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 Hopkins County Attorney violated the Kentucky Open Records Act in denying the request submitted by Jason Thaxton to receive copies of itemized hospital bills for which Mr. Thaxton is being held responsible and "any and all documentation" generated by the courts or any state agency from 1999 to the present concerning related child support matters. With the exception of a procedural violation, this office finds no error in the disposition of Mr. Thaxton's request by the County Attorney.
In a letter received by the Child Support Enforcement Commission on May 18, 2005 (as evidenced by the certified mail receipt of record), Mr. Thaxton requested copies of the following:
# 1 - any and all documentation from the courts [and/or] child support agency or any other state agency that directed payment(s) of assistance to Kim Pointer for the minor child, [A. L. T.]. This should include anything from 1999 through the present. Also, please specify the amount that was directed for [A. L. T.] as well as for the amount of assistance directed for the other (2) minor children who were not mine, [G. P. and J. P.].
# 2 - any and all written direction from the child support office in Hopkins County or court order authorizing you to start wage assignment on me, specifically, the order that granted authority to start wage assignment.
# 3 - the letter you were supposed to send me stating you were starting wage assignment. The one I never received. (sic)
# 4 - any and all court orders or agency orders, directing me to pay a specific amount of child support to Kim Pointer.
# 5 - any and all authorization (s) ordered by the court(s) or any state agency directing reimbursement payments for the hospital bill for Kim Pointer and [A. L. T.].
# 6 - itemized hospital bills for both Kim Pointer and [A. L. T.]. I know you have these or you surely would not have jumped in and paid these bill(s) without them. If I am required to repay the hospital bills, I am entitled to know what I am paying for. (sic)
# 7 - any and all documents that are associated with this case not mentioned above.
By letter dated June 10, 2005, Meredith Holzhauser, Hopkins County Child Support Unit, advised Mr. Thaxton that upon researching his case, the Unit discovered that the issues raised by his request "were addressed" in October 2002. Attached to Ms. Holzhauser's response are copies of both Mr. Thaxton's original request dated September 6, 2002, and the response issued by Robert P. Moore, Hopkins County Attorney, on October 22, 2002. 1 In a letter received by this office on June 16, 2005, Mr. Thaxton initiated the instant appeal.
To begin, Mr. Thaxton takes issue with the belated nature of the Unit's response. Although Mr. Thaxton alleges that the agency delayed responding "deliberately and with malice," in order to prevent him from having proper documentation to present in court, the record is devoid of evidence to support such a claim. Secondly, Mr. Thaxton alleges that the Unit improperly denied his request. According to Mr. Thaxton, he received "absolutely nothing" that he requested. Attached to Mr. Thaxton's letter of appeal are copies of the referenced correspondence between the parties as well as the certified mail receipt previously identified.
Upon receiving notification of Mr. Thaxton's appeal from this office, Mr. Moore supplemented the response by his office. By way of background, Mr. Moore advises this office that Mr. Thaxton is "a non-custodial parent" and Mr. Moore's office "represents the Cabinet [for Health and Family Services] on behalf of Kimberly A. Renfrow in the collection of medical expenses incurred by the [Commonwealth] on behalf of Mr. Thaxton's child, [A. L. T.]." As observed by Mr. Moore, this matter has been litigated in Hopkins District Court, Civil Action No. 01-J-228, where the case has been active since 2001. Emphasizing that he previously provided Mr. Thaxton with all of the records requested in 2002, Mr. Moore also reiterates that he "simply was not able to identify Carol Mill[s'] most recent P1." With respect to the request which prompted this appeal, Mr. Moore observes:
It appears that Mr. Thaxton made a similar request to the State Child Support Office in Frankfort, Kentucky, on May 18th which was forwarded to us several days later. This accounts for a large part of the time lapse between the date that he sent it and the date that my office was finally able to reply. Everything that Mr. Thaxton requested in his May 18, 2005, letter had been previously provided to him by me with a transmittal letter dated October 22, 2002. Additionally, he received copies in the due course of business from either the Clerk's Office and/or the Child Support Unit as the pleadings were entered and tendered by the Court. 2
It also appears that recent interpretations of HIPAA would preclude our furnishing medical records, even of Mr. Thaxton's children, to him without some other sort of authorization.
As a "public agency" per KRS 61.870(1), the Office of the County Attorney is required to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. 3 KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) provides:
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 the person making the request, within the three (3) day period, of its decision.
