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 ("Cabinet") violated the Kentucky Open Records Act in its disposition of a request by Eastern Kentucky Correctional Complex inmate James Potter for "records, contracts, attend[a]nce, receipts, bank statements and any other documents that would verify" that certain children were "attending the 3143 Br[o]adway Street location of Children's Creative Learning" in Paducah, Kentucky, "along with the exact dates of enrollment and attendance. (2002 thru 2005)." We find no violation of the Act.
Mr. Potter, in his appeal received in this office on September 7, 2017, presents a copy of a letter to the Cabinet's records custodian dated August 22, 2017, to which he states he received no response. In a response to this appeal on behalf of the Cabinet, legal counsel David T. Lovely indicates that the Cabinet has no record of having received Mr. Potter's request. Nevertheless, the Cabinet has attempted to locate the requested records and concluded that they would have been destroyed after five years in accordance with the records retention schedule for the Department for Community Based Services ("DCBS").
The Cabinet states that most of the records on Children's Creative Learning would fall under record series 06158, "Day Care Program Files," in the records retention schedule for the Department for Community Based Services, with the retention instructions "Retain in Agency five (5) years, then destroy. " Additionally, "[t]he Cabinet also maintains some investigative records into daycare licensure matters in the Cabinet's Office of the Inspector General (OIG)," although it "does not think any records responsive to Mr. Potter's request would be located" there. 1 This type of OIG records would be under record series 05397, "Child Care Licensure and Complaint File," in the retention schedule for the Office of Inspector General, Division of Regulated Child Care; the instructions state: "Retain investigation files in Agency seven (7) years from case closure or all exhaustion of appeals, whichever is longest, then destroy. Retain licensure files in Agency seven (7) years from most recent renewal, then destroy. " The Cabinet states that OIG records were searched, as well as DCBS records, and nothing responsive was found.
In response to a request from this office for the certificate of destruction for the records in question, the Cabinet advises:
Unfortunately, the Cabinet cannot determine the location of the destruction certificate. The Cabinet apologizes for its oversight, but it cannot locate the original accession number and as a result cannot locate the destruction certificate.
[The Cabinet] does believe any potential records would have been destroyed. Even if they were not destroyed Mr. Potter would not be able to access these records as the request pertains to specific children and all identifying information regarding children and their families would be removed from the documentation pursuant to KRS 61.878(1)(1), which allows any information made confidential by enactment of the General Assembly to be removed. Specifically, KRS 199.640(7) 2 requires the Cabinet to remove all information related to children and their families in this type of day care investigation.
Due to the age of the records in question, we find no reasonable cause to doubt the Cabinet's representation that they were destroyed pursuant to the applicable records retention schedule or schedules.
Mr. Potter replies that the destruction of the records either did not occur or was improper, due to pending federal criminal litigation, first commenced in 2008, against the owner of Children's Creative Learning, Tanashea Young. The Cabinet responds:
The fact that a criminal case may still be active on Ms. Young is immaterial to the Cabinet's record retention. At times the Cabinet coordinates with federal agencies, but it does not coordinate litigation with the United States Attorney's Office. The criminal case the United States has ongoing against Ms. Young does not involve working directly with anyone at the Cabinet. Whatever evidence the United States Attorney possesses is in exclusive possession of the United States Attorney. The Cabinet did not receive or issue a hold on any documentation involving Ms. Young because of ongoing criminal litigation.
We note that neither of the records retention schedules at issue contains instructions to retain any records in the event of federal criminal litigation against the owner of a day care. Therefore, the pending criminal matter does not affect the likelihood, or the propriety, of the Cabinet's destruction of the records in question.
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. When records are properly destroyed in accordance with a records retention schedule, there is no violation of the law. 15-ORD-144; 14-ORD-065. Thus, we find no violation of the Act, and deem it unnecessary to address issues under KRS 199.640(7).
The General Assembly has recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records." KRS 61.8715 . Since the Cabinet's inability to locate the original accession number in question has made it impossible to find the certificate of destruction, we refer this records management issue to the Department for Libraries and Archives for review and further action as it may deem appropriate.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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