Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Jefferson County Attorney/Child Support Division and the Cabinet for Health and Family Services Department for Income Support/Child Support Enforcement violated the Open Records Act in the disposition of Samuel M. Gaddie's July 8, 2009, requests for a copy of his "original CS-71 Child Support Worksheet for the Commonwealth of Kentucky from 1990, Case No. 97FJ0094" and "a full and complete accounting statement, invoice, or bill." Although Mr. Gaddie did not include a letter of appeal identifying his objections to the manner in which his requests were handled, his July 8 request to the Cabinet contains handwritten notations indicating that he was:
Sent Accounting Statement
Not full or complete
The numbers are wrong
The information is wrong
Having reviewed his requests, and the agencies' responses thereto, we find that Mr. Gaddie's objections to alleged inaccuracies and omissions in the records disclosed to him cannot be corrected in an open records appeal. The JCAO and CHFS discharged their obligations under the Open Records Act by providing him with a complete payment history and advising him that they could not provide him with "the original CS-71 Child Support Worksheet" because neither agency possessed that record.
Mr. Gaddie has received no less than four copies of his payment history and has been advised on no less than three occasions that because the CS-71 worksheet was generated in the course of his divorce proceedings, to which neither of these agencies was a party, the JCAO and CHFS do not possess a copy of that record. Mr. Gaddie has also been advised that he can obtain a copy of the CS-71 from the attorney who represented him in his divorce or from the Jefferson County Circuit Court. His primary goal in pursuing this open records appeal is to correct inaccuracies and omissions in his payment history through the intervention of the Attorney General. This is not our role in adjudicating open records disputes.
KRS 61.880(2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
(Emphasis added.) On several occasions in the past, the Attorney General has refused to consider questions involving the accuracy and thoroughness of information found in public records disclosed to an open records requester. See 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained, and the Attorney General refused to consider this issue); 04-ORD-032 (Attorney General refuses to rule on "detail" and "verifiability" of information in records released to requester) ; see also 04-ORD-216; 05-ORD-008; 07-ORD-112. In refusing to address these issues, we have stated that questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. Simply stated, it is beyond the scope of our statutory authority to determine whether records disclosed under the Act are accurate and complete. These questions were addressed in the course of the administrative proceedings conducted in March 2010. Because he was dissatisfied with the outcome of that hearing, Mr. Gaddie could have pursued these questions in the circuit court. The Office of the Attorney General is not, however, the appropriate forum for resolution of these claims.
Nor can the Attorney General compel disclosure of a record that the responding agencies do not possess. In a line of decisions emanating from the Kentucky Supreme Court's ruling in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), the Attorney General has recognized that, absent a prima facie showing that a disputed record exists and resides in the agencies' custody, agencies are not required to "prove a negative" in denying a request based on the nonexistence of the record. Despite the fact that Mr. Gaddie makes no showing, prima facie or otherwise, that the JCAO or CHFS maintains a copy of the CS-71 from his 1990 divorce, as required in Bowling, those agencies offer plausible explanations for the nonexistence of the form within their agencies and direct Mr. Gaddie to the custodians, both public (circuit court) and private (his former attorney), most likely to possess the form. Having discharged their duty under KRS 61.872(4), 1 the JCAO and CHFS were required to do no more. We find that neither agency violated the Open Records Act in the disposition of his requests.
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.
Samuel M. GaddieJ. D. Leavell, Sr.George B. Boehnlein
Footnotes
Footnotes
1 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.
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