Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Artis Anderson appeals the Cabinet for Health and Family Services' December 4, 2015, request for "records establishing that [a person identified by name] went incompetent prior to May 11th." Through a series of delays and misunderstandings, for which the Cabinet accepts responsibility, Mr. Anderson did not receive a final response to his request prompting him to initiate this appeal. 1
In response to Mr. Anderson's appeal, the Cabinet advised that "[i]ncompetence is a legal determination made by a judge in accordance with a physician's medical examination, pursuant to processes laid out in KRS Chapter 387." With specific reference to the person identified in Mr. Anderson's request, the Cabinet explained that "this determination is still pending in a court of law" and that, therefore, "no records would exist 'establishing' incompetence until [the person] is actually determined incompetent (disabled)." 2 The Cabinet raises additional arguments in support of its denial of Mr. Anderson's requests, but we find this argument controlling.
It is well established that a public agency does not violate the Open Records Act when it denies a request for nonexistent records. Thus, in 97-ORD-18 we recognized that the "'right to inspect public records' attaches only after those records have been 'prepared, owned, used, in the possession of, or retained by a public agency' . No such right attaches for records that have not yet come into existence." Absent any evidence supporting Mr. Anderson's claim that the disability (competence) determination had been made as of the date of his request, we find that further analysis is unnecessary. Compare,
Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011) (requester entitled to explanation for jailer's inability to produce previously existing records that were removed by the jailer's predecessor in office). With the exception of the procedural violations that it acknowledged, the Cabinet did not violate the Open Records Act in denying Mr. Anderson's request.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. The Cabinet employee to whom Mr. Anderson's request was misdirected failed to take appropriate steps to ensure a timely written response to his records request.
2 There is an incongruity between the Cabinet's January 4 statement that "no records exist 'establishing' incompetence" until a determination is made by a court of law and a statement that appears in its "Answers to Respondent's [Mr. Anderson's] Interrogatories," which are attached to Mr. Anderson's letter of appeal. At page 4, Interrogatory No. 19, Mr. Anderson asks the Cabinet:
"What medical reports do you have that ascertain [sic] that [the named individual] was mentally incompetent on or before May 11, 2015?"
Answer: "Patricia Biggerstaff[, Social Service Clinician I, Department of Community Based Services, Family Support, Protection and Permanency] has those records."
In Eplion v. Burchett, 354 S.W.3d 598 (Ky. App. 2011), the Kentucky Court of Appeals recognized that when a requester is denied access to records based on the records' nonexistence, after the records' existence has been established, here in the Cabinet's response to Mr. Anderson's interrogatory, the requester is entitled to a "written explanation" from the agency. We believe the Cabinet should explain to Mr. Anderson the statement that appears in its answer to Interrogatory 19 and its statement on appeal that no determination on the named individual's competency had been made on or before May 11, 2015, and therefore no responsive records exist.