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, Department for Aging and Independent Living ("DAIL") violated the Open Records Act in the disposition of Senior Attorney Leslie A. Jones' July 16, 2019, request on behalf of Kentucky Protection and Advocacy. Ms. Jones requested a copy of all correspondence, "including but not limited to letter, email, text and fax between Shannon Gadd, Commissioner, [DAIL]; Tonia Wells, Division Director, Division of Guardianship; and Shannon McCracken, Vice President, ResCare Community Living regarding the placement and removal of state wards residing in and/or receiving services through the state-funded Supports for Community Living program at CAKY [Community Alternatives of Kentucky] Somerset . . . from October 15, 2018 through March 31, 2019." Ms. Jones also requested all correspondence, regardless of the format, between Commissioner Gadd and Director Wells regarding the identical subject matter during the identical timeframe. In a timely, but otherwise deficient, response dated July 19, 2019, DAIL confirmed receipt of Ms. Jones' request. However, "given the type and volume of information" requested, DAIL stated it would take "longer than three (3) days to search for and collect the information you have requested." By letter dated July 29, 2019, DAIL supplemented its response, attaching copies of unspecified responsive public records, including "a video that was sent by text" and that DAIL forwarded to Ms. Jones via e-mail. However, DAIL stated that "[a]ny records exempt by virtue of attorney[-]client privilege or preliminary in nature have been omitted."
Based upon the following, this office finds the agency's initial response both procedurally and substantively deficient; the ultimate disposition of Ms. Jones' request by DAIL also lacked the specificity required under KRS 61.880(1) and 61.880(2)(c) and this office is unable to affirm its partial denial of the request based upon the limited evidence presented. Quoting KRS 61.880(1), Ms. Jones requested by letter dated July 31, 2019, that DAIL provide details regarding the records withheld. On the same day, DAIL briefly elaborated, stating that e-mails withheld pertained to "placement and removal of Guardianship clients [residing] in and/or receiving services through the state-funded Supports for Community Living program at CAKY Somerset[,]" i.e. , the e-mails were responsive to Ms. Jones' request. DAIL stated it was "processing this request and will respond as soon as [possible]" with regard to said e-mails. However, DAIL provided no further description of the records in response to Ms. Jones' request for specificity and she initiated this appeal by letter dated August 12, 2019, stating she had not received any further correspondence.
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 agency's initial response did not satisfy either KRS 61.880(1) or KRS 61.872(5).
Although DAIL issued a written response to Ms. Jones' request within three working days per KRS 61.880(1), that response was deficient insofar as it failed to either provide her with access to all existing responsive documents within that period of time or cite the applicable statutory exception (s) and explain how it applied to any records (or portions thereof) being withheld. In the alternative, DAIL failed to cite KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), and failed to provide a legitimate detailed explanation of the cause for delay in producing all existing responsive documents and the specific date when such documents would be made available. See 12-ORD-151; 13-ORD-035. Noticeably absent from each response by DAIL is any reference to KRS 61.872(5). Equally lacking is the statutorily required explanation of the cause for delay and the specific date required for compliance with KRS 61.872(5). 1 See 08-ORD-021. Even assuming the records being sought were "in active use, in storage or not otherwise available," DAIL did not identify which of these permissible reasons for delay applied, if any, or to what extent. See 12-ORD-211; 15-ORD-174; 16-ORD-206; 17-ORD-082. "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; 17-ORD-192. Because this office had occasion to engage in a thorough analysis of KRS 61.880(1) and KRS 61.872(5) in 17-ORD-192 and 18-ORD-179, finding that CHFS committed procedural violations in both instances, further elaboration is unwarranted here.
