Opinion
Opinion By: Gregory D. Stumbo,Office of 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 Ken Tramontin's request for "[t]he letter and envelope used to deliver by mail from Steve Birch the letter reporting the police search and seizure of 500 pages of medical records allegedly removed from this agency from my home by Steve Birch."
Jay Klein from the Cabinet's Office of Human Resource Management Cabinet responded to Mr. Tramontin's request by providing him with a copy of an anonymous letter and a copy of the envelope used to deliver the letter. The letter stated:
It has come to my attention that a law enforcement officer recently notified a third party that they observed in excess of 500 pages of medical records obtained by the Department of Disability Determinations in the home of Ken Tramontin. Mr. Tramontin is a Disability Adjudicator with the Department of Disability Determinations. This is in obviously violation of HIPAA and several cabinet policies. These records are apparently in the possession of an Attorney, Steve Birch.
In materials enclosed with his letter of appeal, Mr. Tramontin acknowledges receipt of the anonymous letter and a copy of the envelope from the Cabinet, but argues that it is not the letter shown to him by Commissioner Stephen C. Jones, Kentucky Department for Disability Determination Services, on January 8, 2007.
After receipt of notification of the appeal, Jon Klein, Assistant Counsel, Cabinet for Health and Family Services, provided this office with a response to the issues raised in the appeal. In his response, Mr. Klein explained that Jay Klein had advised him that the letter provided is the only letter of any kind in the possession of the Cabinet that addresses the subject requested by Mr. Tramontin. Attorney Klein also indicated that he had asked Commissioner Jones about the letter issue and the Commissioner stated that he was unaware of any letter responsive to Mr. Tramontin's request other than the one disclosed to Mr. Tramontin. Attorney Klein further advised that although he was unaware of any attorney practicing in Kentucky under the name Steve Birch, a Frankfort attorney named Stewart Burch allegedly represents Mr. Tramontin's wife in a divorce action and that Mr. Burch denied writing any letter to the Cabinet regarding Mr. Tramontin or any letters to Commissioner Jones.
We are asked to determine whether the responses of the Cabinet violated the Open Records Act. For the reasons that follow, we conclude they did not. Mr. Tramontin asserts the requested record exists, but the Cabinet affirmatively asserts that it does not exist.
In 06-ORD-042, at p. 3-4, a case in which there was a disparity between the parties as to the existence of records, this office explained:
. . . When an agency's denial of an open records request is postulated on the nonexistence of records, the Attorney General has traditionally taken the position that the denial does not constitute a violation of the Open Records Act insofar as the agency cannot afford the requester access to a record or records that it does not possess. See, e.g., OAG 83-111; OAG 87-112; OAG 91-112; 97-ORD-17; 01-ORD-11; 02-ORD-120.
Regarding disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
As noted above, it is not within our statutory charter to investigate in order to locate a document that the requesting party maintains exists, but which the agency states does not exist, or to otherwise resolve a dispute arising from such a disparity. Accordingly, under the facts presented, we find no violation of the Open Records Act.
Moreover, we believe that the search methods employed by the Cabinet were those which could reasonably be expected to produce a different letter, if such existed. 95-ORD-96. This is the standard by which the Attorney General measures the adequacy of an agency's search for public records. Since nothing appears "to raise the issue of good faith," we "need not go further to test the expertise of the agency, or to question its veracity . . . ." 95-ORD-96, p. 7, citing
Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). Attorney Klein in his supplemental response advised that he checked with both Jay Klein and Commissioner Jones as to the existence of any other document responsive to Mr. Tramontin's request, both indicated there was no other document than the one provided him. In addition, Attorney Klein also indicated he had checked to see if there was an attorney practicing in Kentucky under the name Steve Birch and found none. He further indicated that a Frankfort attorney named Stewart Burch allegedly represents Mr. Tramontin's wife in a divorce action and that Mr. Burch denied writing any letter to the Cabinet regarding Mr. Tramontin or to Commissioner Jones. Nothing in the record suggests a purposeful attempt on the part of the Cabinet to evade its duty to conduct an adequate search for a responsive record. We therefore affirm the Cabinet's denial of Mr. Tramontin's request on the basis of the nonexistence of any other responsive record other than the record provided.
A party aggrieved by this decision may appeal it by initiating an 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.
Kenneth Tramontin
Jay KleinAdministrative and Fiscal ServicesCabinet for Health & Family Services275 E. Main Street, 5CDFrankfort, 40621
Stephen C. JonesCommissionerDepartment for Disability Determination Services102 Athletic DriveFrankfort, KY40601
Jon KleinOffice of Legal Services Cabinet for Health & Family Services275 E. Main Street, 5W-BFrankfort, 40621