Opinion
Opinion By: Gregory D. Stumbo, 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 violated the Open Records Act in the disposition of Steven Farmer's May 14, 2005, request for records pertaining to a form which indicated that Mr. Farmer had been diagnosed with a certain medical condition. For the reasons that follow, we find that the Cabinet's response was procedurally deficient but substantively correct.
In his May 14 request, to which he appended a copy of a Department for Community Based Services "Absent Parent Search Form," Mr. Farmer asked that the Cabinet provide a copy of documents which he described as follows:
1. This original A. P. S. Form with attached "diagnosis"
2. A copy of your or Brooksville DP&P's actual "diagnosis"
3. In lieu, a copy of the updated and corrected A. P. S. Form currently in file 105569.
Mr. Farmer alleges in his appeal that no reply was made to his request. The Cabinet's response to the appeal, submitted by Jon R. Klein, Assistant Counsel, does not indicate that the Cabinet ever responded to Mr. Farmer's request. We must therefore conclude that the Cabinet did not respond.
Mr. Farmer initiated an open records appeal on June 29, 2005, claiming that "[t]he requested record must exist for the Cabinet to make statements included in enclosed. " The Absent Parent Search Form contains a sentence reading: "When mother was divorcing him, Mr. Farmer had been diagnosed as [having the medical condition in question]."
In its response to the appeal, the Cabinet states:
Mr. Farmer enclosed an Absent Parent Search Form with a notation that he had been diagnosed [with the medical condition in question]. He now requests documentation of the original diagnosis or an updated and corrected Absent Parent Search Form, presumably one that does not refer to his diagnosis.
While Mr. Farmer asserts that the requested record must exist in order for the Cabinet to make such a statement, he is incorrect. The information contained on the Absent Parent Search Form he submitted was obtained from an interview with his former wife. The Cabinet is not in possession of any medical or psychological records that were used to form a basis for the statement on the Absent Parent Search Form that, as of November 20, 1991, when Mr. Farmer's former wife was divorcing him, he was diagnosed [with the medical condition] .
Mr. Klein further indicated that the Cabinet would not destroy its record and create a "corrected" copy omitting the reference to the diagnosis, which Mr. Farmer was apparently requesting it to do.
Since the Cabinet never responded to Mr. Farmer's original request, its handling of the request was procedurally deficient. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
This provision was violated by the Cabinet's failure to respond in any manner to the May 14 request. A failure to respond to an open records request is tantamount to a denial of the request without specific basis. 02-ORD-116.
We nonetheless affirm the Cabinet's constructive denial of the request for the reasons articulated by Mr. Klein in his July 25, 2005, response. Obviously, 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. Since it is entirely conceivable that the Cabinet could have learned of Mr. Farmer's diagnosis without being in possession of any related documents, as apparently it did, this is not a case in which the agency must explain why it has no such records in its possession. Cf. 94-ORD-140.
Furthermore, it is well established that the Open Records Act does not require an agency to create records. See, e.g., 05-ORD-151. The Cabinet has no statutory obligation to destroy its existing records or to create new ones more to Mr. Farmer's liking. Accordingly, although a procedural violation was committed in this case, we find no substantive violation of the Open Records Act by the Cabinet.
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 proceedings.
Steven FarmerP.O. Box 603Dyersburg, TN 38025-0603
Carrie HallCustodian of RecordsDivision of Protection and PermanencyCabinet for Health and Family Services275 East Main Street, 3E-GFrankfort, KY 40621-0001
Jon R. KleinAssistant CounselCabinet for Health and Family ServicesOffice of Legal Services275 East Main Street, 5W-BFrankfort, KY 40621