Request By:
Steven J. Farmer
Steven Veno
Becky Conner
Jon R. Klein
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Cabinet for Health and Family Services, Division of Child Support, (Cabinet) relative to Steven J. Farmer's request for "a copy of the Kentucky Court of competent jurisdiction's Court Order on withholding [sic] - upon which Order your Agency must have claimed and certified to both Secretaries of the U.S. Treasury and Human Services; the authority to Order them to withhold [sic] money lawfully owned, and owed to: /s/ Stephen J. Farmer," violated the Open Records Act. For the reasons that follow, we conclude the agency did not violate the Act.
In his letter of appeal, dated April 1, 2008, Mr. Farmer asserted that he had submitted a request to the Cabinet on March 24, 2008. As of the date of his appeal, he indicated that he had received no response to his request.
After notification of the appeal, Jon R. Klein, Assistant Counsel, Office of Legal Services, provided this office and Mr. Farmer with a response, on behalf of the Cabinet, to the issues raised in the appeal. In his response, he advised in relevant part:
The undersigned attorney spoke with Steve Veno, Director, of the Division of Child Support, on April 8, 2008, and determined that the Division never received the request that is currently under appeal. However, further investigation revealed that Mr. Farmer made a similar request to the County Attorney in Fleming County, Kentucky, who is an agent for the Cabinet in child support matters.
In response to Mr. Farmer's request to the Fleming County Attorney's Office, that office provided Mr. Farmer with a copy of his 1991 divorce decree from Harris County, Texas which contains provisions for Mr. Farmer to pay child support for his daughter beginning on page six (6). Mr. Farmer was also provided with an administrative order entered by the State of Missouri's Interstate Collections Unit in 2005. Mr. Veno informed me that there are no orders on file from a Kentucky Court regarding Mr. Farmer's child support obligation.
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Finally, since Mr. Farmer's request is essentially a request for a Kentucky court order and the authority therefore, and it appears that no such order exists, the Cabinet has no responsive records, and the Cabinet is unable to provide that which we do not have. 02-ORD-144, p. 3.
The Cabinet's response to this office, with copy to Mr. Farmer, affirmatively advised that it had no records responsive to his request for a copy of a Kentucky court order, as apparently none exists. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The Cabinet discharged its duty under the Open Records Act by affirmatively so advising. 99-ORD-150. Thus, we find the agency's actions were proper and did not constitute a violation of the Act.
Finally, insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Farmer's March 24, 2008, open records request, and we make no finding in this regard. See 03-ORD-061.
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.