December 16, 1994







IN RE: Ellen Friedman/Cabinet for Human Resources-

Division of Disability Determinations





This appeal originated in a request to inspect public records submitted by Ms. Ellen G. Friedman, an attorney for the Legal Aid Society, Inc., to the Cabinet for Human Resources, Division of Disability Determination. Those records are identi-

fied as:


Any and all HHS policy memoranda and any and all state memoranda/documents implementing policies regarding new regulations con- cerning treating physicians, consultative examinations, medical evidence and pain. Any and all training manuals and/or other documents/materials used by disability examiners in making disability deter- minations pursuant to 902 KAR 16:010.


On behalf of the Division of Disability Determinations, Mr. Keller Campbell, Jr., Director, responded to Ms. Friedman's request advising her that her request had "been forwarded to Delmer Dowling, SSA Freedom of Information (FOI) Officer, Baltimore, Maryland for response." In a subsequent letter, Mr.

Campbell explained that the information Ms. Friedman had requested was "covered under the Freedom of Information Act and, therefore, only Mr. Dowling" could respond to her re- quest. He noted that the Division of Disability Determinations acts on behalf of the Social Security Administration, and must therefore comply with federal law and regulations.


In her letter of appeal to this office, Ms. Friedman argues that although her request refers to policy memoranda of the U.S. Department of Health and Human Services, she asks for only those items which are in the possession of the Division of Disability Determinations. The remainder of her request "refers to the state's own policies and procedures in making disability determinations at the state level."


In response to this office's request for additional information, Mr. Timothy A. Sturgill, Assistant Counsel for the Cabinet's Department of Law, elaborated on the Division of Disability Determinations' position:


The Division conducts disability determinations for the SSA pursuant to 42 USC 421(a) and subpart Q of 20 CFR 404 (20 CFR 404.1602 et seq.). 20 CFR 404.1631 provides that "[t]he State will comply with the confidentiality of information, including the security of systems and records requirements described in 20 CFR part 401 and pertinent written guidelines...."


Section 30530.001 of the SSA's Program Operation Manual System (POMS) and 20 CFR 422.426 prohibits [sic] anyone other than the SSA Freedom of Information Officer from making a determination as to whether or not to release a [sic] SSA record. . . . Therefore, Ms. Friedman's request under the Open Records Act must be denied pursuant to KRS 61.878(1)(j) [now codified and herein- after referred to as KRS 61.878(1)(k)] since the Division is prohibited from releasing the requested records pursuant to the above referenced regulations.


Assuming for the sake of argument that the Division, and not SSA, should be treated as the custodian of the disputed records, Mr. Sturgill maintained that Ms. Friedman's request

could properly be denied under the Open Records Act. Mr. Sturgill argued that the HHS policy memoranda are exempt pur- suant to KRS 61.878(1)(a) because they contain recommendations concerning specific cases of specifically identified applicants for disability benefits, and disclosure would constitute a clearly unwarranted invasion of personal privacy. He characterized Ms. Friedman's request for state memoranda and documents relating to implementation of SSA policy as a request for intra-agency memoranda containing the Division's recommenda-

tions to its staff. It was his position that this portion of her request could properly be denied pursuant to KRS 61.878(1)(i), now (j). In addition, Mr. Sturgill indicated that compliance with Ms. Friedman's request would be unreason- ably burdensome to the Division, per KRS 61.872(6), and could therefore be denied. He explained that the Division does not file HHS policy memoranda, or its own internal memoranda to staff concerning procedures for implementing SSA policies, by topic. Instead, they are filed chronologically. In order to locate these records, the Division "would have to review six full file cabinets containing in excess of ten thousand pages of documents . . . ." Once located, those materials would have to be reviewed, and the excepted material redacted pursuant to KRS 61.878(4). Mr. Sturgill urged this office to issue a decision consistent with this view.


We are asked to determine if the Division of Dis- ability Determinations violated the Open Records Act in responding to Ms. Friedman's request. For the reasons set forth below, we conclude that the Division's response constituted a partial violation of the Act.


KRS 61.872(4) provides:


If the person to whom the application [to inspect public records] is directed does not have custody or control of the public records requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.


With respect to those materials requested by Ms. Friedman that were generated by the United States Department for Health and Human Services, we find that the Division properly responded under this provision by advising her that the official custodian of those materials was Mr. Delmer Dowling, Freedom of Information Officer for the Social Security Administration, whose office is in Baltimore, Maryland. This office has

previously recognized that an "agency with casual possession [of a public record] is not required to address the inspection issue if the agency with official custody also has possession."

OAG 83-342, p. 2; OAG 80-462; 94-ORD-5. We believe that these decisions are dispositive of this portion of Ms. Friedman's appeal.


In OAG 80-462 this office held that when two state agencies are in possession of the same public records, only the agency which has official custody of those records is required to address the inspection issue. At page 4, we reasoned:


The Fire District is the official custodian of the records, while the Economic Crime Unit is only a casual possessor of the records as the result of having made an investigation. The "official custodian" is the proper official to make decisions on policy concerning the release of records and to avail the agency of any exemption which it feels it has and should exercise in regard to withholding records from public inspection.


See also, 94-ORD-5 (affirming OAG 80-462 relative to designation

of the "official custodian").


In OAG 83-342, we were asked to determine whether the state's Department of Banking and Securities had properly responded to a request for documents provided to it by federal regulatory agencies by directing the requester to submit a Freedom of Information Act request to those federal agencies. At page 2 of that opinion, we observed,


The Department of Banking and Securities . . . is just the casual possessor of those documents since they are still possessed by the federal agencies. As stated in OAG 80-462, the "official custodian" is the proper official to make decisions on policy concerning the release of records.


