NOT TO BE PUBLISHED

96-ORD-207

September 30, 1996

In re: Colleen McKinley/Cabinet for Health Services

Open Records Decision

This matter comes to the Attorney General on appeal from the Cabinet for Health Services's action in response to Ms. Colleen McKinley's open records request. Ms. McKinley appeals on the ground that, as of the date of her letter of appeal, August 28, 1996, she has yet to receive a response from the agency, positive or negative.

After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, this office received a response from Mr. John H. Walker, Assistant Counsel, Office of Counsel, Cabinet for Human Resources, regarding the issues raised in the appeal. Mr. Walker advised this office that the Cabinet received Ms. McKinley's request on August 22, 1996. He supplied this office with a copy of the request dated August 20, 1996. The reverse side of the copy has a date stamp dated “Aug 22 9:54 AM `96.” Mr. Walker also attached a copy of the agency's response to Ms. McKinley's request, dated August 27, 1996. He states that by his calculations, Tuesday, August 27 was the third business day following the day of receipt of the request.

The computation of time statute, KRS 446.030 (1) (a), which would be applicable to time requirements of the Open Records Act, reads as follows:

In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included.

The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, a legal holiday, or a day on which the public office in which a document is required to be filed is actually and legally closed, in which event the period runs until the end of the next day which is not one of the days just mentioned. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

In the instant case, Mr. Walker states the open records request was received by the Cabinet on Thursday, August 22, 1996. This would be the date or day of the act after which the three day period of time begins to run. Thus, Thursday, August 22, 1996, would not be included in the three day computation. Friday, August 23, 1996, would be day one. The intermediate Saturday and Sunday are excluded from the computation. Monday, August 26, 1996, would be day two. Tuesday, August 27, 1996, would be day three, the date the Cabinet mailed its response.

We, therefore, conclude that the Cabinet was in compliance with the procedural requirements of the Open Records Act by mailing its written response to Ms. McKinley's request within three business days. KRS 61.880(1).

Although no substantive issue is raised in the letter of appeal, the documents provided by the parties present the following issues which we address by way of discussion. Ms. McKinley requested to inspect a copy of the complaint received by the Cabinet about the performance of fluoroscopic radiographic procedures at the Highlands Regional Medical Center, including the name of the informant.

In his response, Mr. Walker stated:

The complaint which initiated the agency's action was a verbal complaint received over the telephone by the Cabinet. With respect to the operation procedures for radiation producing machines and the certification of radiation equipment operators, the Cabinet for Human Services functions as a regulatory agency. See KRS 21.840 et seq.; 902 KAR 100:125. As a regulatory agency, it relies on its survey processes and communication from public spirited citizens to detect potential violation of administrative regulations on the licensure and operation of radiation producing equipment. Release of informant names would jeopardize the ability of the agency to receive information of potentially regulatory violations by placing a chill upon the interest of public spirited citizens to relate instances of alleged violations to the Cabinet. Your request for the identity of the informant must be denied pursuant to KRS 61.878(1)(a) in that disclosure of the name of informants would constitute an unwarranted invasion of the personal privacy of the informant. See also, OAG 87-82.

We conclude that the Cabinet's response to the requester here was consistent with the Open Records Act to the extent it did not have the record requested. Mr. Walker informed Ms. McKinley that the Cabinet did not have a written complaint as the complaint was a verbal one received over the telephone. Obviously, an agency cannot provide access to a record which it does not have or does not exist.

Moreover, this office and the courts of the Commonwealth have consistently held that complaints which initially spawn an investigation may not be excluded from inspection after final action is taken because the public has a right to know what complaints have been made and how they were resolved. City of Louisville v Courier- Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Mediccal Licensure v Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1984); 93-ORD-108.

It is unclear whether there were any Cabinet notations of the verbal complaint or if final action has been taken on the complaint. If so, under authority of 94-ORD-20, the Cabinet is obligated to disclose those notes as the document which spawned the investigation. In order to withhold the name of the informant under KRS 61.878(1)(a), the agency must make a particularized showing that the informant had an expectation of privacy or that the disclosure of the complainant's name would be an unwarranted invasion of his or her personal privacy which is not outweighed by the public's right to governmental information. 93-ORD-108.

Accordingly, we conclude that the Cabinet acted consistent with the Open Records Act by timely mailing its written response to Ms. McKinley within three business days as required by the 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. 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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

1039

Distributed to:

Colleen McKinley

Carey, Niemi, Skaggs, McKinley & Stout

Suite 2000

One Riverfront Plaza

Louisville KY 40202

John Walker

Assistant Counsel

Cabinet for Health Services

275 E. Main

Frankfort KY 40601