July 28, 1995

In re: Kathryn R. Dutton-Mitchell/Cabinet for Human Resources- Division of Licensing and Regulation


This matter comes to the Attorney General on appeal from the actions of the Cabinet for Human Resources, Division of Licensing and Regulation, in responding to Kathryn R. Dutton-Mitchell's June 30, 1995, request to inspect records relating to various abuse and neglect investigations conducted by Licensing and Regulation in 1994. On July 12, 1995, Ms. Dutton-Mitchell received the following response from Timothy L. Veno, Director of the Division:

This is to acknowledge your request for information pertaining to a list of ARO numbers.

Your request is being processed, and a copy of available information will be forwarded to you, unless already provided in response to your earlier request for all 1994 records.

Ms. Dutton-Mitchell challenges this response.

We are asked to determine if the Division of Licensing and Regulation violated provisions of KRS 61.870 to KRS 61.884 by indefinitely postponing access to public records. For the reasons set forth below, we conclude that the Division's actions were improper under KRS 61.872(5).

KRS 61.872(5) provides:

If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so 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.

This section may be invoked only if a record is "in active use, in storage or not otherwise available . . . ." Any notifica- tion of a delay in affording access to the record in excess of three days must be accompanied by a detailed explanation of the cause and a statement of the earliest date, time, and place on which it will be available for inspection. KRS 61.872(5) does not permit an agency to postpone its decision for reasons other than those enumerated in the statute. The Division of Licensing and Regulation therefore erred in postponing access while it "processed" Ms. Dutton-Mitchell's request. The Division is directed to immediately respond to her request by affording her access to all nonexempt records identified in her letter.






Distributed to:

Mr. Tim Veno, Director

Division of Licensing and Regulation

Cabinet for Human Resources

275 East Main Street - 4th Floor East

Frankfort, KY 40621-0001

Hon. Kathryn R. Dutton-Mitchell, Attorney

Mental Health Advocacy Section

Department of Public Advocacy

100 Fair Oaks Lane - Third Floor

Frankfort, KY 40601