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; James M. Ringo, 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 the request submitted by Steven J. Farmer for a copy of the Bracken District Court Order from which "Mr. Klein cited my ' non-compliance ' with the imaginary dictates of a non-existent Court Order of 29 June 2004 as reason for this Cabinet's non-compliance with 'Federal Reasonable Effort.'" For the reasons that follow, we find that the Cabinet provided Mr. Farmer with a copy of the record responsive to his request, and thus, its actions in this regard did not violate the Act.
In a February 25, 2005 letter to Mr. Farmer, Jon R. Klein, Assistant Counsel, Office of Legal Services, advised him, in relevant part that on June 29, 2004, the Bracken District Court, among other things, ordered that Mr. Farmer submit to a psychological evaluation by a psychiatrist prior to any further consideration of reunification. Mr. Klein further advised him:
. . . At this point, you have not yet submitted an acceptable psychological evaluation (i.e. one that documents the use of accepted psychological diagnostic tests). Thus, you have not complied with the conditions precedent to consideration as a placement for your daughter as set out in the Court's June 29, 2004 order. The Cabinet will not consider making a new ICPC Home Study request to Tennessee on your behalf until you have complied with all of the conditions contained in the Court's July 29, 2004 order.
In a letter, dated April 29, 2005, addressed to LaShana Harris, Custodian of Records for the Cabinet, Mr. Farmer requested "a copy of said Court Order , in which possession Mr. Klein must have been on 25 February to make such a definitive position statement on behalf of this Cabinet or notice from you as to a location where I may 'view' said Court Order from which Mr. Klein drew his material for construction of his 25 February 2005 letter to me." In the letter, Mr. Farmer stated:
. . . in his 25 February letter to me, Jon Klein referenced the non-existent text of Judge Walton's 29 June 2004 Orders on Permanency entered, putatively, on 30 June 2004 by the Clerk of District 19, Division one into the Record of this Court as a primary reason for this Cabinet's declining to consider me as a reunification option in placing of my own child, or more correctly, Mr. Klein cited my " non-compliance " with the imaginary dictates of a non-existent Court Order of 29 June 2004 as reason for this Cabinet's non-compliance with "Federal Reasonable Effort,' . . . .
After receipt of notification of Mr. Farmer's appeal, Mr. Klein provided this office with a response to the issues raised in the appeal. In his response, he advised:
. . . Mr. Farmer should already have a copy of the June 29, 2004 Order of the Bracken District Court as he was present in court that day and was appointed an attorney. Even if Mr. Farmer were prohibited from contacting the court as he alleges, surely the court would provide case records to Mr. Farmer's court-appointed attorney.
As to the issue of whether Mr. Farmer does or does not have a copy of the June 29, 2004, we conclude that this issue is moot because a copy of the Order, marked as Exhibit 1 in Mr. Klein's response, was provided to Mr. Farmer along with a copy of the response. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Farmer has been provided a copy of the June 29, 2004, the issue as to access to that record is moot and no decision will be rendered in that regard.
Mr. Farmer seems to be arguing that the language in Mr. Klein's February 25, 2005 letter is based upon a non-existent court order or is challenging Mr. Klein's interpretation of the June 29, 2004 order. In his response to this claim, Mr. Klein explained:
The fact that Mr. Farmer was aware that the June 29, 2004 order was "putatively entered on June 30, 2004 also leads one to question why Mr. Farmer refers to the requirement that he submit to a psychological evaluation by a psychiatrist as "non-existent text" and "imaginary dictates of a non-existent court order." After all, how could a non-existent court order be entered into the record, even putatively.
Perhaps most noteworthy, though, is Mr. Farmer's statement in the final paragraph of his April 29, 2005 letter to the Custodian of Records that, "If Jon Klein can quote it, you as Custodian of Records, can produce it." Of course, the "it" Mr. Farmer is referring to is the June 29, 2004 court order I referenced in my February 25, 2005 letter. Notice that although I used the exact language of the order in my letter, I did not use quotation marks in any way in the paragraph that references the order.
Obviously the Cabinet could not provide a copy of a record that does not exist, i.e., a non-existent order. The Cabinet explained how the record responsive to his request was the June 29, 2004 Order, the Order referenced by Mr. Klein in his February 25, 2005 letter to Mr. Farmer, and, as noted above, Mr. Farmer was provided with a copy of that Order. The Cabinet discharged its statutory duty by providing an explanation addressing the issue and providing Mr. Farmer with a copy of the relevant Order.
Finally, we cannot address, in the context of an open records appeal, a complaint as to whether the Cabinet properly interpreted the Bracken District Court's June 29, 2004 Order. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the Cabinet violated the Open Records Act in its handling of Mr. Farmer's request, which, as noted above, we concluded it did not.
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.