Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Cabinet for Health Services relative to the open records request of Art Anderson violated the Open Records Act. For the reasons that follow, we conclude that, although we are unable to resolve the factual issue as to whether the Cabinet received Mr. Anderson's original request, the Cabinet's response, after receipt of notification of the appeal and a copy of Mr. Anderson's original request submitted with his letter of appeal, was proper and did not constitute a violation of the Act.
In his letter of appeal, dated August 16, 2003, Mr. Anderson indicated that, as of that date, he had received no response from the Cabinet to his open records request. Along with his letter, Mr. Anderson enclosed a copy of an open records request dated August 8, 2003, addressed to the Cabinet for Health Services, 275 E. Main Street, Frankfort, KY 40601. The request asked for "a copy of all permits requested and/or issued for the installation of waste management system(s) for property located at 326 Highway 3189 (Pulaski County Park Road) Nancy (Pulaski County), Kentucky, to either Gary o[r] Lucy Girdler as owners of said property" and "any regulation which exempts mobile homes waste disposual [sic] systems from being required to comply with the state's Plumbing Code."
After receipt of Notification and a copy of the letter of appeal, with the enclosed August 8, 2003 request, John H. Walker, Assistant General Counsel, provided this office with a response to the issues raised in the appeal. In his response, Mr. Walker, addressing Mr. Anderson's complaint that the Cabinet failed to respond to his request, advised:
The central offices of the Cabinet for Health Services building has approximately 3,000 workers assigned to work within the complex located at 275 East Main Street in Frankfort. Upon communicating with the Division of Public Health Protection and Safety within the Department for Public Health, the Office of General Counsel was advised that the Division had no record of receiving the request of Mr. Anderson. Apparently the broad address to which his request was sent, together with the fact that it does not identify an individual or a Department within the Cabinet may have caused the correspondence to be misdirected.
For the Cabinet's substantive response to Mr. Anderson's request (submitted to this office with a copy to Mr. Anderson), Mr. Walker indicated that the Cabinet checked with its Division of Public Health Protection and Safety to see if it had any of the records requested by Mr. Anderson. Division personal advised that permits for "waste management system(s)" were not issued by the Department for Public Health and may be issued by the Division of Water within the Natural Resources and Environmental Protection Cabinet. Further addressing the information sought by Mr. Anderson in his request, Mr. Walker advised:
. . . If Mr. Anderson seeks information on the number of permits for on-site sewage disposal systems issued to that address or to those property owners, those records are maintained within the local offices of the Lake Cumberland District Health Department rather than in the offices of the Cabinet for Health Services in Frankfort.
Mr. Anderson also has some concern over the application of the state plumbing code and whether waste management systems have been installed and operated in the area without benefit of prior inspection. Mr. Anderson further urges the Cabinet for Health Services to take immediate action to make certain the plumbing code is enforced and that all such systems are promptly inspected. The state's plumbing code is issued and enforced by the Department for Housing, Buildings and Construction within the Public Protection and Regulation Cabinet. Mr. Anderson may wish to direct his comments on the application of the plumbing code in Pulaski County to the Director of the Division of Plumbing within the Department for Housing, Buildings and Construction at its address: 1047 U.S. 127 South, Suite 1, Frankfort, Kentucky 40601.
If Mr. Anderson's home is subject to invasion by back-up sewage from a neighbor, he should contact the local health department and the local offices of the Division of Water within the Natural Resources Cabinet for assistance. The telephone number for the Lake Cumberland District Health Department in Somerset is 606-678-4761. I'm sure the local health department will gladly assist Mr. Anderson to the limit of its authority.
Unfortunately, without more information on the records sought by Mr. Anderson, it is not possible to produce them. If Mr. Anderson wants records of on-site permits issued to that address or to those property owners, he can confirm that request by writing to the following:
I'm sure Mr. Delius will work with the local health department to obtain whatever records it has that Mr. Anderson wants.
We are asked to determine whether the actions of the Cabinet violated the Open Records Act. For the reasons that follow, we find that the Cabinet's response, after receipt of notification of the appeal and a copy of Mr. Anderson's original request, was proper and did not constitute a violation of the Act.
Addressing first the failure of that Cabinet to respond to Mr. Anderson's original request, we have insufficient information to resolve the issue as to whether the Cabinet received the request or whether it was misdirected due the broad and general nature of the mailing address to the Cabinet. See 03-ORD-061.
Next we address the substantive response of the Cabinet to Mr. Anderson's request. KRS 61.872(4) provides:
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.
In the instant case, Mr. Walker notified Mr. Anderson that the Cabinet did not have custody or control of records of the type he sought. He then provided Mr. Anderson with names and addresses of the agencies that might have the records he was seeking. Accordingly, we conclude that this response of the Cabinet was in accord with KRS 61.872(4) and did not violate 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 proceeding.