Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,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 John Haight's February 22, 2016, request for "records related to the state mandated sale and current status" of the former house of Kenneth Brown, a person "currently cared for through state guardianship." For the reasons that follow, we find that a procedural violation of the Act occurred, but not a substantive violation as no responsive records existed.
Mr. Haight initiated his appeal on March 7, 2016, after receiving no response to his request directed to Chris Elliot of Guardianship Field Services in Ashland, Kentucky. On March 14, 2016, Cabinet attorney David T. Lovely advised that this request and an earlier one from Mr. Haight were internally mishandled:
The Cabinet's central office never received the requests from the field office through an unintentional mistake in processing. The Cabinet's central office now has notice of the requests and would like to extend a sincere apology to Mr. Haight for failing to adequately respond to his requests. There is no excuse for this oversight, other than it was an oversight, not intentional? .
?
[T]he Cabinet will work to amend its process so that this does not happen in the future.
Given this admission, we find that the Cabinet procedurally violated the Open Records Act. Hopefully the amendments to the Cabinet's internal procedures will prevent further such occurrences.
Substantively, the Cabinet advises that it possesses no records responsive to Mr. Haight's request:
The Cabinet is only a limited guardian of Mr. Kenneth Brown and as a result has no ability to dispose of property on Mr. Brown's behalf. Therefore, the Cabinet could not have ordered the home sold in mid-2015. If Mr. Haight has reason to believe that the home has been ordered sold by some other state government agency then the Cabinet has no knowledge of this, and no documentation indicating such.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. Given the Cabinet's explanation of its limited involvement with Mr. Brown, we find no substantive violation of the Open Records Act.
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 proceedings.