By furnishing the requester with the name and location of the official custodian of the records, the Department satisfied the requirements of KRS 61.872(4).


Like the state Department of Banking and Securities, the Division of Disability Determinations is only a casual

possessor of the records generated by the United States Department for Health and Human Services. The Cabinet for Human Resources, through the Division of Disability Deter- minations, is responsible for implementing a program for making disability determinations under the provisions of Titles II and XVI of the Social Security Act. As Mr. Sturgill correctly notes, 20 CFR 404.1631 expressly provides that "[t]he State will comply with the confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines . . . ." 20 CFR 422.426 requires:


Except as otherwise provided by regulation, only the Director, Office of Public Inquiries, SSA, or her or his designee may determine whether to release any record in SSA's control and possession. This official is SSA's Freedom of Information Officer.


Finally, Section 30530.001 of the Program Operation Manual published by the Social Security Administration states:


The Director, Office of Information (OI), Office of Governmental Affairs, is the SSA Freedom of Information (FOI) Officer. Only the Director, OI, may determine whether to release or withhold Social Security Administration (SSA) records, including records in the regions, in response to Freedom of Information Act (FOIA) requests, except as otherwise provided by regulations.


Although several categories of records are treated as public records without a determination by the FOI officer, such as the records identified in Section 30530.001(B)(1)(a) through (i), the policy memoranda requested by Ms. Friedman do not appear to fall within any of these categories. It is clear that the Division of Disability Determinations is specifically pro- hibited from releasing any records generated by the Department of Health and Human Services except those otherwise enumer- ated. The Division, as casual possessor of the records, is therefore "not required to address the inspection issue . . . ." relative to these records. OAG 83-342, p. 2.


With respect to state memoranda implementing HHS policies and other documents used by disability examiners in making disability determinations, we find that although the Division's initial response was procedurally deficient, insofar

as Mr. Campbell failed to cite the specific exception authorizing the withholding of those memoranda, the Division properly relied on KRS 61.878(1)(i), now (j), in denying that portion of Ms. Friedman's request. We begin by noting that unlike the HHS policy memoranda, these records are clearly governed by the Open Records Act as ". . . documentation . . . which [is] prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act:


[P]reliminary memoranda in which opinions are expressed or policies formulated or recommended[.]


This exception is intended to protect the integrity of the agency's internal decision-making and policy-making process by encouraging the free exchange of opinions and ideas. It has thus been interpreted to authorize the nondisclosure of preliminary opinions and recommendations of personnel within the agency. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 90-97. The purpose underlying the exemption is discussed at page 4 of OAG 88-85 in which this office observed:


[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.


If, however, predecisional documents are incorporated into final agency action, they are not exempt.


This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. At page 659, the court reasoned:


It is the opinion of this court that subsections (g) and (h) [until recently

codified as subsections (h) and (i), and now codified as subsections (i) and (j)] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.


Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.


See also, OAG 86-64 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld as long as the reports neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency); OAG 89-34 (holding that a draft report submitted by the U.S. EPA to Kentucky's Division of Air Quality is a preliminary document, and does not lose that character by having been submitted for review and written comment of the state agency); OAG 90-97 (holding that a public officials's letter to the Parole Board, containing his opinion as to whether the Board should grant parole, is exempt from inspection unless incorporated into or made a part of the Board's final decision on the matter).


In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. Thus, in OAG 89-69 this Office held that a legal memorandum, which was originally preliminary in character, became a public record when it was incorporated into a notice of agency action. There, we observed:


The [notice of agency action] not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet as the action taken. The letter states that the memorandum had

been requested, that it was now 'in hand,' what was the recommendation, and that 'therefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.


OAG 89-69, at p. 3. Mr. Sturgill indicates that those public records which are properly subject to the Open Records Act consist of intra-agency memoranda containing the Division's "recommendations to its staff . . . ." In the absence of any evidence that these records have been incorporated into final action of the Division of Disability Determinations, we conclude that they fall squarely within the parameters of KRS 61.878(1)(j).


However, with respect to Ms. Friedman's request for "training manuals and/or other documents/materials used by disability examiners in making disability determinations pursuant to 902 KAR 61.010," we find that the Division failed to meet its statutory burden of proof in sustaining its actions. KRS 61.880(2)(c) and KRS 61.882(3) establish beyond cavil that the burden of proof in an open records appeal rests with the public agency. Neither Mr. Campbell nor Mr. Sturgill stated the Division's reasons for denying this portion of Ms. Friedman's request, or cited any exception justifying nondisclosure.


It has long been the position of this office that the mere invocation of an exception, without an adequate explana- tion of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency. In the present appeal, the Division failed to cite any exception or offer any explanation for its refusal to disclose training manuals and other materials used by disability examiners in making disability determinations pursuant to 902 KRS 16:010. This request is separate and distinct from Ms. Friedman's request for "HHS policy memoranda and state memoranda imple- menting policies . . . ." Having failed to meet its burden of proof, the Division is obligated to make any existing materials which satisfy Ms. Friedman's request available to her for inspection. We do not mean to suggest that these materials might not otherwise properly be withheld from public inspec- tion, only that the Division failed to adequately support its denial of this portion of the request.


Ms. Friedman and the Division of Disability Determina- tions may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.












Distributed to:


Hon. Timothy A. Sturgill

Assistant Counsel

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40621


Mr. Keller Campbell, Jr.

Director, Division of Disability Determinations

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40621


Hon. Ellen G. Friedman

Legal Aid Society, Inc.

425 West Muhammad Ali Boulevard

Louisville, KY 40202