February 27, 1996

In re: Howard Founder/Workforce Development Cabinet


This matter comes to the Attorney General on appeal from the actions of the Workforce Development Cabinet in responding to Howard Founder's request to inspect his personnel file. Mr. Founder is an employee in the Cabinet's Audit Enforcement Branch. He indicates that on three separate occasions in the period between January 5, 1994, and November 17, 1995, he was denied access to his file, or portions thereof. The sequence of events described in his letter may be summarized as follows:

January 5, 1994:

Mr. Founder travels from Louisville to Frankfort. He is unable to inspect his file because it is “being reviewed by Mr. Gene Pelosi.”

January 13, 1995:

Having received assurances from Larry Moore, Branch Manager, that he will be allowed to inspect personnel files relating to him in the personnel office, as well as the “management file” maintained in an office adjoining the director's office, Mr. Founder again comes to Frankfort. He reviews the files, but is unable to locate the record he seeks. Upon returning to Louisville, he is advised by Mr. Moore that Mr. Moore maintains a third file in his office, and that that file is available for inspection in the presence of his secretary.

November 13, 1995:

Returning to Frankfort a third time, Mr. Founder makes his way from the Cabinet for Human Resources to the Workforce Development Cabinet in an unsuccessful effort to locate a record which he does not identify. At CHR, he is told that in order to inspect his records he must complete an open records request form and be “interview[ed]” by the director, who is not in. Moving on to the Workforce Development Cabinet, Mr. Founder is permitted to review his file, but cannot locate the unidentified record he seeks. Upon returning to Louisville, he submits an open records request to the director.

November 15 and 17, 1995:

In a conversation with the director, Mr. Founder is advised that interviews are not required as a precondition to inspecting records. She further advises him that the record he apparently seeks is referred to as a CHR-7. The director indicates that she will retrieve the record from his files, and forward his request to the appropriate person for a response.

In a subsequent conversation, the director reiterates that Mr. Founder's open records request has been forwarded to the appropriate person, but does not indicate that the record has been retrieved. When he at last receives the agency's response, he discovers that the record he seeks has not been provided to him.

In closing, Mr. Founder acknowledges that his problem in securing access to the particular record he seeks seems to stem from a basic misunderstanding. He aks that this office clarify his rights, or take some remedial action to correct the problem.

The issues presented in this appeal are of a procedural, rather than a substantive character. This is not to trivialize or otherwise detract from their importance. As we noted in 93-ORD-125, at page 5, the procedural requirements of the Open Records Act “are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.” For the reasons set forth below, we conclude that although Mr. Founder apparently failed to adequately preserve his rights in the event of an open records appeal when he made his requests orally, rather than in writing, the Workforce Development Cabinet violated the Open Records Act by failing to comply with the procedural requirements set forth at KRS 61.880(1). [1]

We begin by noting that neither Mr. Founder nor the Cabinet complied with the procedural requirements of the Open Records Act in the exchange that precipitated this appeal. KRS 61.872(2) imposes certain obligations on a person who wishes to inspect public records, and permits the custodian to “require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.” KRS 61.880(1) imposes corollary obligations on a public agency in responding to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Although it acted within its discretion in doing so, the Cabinet apparently elected to conduct many of its open records transactions with Mr. Founder orally. Without a written record documenting these exchanges, this office is severely handicapped in its disposition of an open records appeal. Moreover, the Cabinet is not relieved of its obligation to issue a written response to an open records request regardless of whether that request is communicated orally or in writing. Much, if not all, of the misunderstanding which lies at the heart of this appeal could have been avoided if Mr. Founder had submitted written requests to inspect specifically described documents, and the Cabinet had issued written responses to those requests. And, as noted, in the event of the appeal, this office would have had a complete record upon which to base its resolution of the dispute.

In view of the fact that the Cabinet apparently never received a written request for a CHR-7 from Mr. Founder, and therefore did not respond to that specific request, we do not reach the substantive issues in this appeal: whether the Cabinet has the record and whether the record is subject to disclosure. We urge Mr. Founder to submit a written request for the CHR-7 to the Cabinet's custodian of records. The Cabinet will, in turn, respond in writing within three business days by releasing the record to him, or denying his request on the basis of one or more of the exemptions codified at KRS 61.878(1)(a) through (l).

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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Hon. Timothy A. Sturgill

Staff Attorney

Office of General Counsel

Office of the Secretary

Workforce Development Cabinet

2nd Floor, Capital Plaza Tower

Frankfort KY 40601

Howard Founder

1750 West Gaulbert Avenue

Louisville KY 40210-1762


[1] The Workforce Development Cabinet has not denied Mr. Founder access to existing public records on the basis of KRS 61.878(1)(a) through (l), nor does the Cabinet argue that his requests place an unreasonable burden on it or are intended to disrupt its essential functions pursuant to KRS 61.872(6).