Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services (CHFS) violated the Open Records Act in the disposition of Joe Gaddie's December 1, 2015, request for a copy of the letter from the special prosecutor to which Family Services Office Supervisor Wanda Nevins referred on June 4, 2015, during a telephone conversation with Mr. Gaddie, "related to Butler Circuit Court Case # 15-CR-48, which outlines recent changes in conditions of bond release for the defendant, Joe Gaddie in said court case, relating to visitation of his grandchildren. " Mr. Gaddie advised in his January 6, 2016, appeal that he submitted a request to both Ms. Nevins, who claimed to possess the letter as of June 4, and the Records Management Section of CHFS in Frankfort, Kentucky. A copy of the handwritten request which Mr. Gaddie delivered to Ms. Nevins, and the Open Records Request (Form DPP-010) which Mr. Gaddie directed to CHFS in Frankfort, were attached to his appeal.
By undated letter directed to Mr. Gaddie on December 3, 2015, CHFS -- Department for Community Based Services (DCBS), Records Management Section, acknowledged receipt of his request, but advised that Mr. Gaddie needed to complete the attached CHFS-305(s), Authorization for Disclosure of Protected Health Information, and return it by December 18, 2015, before his request could be processed "in accordance with federal and state laws." By letter directed to DCBS on December 9, 2015, Mr. Gaddie advised that the only document requested "is a letter that CHFS Supervisor Wanda Nevins (Butler County) stated she had in her possession" on June 4, 2015, "which Nevins stated had been sent to her by Commonwealth's Special Prosecutor Hannah Jarvis . . . regarding my case." Said letter "pertains to me only," Mr. Gaddie emphasized, "and does not involve any personal health information on anyone." Nevertheless, Mr. Gaddie also enclosed the completed CHFS-305 Form and returned it as instructed on December 9, 2015.
By letter dated December 21, 2015 ("RE: Letter from special prosecutor" ), the DCBS notified Mr. Gaddie that it "was unable to identify any record in response to your request regarding the above referenced individual(s)." However, DCBS further advised, "It is to be understood that this does not mean that the records do not exist under another spelling, another name or under another classification, but that with the information furnished to our office and to the best of our knowledge, no such record exist[s] in our files." Mr. Gaddie asserted that Ms. Nevins lied regarding the letter's existence, which "proves why Nevins refuses to comply" with his request, "and Joshua Gaddie cannot." Attached to Mr. Gaddie's appeal was a copy of the December 23, 2015, letter from his attorney confirming that he contacted Ms. Jarvis, the Special Prosecutor, and Ms. Jarvis advised "that she had not written a letter requesting that your visitation with the grandchildren cease during the pendency of the criminal action." Counsel indicated to Mr. Gaddie that he views it "as though no letter was ever created."
On appeal Mr. Gaddie specifically asserted that CHFS violated the Open Records Act in failing to post rules and regulations pertaining to public records in a conspicuous place in the local office, in failing to advise him in writing of the name and location of the official custodian of the agency's records, 1 and in ultimately failing to affirmatively indicate that no such letter existed rather than advising that it may exist under a different name, etc. Based upon the following, this office finds the agency's disposition of Mr. Gaddie's request procedurally deficient but substantively correct.
CHFS did not dispute the legally relevant facts regarding the procedural irregularities which precipitated this appeal. Citing KRS 61.872, but making no mention of KRS 61.876, CHFS instead advised that it "has established procedures in place for requesting open records." CHFS did not provide a copy of any rules and regulations containing those procedures. The agency's "local representative, in this instance Wanda Nevins, directed Mr. Gaddie to submit an open records request to the Cabinet's central office for processing of his request. Evidence of this fact is in Mr. Gaddie's description of the incident." On the same day Mr. Gaddie alleged that CHFS failed to provide information regarding where to obtain the records, "Mr. Gaddie did, according to his own admission, submit an open records request to the Cabinet's central office. " CHFS stated it "will strive to make the process easier on requesters to submit records requests to the proper custodian within the Cabinet."
Although Ms. Nevins apparently explained the procedure to Mr. Gaddie verbally, CHFS did not refute his assertion that no rules and regulations pertaining to public records were posted in a "conspicuous," i.e . prominent location somewhere in the local office. 2 Ms. Nevins would not have needed to verbally advise Mr. Gaddie regarding the correct procedure if the agency was in compliance with KRS 61.876, and 61.876(2) in particular. The Attorney General has long recognized that KRS 61.876, upon which Mr. Gaddie implicitly relied, 3 is aimed at ensuring that each public agency "will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a 'how-to' for persons who wish to submit an open records request." 94-ORD-12, p. 4. Even if CHFS has fully complied with KRS 61.876(1), which is unclear from the record, its failure to display the rules and regulations adopted thereunder in a prominent location accessible to the public is a violation of KRS 61.876(2). See 11-ORD-029; 13-ORD-035. The fact that Mr. Gaddie also submitted his request to CHFS in Frankfort has no bearing on the agency's duty to comply with KRS 61.876.
