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 Kenton County Coroner violated the Open Records Act in the disposition of Ronald Ferrier's May 9, 2016, request for all records pertaining to his daughter. For the reasons that follow, we find that the coroner failed to make a timely response to the request, but otherwise complied with the Act.
Mr. Ferrier's daughter, Christina Ferrier Maudlin, suffered a sudden and tragic death at age 24 from internal biological causes. In an effort to understand the factors contributing to her death, Mr. Ferrier hand-delivered a request to the office of the Kenton County Coroner for "the complete Coroner and Medical Examiner autopsy report and record," including "all records, in any form, in any media, [and] biological material removed from Christina." He attached a release signed by the surviving spouse, Jason E. Maudlin. Having received no response, Mr. Ferrier initiated an appeal to the Attorney General on May 19, 2016.
On June 8, 2016, Kenton County Attorney Stacy H. Tapke advised that copies of records had "now been provided directly to Mr. Ferrier," consisting of the death certificate, the Kenton County Coroner Death Investigation Report, Northern Kentucky Regional Medical Examiners' Office Autopsy Report, and Neuropathology Report from the Kentucky Chief Medical Examiner. On June 21, 2016, in response to an inquiry from this office, Ms. Tapke clarified that these were "[a]ll [the] records maintained by the Coroner relating to Mrs. Maudlin," and further:
The Coroner does not have any biological materials. As indicated in the report issued by the Northern Kentucky Medical Examiner, any tissue sections, DNA standard card, or blood samples would be housed and maintained at their office. Requests should be made to the Northern Kentucky Regional Medical Examiner's Office located at 85 North Grand Avenue, Fort Thomas, KY 41075.
She also provided the telephone number for that office.
Insofar as the Kenton County Coroner's office has now provided all records in its possession, this appeal is moot. The remainder of the appeal has to do with Mr. Ferrier's specific request for "biological material." We do not find a substantive violation of the Open Records Act because 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. By explaining that the regional medical examiner's office would maintain any biological materials, and providing the address, the coroner's office complied with the terms of KRS 61.872(4): "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. "
KRS 61.880(1), however, requires a public agency to respond to a request for public records within three days, excluding weekends and legal holidays. Since the coroner's office did not respond to Mr. Ferrier's request within that period, we necessarily find a procedural violation of KRS 61.880(1).
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.