Upon receiving notification of Ms. Jones' appeal, CHFS attorney Jenna Davis responded on behalf of DAIL. She first acknowledged the lack of sufficient detail in the agency's initial response and its July 31 supplemental response, and explained that an internal miscommunication was partially responsible for the delay in providing further detail. However, DAIL provided minimal information regarding the nature of the information and records withheld. For the first time, DAIL indicated that "identifying information of clients residing [in] and/or receiving services at CAKY Somerset have been redacted pursuant to KRS 61.878(1)(a)," 2 quoting the statutory language without further elaboration. DAIL further advised that "certain emails" between Commissioner Gadd and/or Director Wells and CHFS attorneys representing DAIL, "as an entity within" CHFS, "have been withheld pursuant to the attorney-client privilege." Again, DAIL failed to cite KRS 61.878(1)(l), identify the privilege by reference to KRE 503(b), or provide any explanation of how it applied to records withheld as required under KRS 61.880(1). 3 Finally, DAIL briefly stated that "any and all drafts of notices and/or letters that were not incorporated into the final version of such have been withheld pursuant to KRS 61.878(1)(i) -(j) as preliminary records." Although DAIL generally referenced what are commonly referred to as the "preliminary exceptions," it provided no specific description or context by which to determine whether every document withheld constituted a preliminary draft, note, correspondence with a private individual, or memorandum that was not ultimately adopted, in whole or in part, as part of a final action, whether expressly incorporated or not. 4 Accordingly, this appeal response also lacked the specificity required under KRS 61.880(1).
The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 12-ORD-211. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records being withheld, or portions thereof, per KRS 61.880(1), in order to satisfy the burden of proof that KRS 61.880(2)(c) imposes upon public agencies. 04-ORD-106, p. 6; 17-ORD-177. Although there is no "clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6),"] this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" simply does not satisfy that burden. Id. , p. 11. "Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested," the Kentucky Supreme Court observed, "in ORA cases only the agency knows what is in the records."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). A public agency "should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of the withheld records) . . . to permit the requester to dispute the claim and the court to assess it." Id. at 852. See 14-ORD-039.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 3, the Attorney General asked DAIL to provide this office with unredacted hard copies of all existing responsive documents withheld on the basis of KRE 503(b) and KRS 61.878(1)(i) and (j), for the purpose of in camera review, in order to substantiate CHFS' denial. In addition, this office encouraged DAIL to provide any further information or context in which to review the records in camera to assist us in conclusively determining whether some or all of the records qualify for protection under KRE 503(b), or fall within the parameters of KRS 61.878(1)(i) and (j), and, if so, whether DAIL ultimately adopted the preliminary records, in whole or in part, as the basis for any final action. In exercising its authority under KRS 61.880(2)(c) , 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. See 17-ORD-192.
However, by letter dated August 30, 2019, DAIL refused to provide the records in dispute for in camera review. Because 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[,]" DAIL declined to provide this office with unredacted copies for that purpose. 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[.]" In addition to finding that CHFS did not remedy the deficiencies of its original response on appeal, as in 17-ORD-192 and 18-ORD-179, this office respectfully disagrees with its narrow interpretation of KRS 61.880(2)(c) and finds that CHFS failed to satisfy its burden of proof under KRS 61.880(2)(c) by refusing to provide this office with records for in camera review to substantiate its denial.
"The response by DAIL 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." 18-ORD-179, p. 6. 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 Cty., 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 . See KRS 446.080(4) .
Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). "The General Assembly certainly intended for the [Attorney General] to save the Court and the requesters time and costs by designating the [Attorney General] as the 'watchdog' in open records cases." The Kernel Press, Inc., d/b/a The Kentucky Kernel v. Univ. of Ky . --- S.W.3d ---, 2019 WL 2236421, at *10 (Ky. App. 2019)(agreeing that University violated the Act "when it refused to allow" the Attorney General to review the records in dispute). Thus, it "conferred upon the [Attorney General] the duty to adjudicate open records dispute[s] and, to do so, gave the [Attorney General] the ability to substantiate an agency's claims that records are exempt through an in camera review of the records requested." Id.
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; 18-ORD-179. "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." 18-ORD-179, p. 7.
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; 96-ORD-206; 04-ORD-031; 05-ORD-185; 16-ORD-113; 16-ORD-133; 16-ORD-193; 17-ORD-011; 17-ORD-221; 18-ORD-179. The Kentucky Court of Appeals unequivocally endorsed this approach in
Cabinet for Health and Family Servs. v. Todd Cty. 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 further 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 Cty. Std., Inc., 488 S.W.3d 1 at 8. See 16-ORD-161; 16-ORD-191.
