Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether LifeSkills, Inc., ("LifeSkills") violated the Open Records Act in the disposition of David Smith's October 17, 2017, request for various records relating to persons transporting patients. For the reasons that follow, we find no substantive violation of the Act.
LifeSkills is a nonprofit corporation deriving approximately 30% of its funding from a contract with the Kentucky Department of Mental Health, Developmental Disabilities and Addiction Services. Among other activities, LifeSkills operates Behavioral Health and Development Service centers, a residential substance abuse center, and a community residence for the developmentally disabled. 1 LifeSkills does not contest its status as a public agency for purposes of the Open Records Act.
Mr. Smith addressed his request to the "Lifeskills Adult Crisis Stabilization unit," stating as follows:
It has been brought to our attention that your agency is using outside help to transport patients. ? We are aware that they must be appointed as Special Deputies for the local Sheriff Department. These people are considered as public servants and are subject to review in their capacity.
. A copy of all records to identify all personnel used to transport patients for Lifeskills?
. A copy of all records of the agency that is employed by Lifeskills to identify the employed agency.
. A copy of records as to the owner/owners of the transport vehicle/vehicles.
. A copy of all records to identify the transport vehicles, vehicle make, vehicle model, and vehicle year.
. A copy of records to identify liability insurance coverage and the carrier of insurance by the transport agency.
. A copy of records of the transport agency business license with the City of Bowling Green, Ky.
. A copy of records of training by each person for their ability to effectively do the job required.
If your office or direct reports do not maintain these public records, please let me know who does and include the proper custodian's name and address.
On October 20, 2017, David F. Broderick, counsel for LifeSkills, responded that he did not believe Mr. Smith's request was properly addressed because the LifeSkills Adult Crisis Stabilization Unit was not itself an entity, but "a service offered" by LifeSkills. He further asserted that "some of the information you have requested is not available." Mr. Smith's appeal was received in this office on March 29, 2018.
In a response to the appeal dated April 5, 2018, Mr. Broderick provided more detailed information than the initial response issued to Mr. Smith. In addition to arguing that LifeSkills was not properly made the subject of the request because it was addressed to the "Lifeskills Adult Crisis Stabilization unit," Mr. Broderick provided specific names and addresses of five individuals who provide transportation services in Warren County, Glasgow, and Tompkinsville, and the names of the Metcalfe County Jailer and the Barren County Constable. With regard to the request for records, however, he stated that LifeSkills is not in possession, custody, or control of any of the requested records because they are records of the employing agencies, or (in the case of "transport agency business license [s]") the licensing agency. Therefore, in summary, he argued that the "open records request is procedurally deficient [and] calls for the production of information that is not in the possess, custody or control of" LifeSkills.
We find no substantive 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. In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess.
KRS 61.8715 recognizes "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. " Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries. "[I]t is not, in general, within our statutory charge to resolve questions of fact or ? otherwise [to] act as a trier of fact." 09-ORD-170. In this case, the fact that the requested records are concerned with such internal matters as employment, training, insurance, licensure, and property of outside agencies is sufficient explanation for their not being within the possession, custody, or control of LifeSkills.
Procedurally, however, we do not accept the argument that Mr. Smith's request was deficient merely because it was addressed to the "Lifeskills Adult Crisis Stabilization unit" instead of "LifeSkills, Inc." KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
A reasonable employee receiving Mr. Smith's request would comprehend that LifeSkills, Inc., was the responsible entity. Therefore, as a public agency under the Open Records Act, LifeSkills was not free to decline a substantive response to Mr. Smith's request simply because he did not name the company correctly. The failure to give a full and final disposition of the request on October 20, 2017, was thus a procedural violation of the Act. 2
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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