Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Cabinet for Families and Children relative to the March 7, 2003 request of Judy L. Robertson for documentation and information regarding a $ 210 reduction in the child support obligation of Larry Rader of Russell Springs, Kentucky, for the support of their son, Matthew, violated the Open Records Act. For the reasons, that follow, we find no substantive violation of the Act.
In her letter of appeal, dated March 24, 2003, Ms. Robertson indicated that as of that date she had received no response from the Cabinet.
After receipt of Notification to Agency of Receipt of Open Records Appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Jon R. Klein, Assistant Counsel, Office of General Counsel, provided this office with a response to the issues raised in the appeal. In his response on behalf of the Cabinet, Mr. Klein offered the following explanation for the agency's failure to respond to Ms. Robertson's request:
According to the enclosed address on the letter, the original request was sent to: Cabinet for Families and Children, 275 E. Main St., 4W-D, Frankfort, KY 40601. Although the ZIP code is incorrect, this is the mailing address of the Cabinet's EEO/ADA Compliance Branch. I spoke with the employee of that branch who receives the mail, who stated that she had never seen the request and there was no mail log entry for the request. She further stated that if she had received the request, she would have forwarded it to the Division of Child Support.
What actually occurred is that a person who has not yet been identified forwarded the request to the regional child support office in the Pulaski County. The request was received in the Pulaski County office on March 17, and forwarded to the Russell County Attorney who is the custodian of the requested records. (Exhibit 2).
In his response, Mr. Klein further advised that, by letter dated April 2, 2003, Howard Kent Cooper, Russell County Attorney, had provided Ms. Robertson with the information she requested. A copy of Mr. Cooper's letter was attached as Exhibit 4 of Mr. Klein's response.
We are asked to determine whether the actions of the Cabinet violated the Open Records Act. For the reasons that follow, we find that the actions of the Cabinet did not violate the Act.
As noted above, the Russell County Attorney provided Ms. Robertson with the information she requested. 40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since the requested record or information has been made available to Ms. Robertson, the appeal is moot and no decision will be rendered on this issue.
Next, we address the Cabinet's failure to timely respond to Ms. Robertson's March 10, 2003, request. In its response to the letter of appeal, the Cabinet explained that the original request had been incorrectly addressed to the Cabinet's EEO/ADA Compliance Branch, but that branch had no record of having receiving the request. The Cabinet further explained that due to an apparent clerical error, the request had been forwarded to the wrong child support office in Pulaski County and on March 17, 2003, the date it was received, it was forwarded on to the Russell County Attorney, the custodian of the requested records. Although a clerical error does not justify an untimely delay, the Cabinet went to lengths to explain the delay and acknowledged its responsibility to timely respond to open records requests. We find that error on the Cabinet's part, if any, was mitigated by the fact that upon receipt of the request by the proper custodian of records, the Russell County Attorney, Ms. Robertson was provided with the records and information she requested.
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.
Judy L. RobertsonP.O. Box 347Nancy, KY 42544
Jon KleinOffice of General CounselCabinet for Families and Children275 East Main Street, 4-W-CFrankfort, KY 40621