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. Generally speaking, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). 02-ORD-165, p. 4. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)," neither of which was invoked here. 02-ORD-165, p. 3. 4
Failing to respond in a proper and timely fashion constitutes a clear violation of KRS 61.880(1). As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-114; 02-ORD-187. However, Mr. Thaxton admittedly directed the request at issue to the "Child Support Enforcement Commission" in Frankfort, Kentucky, and the Commission then forwarded the request to Moore's office several days later. As correctly observed by Mr. Moore on appeal, this misdirection accounts for most of the delay. Because the record does not contain sufficient information upon which to base a determination as to whether the County Attorney responded in a timely manner upon receiving Mr. Thaxton's most recent request, this office cannot conclude that Mr. Moore's office committed a procedural violation of the Act. 5
Turning to the substantive issue presented, the Child Support Unit of Mr. Moore's office researched Mr. Thaxton's case but apparently found no additional records which are responsive to his request as framed. On appeal, Mr. Moore confirms that Mr. Thaxton was previously provided with copies of "everything" that he requested, thereby implicitly indicating that no further documentation of the type requested was discovered or generated subsequent to the time when Mr. Moore's office honored his first request. Absent objective evidence to the contrary, this office has no reason to question the veracity of this assertion.
As long recognized by the Attorney General, a public agency is not required to honor a request for records that do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the Office of the County Attorney cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. To the extent that the Office failed to expressly indicate that no responsive records exist aside from those which have already been provided, its response is procedurally deficient. Under circumstances like those presented, it is "not incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a), and this office is without authority to deviate from the parameters of that provision.
Although there may be occasions when the Attorney General requests that an agency substantiate its denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated, consistent with the mandate of KRS 61.8715, further inquiry is not warranted on the facts presented. Assuming that the Unit made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the Office would have discharged its statutory duty by notifying Mr. Thaxton that no additional responsive records were found. 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38.
In closing, this office reiterates that a public agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6; 00-ORD-226. As the Attorney General has consistently observed:
. . . KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
95-ORD-47, p. 6 (emphasis added). Unless a requester such as Mr. Thaxton can explain the necessity of reproducing the same records which have already been released to him, such as loss or destruction of the records, this office does not believe that an agency such as the Office of the County Attorney must satisfy the same request multiple times. See 05-ORD-021. To the extent that Mr. Thaxton's second request mirrored his first, which Mr. Moore's office had already honored, the Office was not obligated to produce identical records again.
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.
Jason ThaxtonP. O. Box 217Bremen, KY 42325
Meredith Holzhauser Hopkins County Child Support Unit75 S. Railroad StreetMadisonville, KY 42431
Robert P. MooreHopkins County Attorney25 East Center Street - Courthouse AnnexMadisonville, KY 42431
Footnotes
Footnotes
1 Having recently signed an agreement "to pay the Commonwealth of Kentucky for my half of the responsibility for the birth of [A. L. T.]," Mr. Thaxton requested copies of the following records:
All itemized medical bills; hospital and doctor for Kim Pointer and/or [A. L. T.] from January 2000 through June 2002 for which I am being held responsible.
Any documents used for determination of how much child support was to be imposed and/or arrearages (i.e., work statements, W-2's, state schedules, etc.).
A copy of Carol Mills['] most recent P1.
In response, Mr. Moore advised Mr. Thaxton as follows:
I have not treated your request as a request under the Open Records Act since the Hopkins County Attorney's Office is exempt; however, I will treat it as a request for production of documents under the Kentucky Rules of Civil Procedure. Enclosed please find everything you requested except for a copy of Carol Mills' most recent P1. I'm not familiar with a P1 and, even if I was, it sounds as though it involved personnel records which are not discoverable.
In 93-ORD-12, this office described a P-1 as "a document, which when approved, notifies the employee of an action affecting his or her status, pay, position, classification or other condition of employment. Portions of the P-1 contain information of a personal nature within the meaning of KRS 61.878(1)(a)." Id., p. 5. Because such records are maintained by the agency of employment, Mr. Moore presumably would not have custody of Ms. Mills' P-1.
2 Contrary to Mr. Moore's implicit assertion, the fact that Mr. Thaxton has apparently received copies of responsive records from other sources does not relieve his office of the duty to provide Mr. Thaxton with copies of any nonexempt responsive records also in its possession that have not already been provided by his office. 04-ORD-059, p. 6, citing 00-ORD-16, p. 4. On several occasions, the Attorney General has expressly rejected this argument, holding that "rationale does not support nondisclosure, and is not a legally recognized basis for denying an open records request." Id., citing 99-ORD-121, p. 10. Only through full disclosure of an agency's records can a requester satisfy himself that the record is complete. Id.; 04-ORD-220.
3 In arguing that his office is not subject to the provisions of the Open Records Act, Mr. Moore presumably relies upon KRS 61.878(1)(h), pursuant to which records or information compiled by county attorneys or Commonwealth's attorneys " pertaining to criminal investigations or criminal litigation " are exempt, and remain exempt after enforcement action, including litigation, is completed or a decision is made to take no action. (Emphasis added). Accordingly, Mr. Moore's office is exempt only if the underlying litigation is criminal in nature which does not appear to be the case.
4 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.
KRS 61.874(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
5 Resolution of such factual discrepancies is beyond the scope of our review under the Open Records Act. 03-ORD-061, p. 2, citing OAG 89-81.