Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Cabinet for Health and Family Services ("CHFS") violated the Open Records Act in its disposition of William Walker's request for copies of three complaints. For the reasons stated below, we are unable to determine that CHFS violated the Act.
In his request, Mr. Walker ("Appellant") requested copies of "three complaints filed against me concerning my children . . . ." Appellant's request went on to describe the complaints and that he was interviewed on April 30, 2018, at the "Lyon Co. DCBS[,]" and provided the name of the social worker who interviewed him. Appellant submitted a copy of his request on the Open Records Request form specifically provided by the Office of Inspector General, Division of Regulated Child Care for Open Records requests. He also provided a copy of the return receipt, which he claimed showed that his request was received on January 9, 2019. Having received no response from the agency, Appellant filed an appeal with this office by letter dated January 28, 2019.
Upon receipt of the appeal, Jenna Davis, Office of Legal Services, timely responded on behalf of CHFS. CHFS stated that the Division of Regulated Child Care ("DRCC") has no record of ever receiving Mr. Walker's open records request:
While it does appear mailroom staff received the request on January 11, 2019, there is no record of DRCC ever receiving it. Although the certified mail green card receipt is absent a signature confirming delivery, the mailroom staff were able to confirm that Mr. Walker's request was delivered to a person with the initials J.R., however, after conducting a search, it was determined that there is no one in DRCC with those initials.
According to an attachment included with Mr. Walker's appeal, it appears the appropriate office to submit his request would be the Caldwell County Department of Community Based Services (hereinafter "DCBS"); Mr. Walker indicates he was interviewed by social worker Kala Stinnett from that office. He also indicates that such interview took place at the Lyon County DCBS so it may help to contact them as well. I have included the contact information for both of these offices, as well as the contact information for the DCBS central office below[.]
Receipt of Request . We first address CHFS' failure to respond to Appellant's request. In its response to the letter of appeal, CHFS indicated that DRCC had never received the request from Appellant. CHFS described what appears to be a good faith effort to determine where the request was received and where it went after receipt, but that effort was unsuccessful. This office has consistently acknowledged that it cannot conclusively resolve a factual dispute concerning actual delivery and receipt of a request. See 12-ORD-204. In the absence of incontrovertible proof that DRCC actually received Appellant's request, we assign no error to the lack of response to that request. 02-ORD-1 (the Attorney General "is not equipped to resolve a factual dispute concerning the actual delivery" of an open records request); accord , 15-ORD-014, page 3, n. 2. In the absence of proof that DRCC received the request, this office is unable to determine that a violation of the Open Records Act occurred with respect to Appellant's request.
To the extent that the failure to receive Appellant's request may have been an error on CHFS' part, we find that CHFS mitigated the error by promptly responding to the request after receipt of notification of the appeal. We do, however, urge CHFS to review its procedures for receipt of mail to ensure that it can meet its duties under the Open Records Act.
On appeal, CHFS stated that "According to an attachment included with Mr. Walker's appeal, it appears the appropriate office to submit his request would be the Caldwell County Department of Community Based Services[.]" CHFS provided the contact information for the Caldwell County Department of Community Based Services, as well as the Lyon County Department of Community Based Services because that was where Appellant was interviewed. Finally, CHFS also provided the contact information for the Department of Community Based Services central office. CHFS has complied with KRS 61.872(4) 1, the relevant provision of the Open Records Act, by providing Appellant with the contact information for the most likely custodians of the requested records. 08-ORD-204.
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.
Footnotes
Footnotes
1 KRS 61.872(4) states:
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.