Request By:
Mr. Artis Anderson
Ms. Gail Huber
David T. Lovely, Esq.
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in the disposition of Artis Anderson's letter of March 6, 2017. While the Cabinet's response was untimely, we find no substantive violation of the Act.
Mr. Anderson submitted his letter to the Cabinet's Office of Inspector General and stated that he was requesting "all documents relating to the answering of the enclosed questions." No questions appeared in the body of the letter itself, although there were questions in a document attached to the letter. This document was a copy of a "Third Amended Motion for Department of Justice Referral" apparently filed by Mr. Anderson pro se in a federal civil appeal brought by him in the United States Court of Appeals for the Sixth Circuit against one Vanessa Dickson.
The motion, to the extent it is comprehensible in isolation, appears to be concerned with a guardianship proceeding for Mary Ellen Anderson a/k/a Mary Ellen Reynolds, whom Mr. Anderson identifies as his wife. The eight questions that appear toward the end of the motion have to do with the knowledge and mental state of a Dr. Quisenberry and whether he was paid by "the late Cheryl Webster"; how many times Ms. Webster spoke to Dr. Quisenberry or "the evaluation team" and whether Ms. Webster persuaded or paid them to say certain things; the reason why a Dr. Coburn made a certain statement under oath; and what evidence was considered by a Franklin District Court judge in regard to Mrs. Anderson's voting rights, including whether the judge was "aware of the fact that Mrs. Anderson (under the name Reynolds) was a registered Democrat in Woodford County." Nowhere in the questions is the Cabinet, the Office of Inspector General, or any identifiable public record mentioned. Mr. Anderson initiated this appeal to the Attorney General on March 20, 2017, after receiving no response from the Cabinet.
On March 22, 2017, a belated response to Mr. Anderson's request was issued by Program Coordinator Gail Huber, who stated: "The Office of Inspector General (OIG) has received your requests regarding information on Mrs. Anderson's funds, or on her care. A thorough review of our database revealed no records pertaining to your request." (Emphasis omitted.) Mr. Anderson responded with another letter on March 27, 2017, alleging that the Cabinet had control of Mrs. Anderson's funds and had "stolen or embezzled approximately $ 1,000,000.00 in less than two (2) years." He further stated his belief that his frequent use of the name Anderson instead of Reynolds might have caused some confusion in the Cabinet's search for records.
A response to the appeal was submitted on March 31, 2017, by Cabinet attorney David T. Lovely. He acknowledges that the Cabinet's response "came a few days late." KRS 61.880(1) requires a written disposition of an open records request within three days, excluding weekends and legal holidays. In light of the Cabinet's admission, we therefore find a procedural violation insofar as the response was untimely.
Substantively, the Cabinet argues first that Mr. Anderson "did not request any records," because he asked only for records related to his questions and he did not pose any questions in his letter. This argument overlooks the fact that Mr. Anderson referred to "the enclosed questions" and included the copy of his motion containing his questions.
The Cabinet argues secondly that "a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165. While this principle is correct, Mr. Anderson has not asked that a record be created or a list compiled.
This leaves the Cabinet's original response, to the effect that the Office of Inspector General does not possess any records relating to the questions raised by Mr. Anderson in his motion. 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. Given the tenor of Mr. Anderson's questions and the complete lack of any description of the records sought, there is no basis for a presumption that the Cabinet would have any responsive records. We therefore find no violation of the Act in the Cabinet's failure to locate any records in response to such a request.
Counsel for the Cabinet, responding to Mr. Anderson's follow-up letter of March 27, 2017, construes that letter as possibly giving an insight into what records Mr. Anderson might seek, if they are "financial records of one of the state's guardianship clients -- Ms. Mary Ellen Reynolds." The Cabinet asserts that this office has already adjudicated in 16-ORD-046, and again in 16-ORD-074, that Mr. Anderson may not view client records without verification of his entitlement to those records pursuant to KRS 209.140. If Mr. Anderson still has not provided such verification, 16-ORD-046 would indeed constitute an additional basis for affirming the Cabinet's disposition of his request for client records. In any event, we find dispositive the Cabinet's assertion of the nonexistence of any responsive records, and therefore conclude that no substantive violation of the Open Records Act occurred.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.