Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of Steven Farmer's February 18, 2005 renewed request for "the record from Comprehend, Inc. Maysville, 606 564 4016 regarding (sic) police call to the CCU to restrain [individual] of 5.14.03 See AG 04-ORD- 228 p4 'imaginary,' "non-existent" Court Order of August 19, 2003." For the reasons that follow, we find no violation of the Act.
By letter dated April 13, 2004, Randy D. Oliver, Assistant Director, Department for Mental Health and Mental Retardation Services, Division of Mental Health, responded to Mr. Farmer's April 8, 2004 request for certain reports concerning a child's treatment at Comprehend, Inc., advising:
As I mentioned to you in our telephone conversation of February 19, 2004, it is our understanding that certain court orders are in effect with this case. I also informed you that Comprehend, Inc. and this Department are bound by state and federal laws concerning client confidentiality. As such, this Department is unable to comply with your request.
During our telephone conversation I mentioned that the only option I see available to you is to attempt to obtain relief through the courts. In my estimation this remains as your primary option.
Shortly following Mr. Oliver's response, Mr. Farmer initiated the instant appeal.
After receipt of notification of the appeal and a copy of the letter of appeal, Jon R. Klein, Assistant Counsel, Office of Legal Services, provided this office with a response to the issues raised in the appeal. In his response, Mr. Klein advised that after discussing the matter with Mr. Oliver, it appeared that Mr. Oliver's response to Mr. Farmer was based on a misunderstanding of the effect of certain court orders. Mr. Klein further advised:
Following this conversation with the undersigned, Mr. Oliver wrote a letter to Mr. Farmer dated April 29, 2005 and attached with this response for the convenience of the parties. In his April 29, 2005 letter Mr. Oliver explains that, regarding Mr. Farmer's request:
Thus, Mr. Oliver's April 29, 2005 letter makes it clear that his Department has never been in possession of any documents related to [the child]. It logically follows that the Department cannot comply with Mr. Farmer's request. See 02-ORD-144, p. 3.
Since Mr. Farmer is seeking records generated by either Comprehend, Inc. in Maysville or the Maysville Police Department, he should contact those entities directly for those records. They may be contacted at:Records Custodianor :Records CustodianComprehend, Inc.Maysville Police Department611 Forest Avenue201 E. 3rd StreetMaysville, KY 41056Maysville, KY 41056Ph. (606) 564-4016Ph. (606) 564-9411
We are asked to determine whether the actions of the Cabinet relative to Mr. Farmer's requests for the records at issue here violated the Open Records Act. For the reasons that follow, we find that the actions of the agency did not violate the Act.
As explained by Mr. Klein's supplemental response to this office, Mr. Oliver's initial response to Mr. Farmer's request in 2004 was based upon a misunderstanding of effect of certain court orders. Under these circumstances, we find that any error that occurred in the initial response was due to a misunderstanding of the facts and not evidence of any intent to subvert the Open Records Act. Thus, we find no violation of the Act in this regard.
In its supplemental response, the Cabinet also advised that it did not have the requested records and provided Mr. Farmer with the name and location of the agencies that may have the records he was seeking. This was in compliance with the Open Records Act and prior decisions of this office.
Obviously, a public agency cannot afford a requester access to records that it does not have or which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, the Cabinet's actions, in advising Mr. Farmer it did not have the records he was seeking was proper and consistent with the requirements of the Open Records Act and did not constitute a violation of the Act.
Moreover, the Cabinet's action of providing Mr. Farmer with the name and address of Comprehend, Inc. in Maysville and the Maysville Police Department, agencies that might have the record he was seeking was proper and in accord with KRS 61.872(4). 1
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.
Footnotes
Footnotes
1 KRS 61.872(4) provides: "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.