NOT TO BE PUBLISHED

95-ORD-30

March 2, 1995

In re: Paul S. Tolliver/Cabinet for Human Resources

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Cabinet for Human Resources' response to Mr. Paul S. Tolliver's request for a copy of the case record material and investigation concerning an incident at Mount Holly Nursing Home, Louisville, Kentucky, involving Willis Tolliver.

By letter of November 22, 1994, to the Records Management, Cabinet for Human Resources, Mr. Tolliver requested a copy of the investigation.

On November 30, 1994, Ms. Becky Fritts, Records Officer, Cabinet for Human Resources, responded to Mr. Tolliver's request by stating that, after the records had been forwarded to her for review and redacting according to statute, they would be ready to release to him. Ms. Fritts further stated that before material regarding Willis Tolliver could be released to him, the Cabinet must receive a copy of the court order naming him as the executor of Willis Tolliver's estate or a release signed by the executor.

The Open Records Act contains specific guidelines for an agency's response to an open records request. KRS 61.880(1) provides in pertinent part:

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 action.

The response from the Cabinet was technically deficient and violated the Open Records Act to the extent that it failed to set forth the specific statutory exception authorizing the agency to withhold the records until Mr. Tolliver furnished either a copy of the court order naming him executor of Mr. Tolliver's estate or a release signed by the executor.

Accordingly, the agency violated the Open Records Act by failing to provide in the response a statement setting forth the specific statutory exception authorizing the withholding of the record. This statement should explain to Mr. Tolliver under what authority the records are being withheld.

The undersigned has contacted Ms. Fritts by telephone and she has informed this office that the Cabinet has yet to receive either a court order or release from Mr. Tolliver. She indicated that the Cabinet could not release the material until it receives a copy of one of the above. Ms. Fritts stated that once the Cabinet receives the order or release, a copy of the requested documents would be made available to Mr. Tolliver, subject to receipt of the relevant cost per page and postage as set forth in her November 30, 1994 letter.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

James M. Ringo

Assistant Attorney General

JMR:res/1633

Distributed to:

Ms. Becky Fritts

Records Officer

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40621

Mr. Paul Tolliver

412 Piney Flats Road

Piney Flats, TN 37686