Opinion
Opinion By: Jack Conway, 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 Donald Ray Hall's June 19, 2013, request for copies of reports of domestic violence allegedly committed by him. For the reasons that follow, we find that the Cabinet did not violate the Act.
Mr. Hall requested copies of two reports that had allegedly been made to police by Melissa Lynn Hall concerning him. He provided both parties' dates of birth and Social Security numbers. After receiving some sort of reply from the Cabinet, which is not included in the record before us, Mr. Hall clarified to Open Records Administrator Sally Ireland on June 27, 2013, that he was "only requesting the records for the month of May 2000." On July 1, 2013, Ms. Ireland wrote to Mr. Hall:
Please be advised that the Records Management Section of the Department of Community Based Services was unable to identify any record response [ sic ] to your request regarding the above referenced individuals. It is to be understood that this does not mean that the records do not exist under another spelling, another name or under another classification, but that with the information furnished to our office and to the best of our knowledge, no such records exist in our files.
Handwritten at the bottom of the letter was the phrase "no reports of domestic violence. "
Mr. Hall appealed to the Attorney General on July 5, 2013, stating that he considered this response ambiguous as to whether any responsive records existed. On July 18, 2013, Assistant Counsel Carrie Cotton stated on behalf of the Cabinet:
[KRS 403.785] directs law enforcement agencies to report to CHFS, Department of Community Based Services (DCBS), all incidents of actual or suspected domestic violence. Despite that directive, if a report was not received by DCBS, the Cabinet will not then have a record.
Using the information provided by Mr. Hall, the Records Management Section of [DCBS] searched the Kentucky Information Management System (KYIMS) for archived records from 2000 to 2001, the archived report log of the local office from 1999 through 2006, and The Worker's Information System Technology Network (TWIST). There were no records of the type Mr. Hall requested found.
We find no violation of the Open Records Act. 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. While the reply from Ms. Ireland appears to be somewhat in the nature of a form letter, as it does not explicitly reflect the fact that all of the identifying numbers provided by Mr. Hall were used in the search, we find that it adequately conveyed the fact that no responsive records could be found. The Cabinet thus discharged its duty under the Act.
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.
Distributed to:
Donald Ray Hall # 153862Sally Ireland, Adm. Spec. IIICarrie Cotton, Esq.