Consistent with Todd Cty. Std. , the Franklin Circuit Court subsequently 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, Oct. 13, 2017). "The General Assembly certainly intended for the AG to save the Court and the requesters time and costs by designating the AG as the 'watchdog' in open records cases. It conferred upon the AG the duty to adjudicate open records dispute and, to do so, gave the AG the ability to substantiate an agency's claims that records are exempt through an in camera review of the records requested." The Kernel Press, Inc., d/b/a The Kentucky Kernel, 2019 WL 2236421, at *10. Any subversion of this authority, "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." Kentucky State Univ. , No. 17-CI-199 at 10.
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 prevail on appeal without satisfying its burden of proof under KRS 61.880(2)(c) which, in this case, it cannot do without enabling the Attorney General to review the records in camera . "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; 18-ORD-179. Compare 16-ORD-039; 17-ORD-141. Here, as on prior occasions, including 17-ORD-192 and 18-ORD-179, the Attorney General is "not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection by KRS [KRE 61.878(1)(i), (j), (l)] or any other exception." 10-ORD-079, p. 6 (citation omitted); 17-ORD-221. The refusal of DAIL to comply with the Attorney General's KRS 61.880(2)(c) request has made "review of the matter impossible leaving the [Attorney General] with no alternative but to decide that [it] must release the records[.]" The Kernel Press, Inc., d/b/a The Kentucky Kernel, 2019 WL 2236421, at *11. Consistent with KRS 61.880(2)(c), Cabinet for Health and Family Svs. v. Todd Cty. Std. , and prior decisions by this office, the Attorney General concludes that DAIL failed to satisfy its burden of justifying the partial denial of Ms. Jones' 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 The need to identify and review documents alone does not constitute a sufficiently detailed explanation as "[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; 02-ORD-217; 10-ORD-138; 12-ORD-043; 13-ORD-168; 14-ORD-047; 15-ORD-029; 18-ORD-034.
2 KRS 61.878(1)(a) permits a public agency 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); 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); Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006); 11-ORD-139; 12-ORD-149. Compare Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013); 17-ORD-269.
3 Public records may be withheld from disclosure under the attorney-client privilege in the context of an Open Records dispute if , as in Hahn v. Univ. of Louisville, 80 S.W.3d 771 (Ky. App. 2001), all of the elements of the privilege are present. See 10-ORD-177. The attorney-client privilege "does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communication must be confidential, relate to the rendition of legal services, and not fall under certain exceptions." Cabinet for Health and Family Servs. v. Scorsone, 251 S.W.3d 328, 329 (Ky. 2008); 97-ORD-127, p. 1 (citation omitted); 01-ORD-246; 19-ORD-132. Not only did DAIL fail to cite KRE 503 or KRS 61.878(1)(l), pursuant to which KRE 503(b) is deemed incorporated into the Act, it made no attempt to demonstrate that each of the required elements can be satisfied as to any of the unspecified records withheld. See 11-ORD-108; 16-ORD-064; 19-ORD-132.
4 Pursuant to KRS 61.878(1) (i) and (j), the following records are removed from application of the Act in the absence of a court order: (i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; and (j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. See City of Louisville v. Courier-Journal and Louisville Times Co. 637 S.W.2d 658 (Ky. App. 1982); Ky. State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); Univ. of Ky. v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992); Univ. of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. 2013); 19-ORD-085.
DAIL fails to recognize that, "It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes the basis for the final agency action." 16-ORD-256, p. 4; 15-ORD-067, p. 3 (citing 11-ORD-052); 19-ORD-085. "[T]he fact that none of the [records] were expressly incorporated into the final [action] does not end the inquiry." 14-ORD-181, p. 8; 19-ORD-085.
5 In 2016, the Court of Appeals further clarified the Attorney General "acts in a quasi-judicial capacity" in adjudicating appeals filed under KRS 61.880(2). Taylor, 483 S.W.3d at 857 n. 4.