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 denying the request of Steven J. Farmer for copies of the "record of incarceration" and the "mental health record" signed by a licensed physician, and used "as a basis for [Cindy Atkins'] statement" that Mr. Farmer has "mental health issues," both of which are referenced in specified e-mails. Upon receiving notification of Mr. Farmer's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS. According to Mr. Klein, no such records exist; Ms. Atkins' statement that Mr. Farmer was incarcerated was "a misunderstanding, due in part to references in [his] numerous past communications with the [CHFS] to the effect that N.F. is a prisoner." Likewise, Ms. Atkins' statement that Mr. Farmer has "mental health issues" was merely a reference to the "Bracken County court's order that [Mr. Farmer] obtain an evaluation by a licensed psychiatrist." Neither comment was based upon any "record of incarceration" or "actual mental health records" in the possession of the CHFS. Citing 02-ORD-144, Mr. Klein reiterates that the CHFS does not possess any records which are responsive to Mr. Farmer's request; therefore, the CHFS is unable to comply.
As in 05-ORD-170, this office finds the reasoning of 05-ORD-109, a copy of which is attached hereto and incorporated by reference, to be equally applicable on the facts presented. Because the CHFS is necessarily unable to produce for inspection or copying records which do not exist, has affirmatively indicated as much to Mr. Farmer in a timely written response, and has offered a reasonable explanation for the nonexistence of the records requested, nothing more is required; the response of the CHFS is affirmed in its entirety. 1
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.
Steven J. FarmerP.O. Box 603Dyersburg, TN 38025
Carrie HallCustodian of RecordsDivision of Protection and PermanencyCabinet for Health and Family Services275 East Main Street, 3E-GFrankfort, KY 40621-0001
Cindy AtkinsOffice of the Secretary, OGCCabinet for Health and Family Services275 East Main Street, 5W-AFrankfort, KY 40621
Jon R. KleinAssistant CounselCabinet for Health and Family ServicesOffice of Legal Services275 East Main Street, 5W-BFrankfort, KY 40621
Footnotes
Footnotes
1 In supplemental correspondence directed to this office on August 29, 2005, Mr. Farmer concedes that the CHFS "has no [responsive record] and has not violated the [Open Records Act]."