Upon receipt of Mr. Gaddie's request in Frankfort, CHFS -- DCBS issued a response that appears "to contain boilerplate language that was in no way correlated to [Mr. Gaddie's] particular request. This is an unacceptable practice that violates the express requirements of the Act and, in particular, the requirement of timely production of public records codified at KRS 61.880(1) ." 11-ORD-135, p. 2; 15-ORD-143. CHFS made no attempt to identify and locate a letter matching the description provided in the request and then determine whether it contained any protected health information or even determine whether such a record existed prior to requiring Mr. Gaddie to submit additional paperwork, which further delayed the processing of his request unnecessarily. In prior decisions, the Attorney General has consistently advised CHFS that "its practice of issuing what appear to be boilerplate responses to records requests in order to secure additional time for final disposition of those requests beyond the statutorily imposed three working day deadline is contrary to both the spirit and the letter of the Open Records Act. " 07-ORD-123, p. 5 (original emphasis); 07-ORD-030. These decisions confirm that CHFS is fully aware of its procedural obligations under KRS 61.880(1). See also 05-ORD-134, 07-ORD-030, 10-ORD-080, and 12-ORD-043, all involving divisions of CHFS.
However, the law is equally well-established regarding denials based on the substantive question presented. On appeal CHFS reiterated that its December 21, 2015, response to Mr. Gaddie, advising that no such letter was located, remains the same. Notwithstanding the somewhat equivocal nature of that response, suggesting that it did not check with Ms. Nevins, and its failure to initially provide any description of the search undertaken per 95-ORD-96, the fact remains that CHFS has now clearly stated that it "does not have a letter from a special prosecutor in regard to Mr. Gaddie in its possession [and] cannot furnish records that do not exist." CHFS assured Mr. Gaddie that the records custodian "thoroughly searched through the case files in the Cabinet's local office and central office to ascertain whether" the letter being sought existed "and after exhausting the search the Cabinet determined that no letter exists." CHFS did not refute Mr. Gaddie's assertion regarding Ms. Nevins' June 4 statement nor did CHFS explain why she would have made such a statement if CHFS had not actually received such a letter. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"). However, even assuming that Ms. Nevins told Mr. Gaddie that such a letter was in her possession, the fact remains that a public agency cannot produce a nonexistent record nor is a public agency required to "prove a negative" in order to refute a claim that a certain record exists under governing case law absent proof that such a record was ever created. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). If anything, Mr. Gaddie provided evidence which validates the agency's position that no such letter was created notwithstanding any statement by Ms. Nevins.
A public agency's response violates KRS 61.880(1), when it fails to advise the requesting party whether a record exists, but discharges its duty under the Act in affirmatively indicating that a record does not exist, following a reasonable search, as CHFS ultimately did here. See 04-ORD-205; 12-ORD-056. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. See KRS 61.880(2). The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in disputes arising under the Open Records Act are thus generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record(s), and, if so, whether the record(s) is open to public inspection. The former threshold is not satisfied here. With the exception of the noted procedural violations, the denial by CHFS of Mr. Gaddie's December 1, 2015, request is affirmed. Either party may appeal this decision by initiating action in the appropriate circuit court per 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 This office has long recognized:
Where public records are in the custody and control of the agency to which a request is directed, but the recipient of the request is not the agency's official custodian, the recipient must immediately forward the request to the agency's official custodian. . . . Where the public records are not in the custody and control of the agency to which the request is directed, the agency discharges its duty under the Open Records Act by so notifying the requester and furnishing him with the name and location of the official custodian of the agency in whose custody the records reside. KRS 61.872(4).
00-ORD-12, p. 3; 07-ORD-250. Here, any existing records would have been within the custody and control of CHFS and compliance with KRS 61.872(4) would have been rendered unnecessary if CHFS had explained its policy of processing all requests through its Frankfort office in rules and regulations posted in accordance with KRS 61.876. See 13-ORD-035.
2 See 14-ORD-172 (noting that "'prominent' is defined as '[i]mmediately noticeable; conspicuous ' and '[w]idely known; eminent'").
3 KRS 61.876 provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records.
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies.
(d) The procedures to be followed in requesting public records.