18-ORD-048
February 28, 2018
In re: Kentucky Center for Investigative Reporting/Finance and Administration
Cabinet
Summary: In refusing to provide records for in camera inspection,
the Finance and Administration Cabinet did not meet its burden to
establish its asserted exemptions, and violated the Open Records
Act.
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

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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
1 KCIR further inquired whether “procedurally if that means starting a new appeal or changing
this one.”

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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.” 11ORD-034. See also 17-ORD-169 (“As WKCC provided redacted records, this

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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., 17ORD-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

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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.
Andy Beshear
Attorney General

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Matt James
Assistant Attorney General
#45
Distributed to:
Kate Howard
Pamela Trautner
Brett R. Nolan