Request By:
Steven Farmer
P.O. Box 603
Dyersburg, TN 38029-0603Carrie Hall
Records Management Section
Division of Protection and Permanency
Cabinet for Health and Family Services
275 East Main Street, 3E-G
Frankfort, KY 40621-0001Jon Klein
Assistant General Counsel
Cabinet for Health and Family Services
Office of Legal Services
275 E. Main Street, 5W-B
Frankfort, KY 40621
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, 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 its disposition of the request submitted by Steven J. Farmer for "a paper printout of the email between th[e] Cabinet's Office of Inspector General . . . and Ramey-Estep Homes, Inc., . . . a subcontractor to th[e] Cabinet. . ." Because the Cabinet is not in possession of any record which is responsive to Mr. Farmer's request, and has affirmatively indicated that no such record exists in a written response to Mr. Farmer, it is the decision of this office that the Cabinet has discharged its statutory duty.
By letter dated April 26, 2005, Mr. Farmer directed his request to the Cabinet in care of "Lashauna Harris Custodian of Records." More specifically, Mr. Farmer requested "correspondence to and from Jay Johnson ( jjohnson@rameyestep.com ) and Traci Brent[,] an officer of th[e] Cabinet, . . . on or about 1[:00 p.m. on] January 2005[.]" According to Mr. Farmer, the topic of the electronic transmission "is the method by which Ramey-Estep Homes, Inc. took mail authorized to a Cabinet referral in its care, and gave same to a non-custodial parent of said referral for distribution to both public and non-public agencies." To reiterate, "there are no childrens' issues broached in requested e-mail-only adult issues of methods used to perform a task." Alleging that his request "was sent several days ago," but no response had been received, 1 Mr. Farmer initiated this appeal in a letter dated May 2, 2005.
Upon receiving notification of Mr. Farmer's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the Cabinet. Of relevance here, Mr. Klein observes:
A thorough review of existing records failed to produce any documents that matched the description given in Mr. Farmer's request. Thus, the Cabinet is not in possession of any documents that are responsive to his request. It logically follows that the Cabinet cannot comply with Mr. Farmer's request. See 02-ORD-144, p. 3.
Absent objective evidence to the contrary, this office has no reason to question the veracity of this assertion. Consistent with a long line of prior decisions, its disposition of Mr. Farmer's request is therefore affirmed.
As repeatedly recognized by the Attorney General, a public agency is not required to honor a request for records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 99-ORD-198; 98-ORD-200; 97-ORD-17; OAG 91-112; OAG 87-54; OAG 83-111. It stands to reason that the Cabinet cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has observed:
[A]n agency's inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9 [other citations omitted]. While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.
02-ORD-144, p. 3; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the Cabinet ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. When an agency denies the existence of requested records, it is "not incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute" absent a reason to question the truthfulness of the agency's assertion. 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. Rather, the role of the Attorney General in adjudicating an open records dispute is narrowly defined by KRS 61.880(1), and this office is without authority to deviate from that statute.
Although there may be occasions when the Attorney General requests that any agency substantiate its denial based on the nonexistence of requested records by demonstrating the efforts undertaken to locate the records or explaining why no such records were generated, consistent with the mandate of KRS 61.8715, 2 further inquiry is not warranted on the facts presented. Assuming that the Cabinet made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the Cabinet discharged its statutory duty, though that search yielded no results, by notifying Mr. Farmer that no responsive records were found. 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. Because the Cabinet is necessarily unable to produce for inspection or copying a record which does not exist, and has complied with the statutory mandate to notify Mr. Farmer of that fact in writing, this office finds no error in the Cabinet's disposition of Mr. Farmer's request for the specified e-mail.
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.
Footnotes
Footnotes
1 Noticeably absent from the record is any evidence to verify the date that Mr. Farmer's request was mailed or received. As long recognized by the Attorney General, this office is unable to resolve factual disputes of this nature. 04-ORD-059, p. 3; 03-ORD-061; OAG 89-81. Accordingly, this office makes no finding with respect to the actual delivery and receipt of Mr. Farmer's request or the timeliness of the Cabinet's response.
2 In relevant part, KRS 61.8715 provides: "The General Assembly finds an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . "