Opinion
Opinion By: Jack Conway, 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 - Department for Income Support/Child Support Enforcement violated the Kentucky Open Records Act in the disposition of Samuel M. Gaddie's request to inspect portions of the CHFS Child Support Handbook, his "KASES Case Account Statement that is full and complete (CS-71 CS 71.1)" and his "Kentucky Obligation Worksheet, IV-D # 0001295436." By letter directed to Mr. Gaddie on January 5, 2011, Deputy Commissioner Steven P. Veno advised him that CHFS would comply with his request to "inspect those documents which are available to CSE, including: the Child Support Handbook and a statement from the KASES system pertaining to your child support case." However, Mr. Veno continued, as CHFS has "indicated on numerous occasions, this office does not have a copy of the child support calculation worksheet you reference in your request. That worksheet would most likely have been completed by an attorney in your private divorce action, and CSE does not have a copy of that document." CHFS cannot produce a nonexistent record or a record it does not possess for inspection or copying. This exact issue was conclusively resolved in 10-ORD-178.
Upon receiving notification of Mr. Gaddie's appeal from this office, CSE attorney Lisa F. Osborne responded on behalf of the agency, reaffirming its earlier position and reiterating that Mr. Gaddie was not denied access to any responsive records with the exception of the CS-71, which is "a record CHFS simply does not possess." Ms. Osborne also correctly observed that on September 9, 2010, the Attorney General issued 10-ORD-178 in which this office held that CHFS "discharged its duty under KRS 61.872(4) related to this matter since the Attorney General cannot '...compel disclosure of a record that the responding agenc[y] do[es] not possess..." and that 'Mr. Gaddie makes no showing, prima facie or otherwise, that . . . CHFS maintains a copy of the CS-71 . . .'" Inasmuch as 10-ORD-178 involved the same parties, record(s), and issues, the instant appeal presents absolutely no basis to depart from the analysis contained therein. A copy of 10-ORD-178 is attached hereto and incorporated by reference. CHFS is not required to "prove a negative" in order to refute Mr. Gaddie's repeated claim that it possesses a copy of the requested form.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). This matter is conclusively resolved from our perspective.
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. Samuel M. GaddieSteven P. VenoRyan KeithLisa F. Osborne