Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in its disposition of the request submitted by Steven J. Farmer for a copy of "Jon Klein's copy of B. J. Short's copy of Traci Brent's copy of an 'e-mail' produced at public expense sent on or about, 25 January 2005, at or about 1 p.m. EST to the OIG [Office of the Inspector General] in Lexington from Ramey-Estep Homes Inc. in Rush." Because the Cabinet is not in possession of any record which is responsive to Mr. Farmer's request, the Cabinet has complied with the Open Records Act by affirmatively indicating as much to Mr. Farmer in writing.
By letter dated May 17, 2005, Mr. Farmer initiated this appeal, arguing that "the requested records of an e-mail exist, that Mr. Klein talked with OIG on or about 8 Feb 05 and further that B. J. Short of Mr. Benvenuti's Lexington office transmitted an account, or transcript, of some electronic or tangible version of Ramey-Estep's response to OIG, on or about 25 January 05 at about 1 p.m. EST, and that Mr. Klein is currently in possession of some form of these public records." Upon receiving notification of Mr. Farmer's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the Cabinet. According to Mr. Klein, this appeal is "a follow-up to appeals in Log Number[s] 200500280 and 200500294." That being the case, Mr. Klein incorporates by reference his responses to those appeals. As further explained by Mr. Klein:
A thorough review of existing records failed to produce any documents that matched the description given in Mr. Farmer's request. In fact, there is no record of any email communications between the Lexington office of OIG and Ramey-Estep Homes, Inc., during the month of January 2005. Thus, the Cabinet is not in possession of any documents that are responsive to his request. It logically follows that the Cabinet cannot comply with Mr. Farmer's request. See 02-ORD-144, p. 3.
Because the issue presented in 05-ORD-109 is substantially similar to the issue presented by this appeal, and the same can be said of the Cabinet's response, the same outcome necessarily follows. In our view, the analysis contained in 05-ORD-109, a copy of which is attached hereto and incorporated by reference, is controlling. Assuming that the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as appears to the case here, the Cabinet fully discharged its statutory duty by notifying Mr. Farmer that no responsive records were found; nothing more is required on the facts presented. Id., p. 3.
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:
Steven J. FarmerP.O. Box 603Dyersburg, TN 38025-0603
Carrie HallRecords Management SectionDivision of Protection and PermanencyCabinet for Health and Family Services275 East Main Street, 3E-GFrankfort, KY 40621-0001
Jon R. KleinAssistant General CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 4W-CFrankfort, KY 40621