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 actions of the Office of the Mason County Attorney relative to Steven Farmer's request for a copy of a DCBS-115 "concerning an incident which occurred 11 March 2006 and putatively written up by Brookville DPP's Patricia Johnson, FS0S, on 14 March 2006"violated the Open Records Act. For the reasons that follow, we conclude that the County Attorney's actions were proper and did not violate the Act.
In his letter of appeal, Mr. Farmer asserted that he had received no response to his request.
After receipt of notification of the appeal, John F. Estill, Mason County Attorney, provided this office with a response to the issues raised in the appeal and a copy of his March 20, 2006 response letter to Mr. Farmer advising him that he was not in possession of any document as described in his request. Mr. Estill explained that, pursuant to KRS 620.040, he routinely receives reports of suspected abuse, neglect or dependency from the Cabinet for Health and Family Services and often consults with the Cabinet regarding such notifications, but does not maintain records of such reports. Finally, he further explained that he was not aware of ever receiving such report from the Cabinet's office in Bracken County, Kentucky, and instead would receive such reports from the Mason County office. In his supplemental response to this office, Mr. Estill reiterated these facts.
The responses of the Mason County Attorney affirmatively advise Mr. Farmer that his office did not have a copy of the requested DCBS-115 report. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Mason County Attorney further explained to him that he routinely received such reports from the Cabinet, but does not maintain a file of them and that he was not aware of ever receiving such a report as described by Mr. Farmer. The Mason County Attorney discharged his duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
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.