule of Governor Bevin, by Attorney General's Office confirmed that Governor's Office properly withheld the records under KRS 61.878(1)(i) and (j) and governing case law); 17-ORD-141 ( in camera review of e-mails confirmed that records contained recommendations and opinions). The Attorney General recognizes that he is bound to maintain the confidentiality of the records, and does not agree with CHFS' view that "disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted." 96-ORD-106, p. 5; 10-ORD-079; 17-ORD-221. Furthermore, CHFS' invocation of KRS 61.878(1)(a) to justify its noncompliance lacks merit, as compliance with KRS 61.880(2)(c) does not implicate privacy interests, let alone constitute a "clearly unwarranted invasion of personal privacy. " Accordingly, consistent with KRS 61.880(2)(c), 40 KAR 1:030 Section 3, Todd Cnty. Std., Inc. , and prior decisions of the Attorney General, this office must conclude that CHFS failed to satisfy its burden of justifying the denial of Ms. Yetters' request.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to 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 proceeding.
Footnotes
Footnotes
1 There is "nothing wrong with [CHFS's apparent] policy of processing open records requests through its legal department. . . . This policy ensures uniformity and adherence to the law. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 11-ORD-029 (unavailability of attorney to "'review the final record release'" was "legally unsupportable"); 10-ORD-151; 12-ORD-128; 15-ORD-174.
2 In the absence of a court order authorizing inspection, KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]" See Ky. Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992)(determination regarding applicability of KRS 61.878(1)(a) is an "intrinsically situational" one that can only be made within a "specific context"); Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994) (determination entails a "'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection")(citation omitted); and Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)("bright-line rules permitting or exempting disclosure are at odds with controlling precedent"), for the relevant analysis; 11-ORD-139; 12-ORD-149. Compare Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013) (reaffirming that ORA forbids "blanket" denials of but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest/incident reports).
3 Lawson v. Office of the Attorney General, 415 S.W.3d 59 (Ky. 2013);Lexington Herald-Leader Services, Inc. v. Lexington-Fayette Urban Cnty. Gov't, 297 S.W.3d 579, 584 (Ky. App. 2009).
4 Citing 02-ORD-231, CHFS argued that in camera review by this office "would serve no purpose when the Office of the Attorney General has previously taken a position identical to that of [CHFS] herein." CHFS relied upon 02-ORD-231 in support of its position that "'portions of records that contain personally identifiable information implicating significant privacy interests'" may be withheld. However, CHFS neglected to quote the entire sentence from that decision. This office held that the public agency had violated the Act in denying access to all responsive documents but further held, "This is not to say that portions of the records that contain personally identifiable information implicating significant privacy interests but unrelated to the specific allegations against [the alleged perpetrator] may not be withheld on the basis of KRS 61.878(1)(a)." (Emphasis added.) See Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); 02-ORD-231 (privacy interest of public employees disciplined for misconduct or exonerated of charges is outweighed by the public interest).
5 In 2016, the Court of Appeals further clarified the Attorney General's role is judicial, entitling him to judicial immunity when adjudicating open records appeals. See Taylor, 483 S.W.3d at 857.
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